Ratified treaty;¹ Work of international supervisory bodies² 

Customary law not granting the right of intestate inheritance to female siblings/ Sex based discrimination / Use of international law as a guide for interpreting domestic law 

The Ngwaketse customary law rule provides that only the last born son is qualified as intestate heir to the exclusion of his female siblings. In this context, the applicants argued that the said rule, to the extent that it denies applicants the right to inherit intestate, solely on the basis of the applicants’ sex, is unconstitutional since it violates the right to equal protection by the law as per section 3(a) of the Constitution of Botswana. 

The applicants argued that, despite the fact that Botswana is a dualist country and the international treaties to which Botswana is a signatory do not have the force of law until incorporated into domestic law, “international law, though not binding, is persuasive and can offer useful guidance on the nature and scope of existing constitutional rights”.³ In particular, the applicants referred to the African Charter on Human and Peoples Rights (ACHPR) and the International Covenant on Civil and Political Rights (ICCPR). The respondent argued that the meaning of equality in any jurisdiction is influenced by the historical, socio-political and legal conditions of the society concerned, thus the Court shall take the entrenched custom into consideration.

 Following the applicants’ argument, the Court confirmed that “International Law, though not binding, is persuasive and can offer useful guidance on the nature and scope of existing constitutional rights.”⁴ On the point raised by the respondents, the Court considered that:

“It is axiomatic that by ratifying the above international legal instruments, states parties commit themselves to modify the social and cultural patterns of conduct that adversely affect women through appropriate legislative, institutional and other measures, with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men.”⁵

 In its analysis, the Court also considered that the Human Rights Committee has interpreted the right to equal protection under the ICCPR as not only providing for equality before the law and equal protection, but also as guaranteeing “to all persons equal and effective protection against discrimination on any of the enumerated grounds”, including sex.⁶ Moreover, the Court referred to articles 2 and 3 of the African Charter on Human and Peoples’ Rights and its interpretation as given by the African Commission on Human and Peoples’ Rights, holding that “no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or class of persons in like circumstances stated”.⁷

 By using the aforementioned international instruments and pronouncements by relevant international supervisory bodies in order to interpret section 3(a) of the constitution of Botswana, the High Court concluded that the Ngwaketse customary law, which permits only males to succeed in intestate succession, is unjustifiably discriminatory and unconstitutional.⁸