The Application of Non-Discrimination in Botswana in Light of Attorney-General of Botswana v. Unity Dow: Judicial Approach and Practice*
| Published date | 01 September 2001 |
| Author | Onkemetse Tshosa |
| Date | 01 September 2001 |
| DOI | 10.1177/135822910100500307 |
International Journal
of
Discrimination and the Law, 2001, Vol. 5, pp. 189-202
1358-2291/2001 $10
© 2001 A B Academic Publishers. Printed in Great Britain
THE
APPLICATION OF NON-DISCRIMINATION IN
BOTSWANA IN LIGHT OF ATTORNEY-GENERAL OF
BOTSWANA
V.
UNITY DOW: JUDICIAL APPROACH
AND
PRACTICE*
ONKEMETSE TSHOSA
Lecturer, Department
of
Law, University
of
Botswana
ABSTRACT
The principle
of
non-discrimination takes a pivotal position in human rights debate
both nationally and internationally. Elaborate provisions in international human
rights instruments and national Constitutions recognise this right as
one
of
the most
basic guarantees
of
the individual. This means that national legal systems should
create a conducive environment for the enforcement
of
this right. This article dis-
cusses judicial application
of
the principle
of
non-discrimination in Botswana. It
assesses the extent to which this concept has been implemented in the national law
of
Botswana in light
of
the Attorney General
of
Botswana v. Unity Dow.1 This case
does not only outlaw sex-based discrimination in Botswana
but
it is one
of
the few
judicial decisions in the country in which non-discrimination provisions
of
the Con-
stitution were extensively analysed. The article also examines the judicial approach
to the interpretation
of
constitutional human rights clauses and the possible influ-
ence
of
the decision within the constitutional order
of
Botswana and the Southern
African region generally. It is argued that the principles enunciated in the case
should inform and guide not only the Botswana judiciary
but
also courts in the
region especially the approach adopted
by
the court in interpreting non-
discrimination clauses
of
the Constitution.
INTRODUCTION
The
concept
of
non-discrimination,
or
rather equality
of
treatment
occupies a prominent position
in
human
rights discourse.
It
has taken
center-'stage in the
human
rights agenda both nationally
and
interna-
tionally. This is an acknowledgement
of
the
importance
of
this prin-
ciple in
human
rights debate. Moreover, it is an indication that the
complexity
of
non-discrimination and equality
of
treatment requires
special attention.
The
main aim
of
this
paper
is
to
examine and
evaluate
the
extent to which
the
concept
of
equality
of
treatment
of
all individuals has been implemented in the domestic legal sphere
of
Botswana
in
the
light
of
the
Attorney
General
of
Botswana
v. Unity
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