Gender Wars: Tackling the Sexist Nature of Botswana’s Legal and Justice System

There are systemic orders that the world is obligated to dismantle, including racism, imperialism, and cultural prejudices. Among them lies the unfortunate existence of a patriarchal society, one that allows men to benefit from a gender-imposing, stifling system. Because of this, Botswana has laws that overlook the unfairness of this generational system. In this subject matter, we are obliged to tackle Botswana’s customary law, gender-discriminatory legislation, and generally how women are affected by the government’s inefficiency in addressing these issues.

The Sexism in Botswana’s Customary Law and Its Impact on Gender Equality

It is important to understand that Botswana’s customary law was established to officially recognize into the legal system the customs of the country’s several distinct indigenous populations. However, in that effort, sexist cultural practices, derived from our traditional background, seeped into the customary legislation of the state. Customary law is subjective to the norms of each cultural group, and clear examples of its sexist nature can be found in cases such as Ramantele v Mmusi [2013] BWCA 1 (Botswana) and Attorney General of Botswana v Unity Dow [1992] B.L.R. 119 (CA), where the rights of women regarding inheritance and their children’s citizenship were challenged due to the nature of the customary provisions in the country. While it is important to note that Botswana’s customary law was deemed unconstitutional in 2018, when the courts ruled that women would no longer be considered second-class citizens, the impact of this ruling remains questionable, given the influence customary law still has over domestic proceedings. This is particularly true because these same provisions are often upheld by Batswana when they affiliate themselves with their respective tribal cultures.

The Persistence of Gender-Discriminatory Legislation and Its Impact on the Rights and Safety of Women and Girls

When discussing protective provisions for women in the country, it is important to address the several factors that affect the productivity of women and their ability to contribute meaningfully to society. Among these issues is the fact that Botswana’s legislative provisions against workplace discrimination are limited. Currently, only provisions against termination and retaliation are provided. However, there are no provisions addressing employment opportunities and hiring, equal pay for equal work, training, promotions and demotions, discrimination based on marital status, family status, or pregnancy (with the prohibition only applying to termination based on marital status), or indirect discrimination. This means that the workplace is not a conducive environment for women to learn, grow, and thrive within their rights and qualifications. To further worsen this situation, there are no provisions addressing sexual harassment in the workplace.

Additionally, there is a reluctance when it comes to legislative action regarding young women. There should be more accessible channels for the provision of abortion clinics, yet the fact that this is not a pressing issue for Parliament is a clear oversight of the struggles faced by sexual assault victims, rape victims, defilement victims, and the health complications that can arise from unwanted pregnancies and prolonged terms. Generally, the law appears indifferent to the issues women face daily, despite their critical role as stakeholders in society.

The Impact of Government Inefficiency on Women’s Rights and Well-being

Just this December, 10 women were murdered, and 100 were raped. While the justice system cannot be blamed for every shortcoming that persists due to the criminal nature of society, there must be a level of accountability for its failures to protect women. Within the country, the number of passion killings/femicides is alarming, and most of these killings occur at the hands of soldiers, who are supposed to protect and serve the members of the state. Furthermore, 61% of all reported crimes in the country are gender-based violence-related crimes. This statistic overlooks the dark figure of crimes that have yet to be reported and dealt with. The problem persists, yet protective legislation for women is placed on the back burner, while their fears are often perceived as dramatized or over-exaggerated. 

Not long ago, Advocate Unity Dow requested that the government establish, as a matter of urgency, peace desks and assign officers at Magistrate Courts and police stations to facilitate and enable the use of Section 335 of the Criminal Procedure and Evidence Act as a quick, effective, and efficient procedure for the protection of victims of GBV. This request was denied in Parliament, even though it called for affirmative action for the state’s protection of women. This clearly highlights the inherent inefficiency of the government in taking legislative measures to help protect women.

It is important that when we discuss governance, we do not overlook those vulnerable in our society. Not only do the laws that govern us have sexist contexts, but the leadership of the day continuously fails to provide a safer space for the women of our nation. It is sad that the system has silenced even the quiet tears. What we call for is an attentive government that places the right provisions in place and does not overlook the necessary protections, both in the legal and judicial spheres.