Court of Appeal, Attorney-General v. Dow, 3 July 1992, BLR 119 (CA)
General principle of equality
Use of international law as a guide for interpreting domestic law
Law not granting citizenship of Botswana to children from marriages between a woman from Botswana and a foreign husband/ Action of unconstitutionality/ Constitutional provision not expressly prohibiting discrimination based on sex/ Use of international law as a guide for interpreting domestic law
A citizen of Botswana married to a citizen of the United States asked the court to declare unconstitutional section 4 of Botswana’s law on citizenship. This section had been used to deny Botswana citizenship to children born of marriages between a woman from Botswana and a foreign husband, whereas all children whose father was a citizen of Botswana were recognized as Botswana nationals. The plaintiff alleged that this provision amounted to discrimination based on sex against two of her children, who were born in Botswana but "aliens in their own land".
The lawsuit raised the question of whether the Constitution of Botswana could be understood as permitting discrimination based on sex. There was indeed an apparent contradiction between sections 3 and 15 of the Constitution on this. Whereas the former section recognizes the right to enjoy a number of fundamental rights without discrimination on grounds of sex, section 15, specifically dealing with discrimination, does not include sex in the list of grounds of discrimination that are expressly prohibited.
The Court of first instance held that the Constitution could not be understood as permitting discrimination based on sex, and declared the section of the Act complained of unconstitutional. To bolster its argument, the court indicated that it preferred an interpretation of the Constitution in accordance with the international obligations of the State regarding non-discrimination.
That decision was the subject of an appeal by the Minister of Justice on the basis that a prohibition on sex as grounds for discrimination had been deliberately omitted from section 15 by the Constituent Assembly to reflect the patrilineal nature of the traditional culture of Botswana.2
On hearing the appeal, and to determine whether the Constitution really did allow discrimination based on sex, the Court of Appeal initially drew on the internal logic of the constitutional text and the general principles of interpretation to be taken into account in resolving the contradiction between sections 3 and 15 of the text. The Court raised three arguments leading it to declare the law on citizenship unconstitutional.
The court pointed out first that among the fundamental rights it lists, section 3 recognizes the right to equal protection by the law. Like all the rights cited by the provision, equal protection under the law must be granted without discrimination based on sex. The Court of Appeal therefore concluded that section 3 was a general prohibition of discrimination based on sex.
Moreover, the Court declared that section 3 was a general provision designed to clarify the purpose of interpretation of all provisions of the Constitution’s chapter on the fundamental rights of the individual. Accordingly, section 15 could not be read independently of section 3.
Finally, the Court held that to recognize that section 15 restricted the protections afforded by section 3 vis-à-vis differences in treatment based on sex, the restriction should be clear and unambiguous. This was not the case, since section 15 did not expressly exclude discrimination based on sex from its scope.
To bolster its interpretation of the Constitution, the Court then made reference to Botswana’s international obligations on non-discrimination. The Court noted that Botswana had ratified both the African Charter on Human and Peoples Rights and the International Convention on the Elimination of All Forms of Discrimination against Women. The Court endorsed the need to take international instruments into account in interpreting the Constitution, and decided for the annulment of section 4 of the Citizenship Act:
“(...) there is clear obligation on this country like on all other African states signatories to the charter to ensure the elimination every discrimination against their women folk. In my view it is the clear duty of this court when faced with the difficult task of the construction of provisions of the Constitution to keep in mind the international obligation. If the constitutional provisions are such as can be construed to ensure the compliance of the state with its international obligations then they must be so construed. It may be otherwise, if fully aware of its international obligations under a regime creating treaty, convention, agreement or protocol, a state deliberately and in clear language enacts a law on contravention of such treaty, convention, agreement or protocol. However in this case before this court the clear provisions of section 3 of the Constitution accords with the international obligations of the state whilst construing section 15 in the manner canvassed by the appellant will lead to the inevitable failure of the State to conform with its international obligation under international regimes created by the UN and the OAU. In this regard I am bound to accept the position that this country will not deliberately enact laws in contravention of its international undertakings and obligations under those regimes. Therefore the Courts must interpret domestic statutory laws in a way as is compatible with the State’s responsibility not to be in breach of international law (...).
In the light of all the foregoing therefore the Constitution must be held not to permit discrimination on grounds of sex which will be a breach of international law. Therefore section 4 of the Citizenship Act must be held to be ultra vires the Constitution and must therefore be and it is hereby declared null and void.”