Women organisations in Botswana are worried that the country’s Constitution has no specific provisions for the protection and or promotion of women’s rights.
In their submission to the Secretariat of the Commission of Inquiry into the Review of the Constitution, women organisations from across the country through Gender Links said they demand standalone provisions that promote and protect women's rights and pay attention to violence against women; women’s leadership and political participation; women in workplaces, in marriage and family life.
In the document titled, ‘Molaomotheo – Buang Bomme,’ they explain that standalone provisions on women’s rights extend beyond general principles of equality and non-discrimination to explicitly naming rights and freedoms for women.
They believe that such clauses recognise that women require additional protection in specific areas to achieve substantive equality.
In addition, these help in the domestication of international conventions and standards and regional frameworks on gender and human rights, notably the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the SADC Protocol on Gender and Development, and the Sustainable Development Goals. They also believe that these serve as legal and policy mechanisms to hold the State accountable.
They have also borrowed from several African countries whose constitutions provide explicitly for women’s rights, and they believe Botswana can follow suit.
For example, the Constitution of Egypt states that “the State shall ensure the achievement of equality between women and men in all civil, political, economic, social, and cultural rights in accordance with the provisions of the Constitution.”
The Constitution of Malawi on the other hand states that “Women have the right to full and equal protection by the law, and have the right to not be discriminated against on the basis of their gender or marital status.”
The Constitution of Zimbabwe provides that: “All laws, customs, traditions and cultural practices that infringe the rights of women conferred by this Constitution are void to the extent of the infringement.”
The Constitution of Malawi states: “Any law that discriminates against women on the basis of gender or marital status shall be invalid and legislation shall be passed to eliminate customs and practices that discriminate against women.”
The Constitution of Ethiopia states: “The State shall enforce the right of women to eliminate the influences of harmful customs. Laws, customs, and practices that oppress or cause bodily or mental harm to women are prohibited.”
Gender and Development Consultant, Elsie Alexander told The Midweek Sun that they are hoping that before the set date of next week July 15, different organisations including faith-based organisations, youth-based groups, and the private sector will endorse their submission.
Among their contentions with the current constitution, is that Botswana has a dual legal system in which customary and statutory law are both applicable, as they co-exist and overlap and sometimes come into conflict. Several African Constitutions now seek to ensure that dual legal systems do not undermine women’s rights.
The Customary Law Act provides that customary law is valid only to the extent to which it “is not incompatible with the provisions of any written law or contrary to morality, humanity or natural justice”.
Some elements of customary law are non-compliant with CEDAW and other human rights instruments.
Section 88 of the Constitution states that the National Assembly cannot proceed with any Bill that would affect customary law unless a copy of the Bill has been referred to the Ntlo ya Dikgosi after it has been introduced in the National Assembly, and 30 days allowed for a response.
CEDAW specifically recommends the repeal of Section 15 (4) of the Constitution that ensures the operation of the customary justice system.
So far, Botswana has “noted,” the Universal Periodic Review recommendation that the country “adopt measures based on the principle of gender equality that protect women’s rights and safety and punish any discriminatory or harmful practice against them.”
Women organisations strongly recommend the introduction of provisions in compliance with all laws, including customary law, CEDAW, and other regional and international human rights instruments.