EMM, BM, JL and MKN v. MSR

The applicants alleged that the denial of their right to inherit the family residence intestate, solely on the basis of their gender, violated their constitutional right to equality.

Decision | 12 October 2012
High Court of Botswana - MAHLB-000836-10

Facts

The applicants, three sisters, were denied the right to inherit their parents’ estate according to a customary law which permits only men to inherit the family residence. The applicants claimed that this customary law violated their constitutional right to equality as it denied them of the right to inherit solely on the basis of their gender. The respondents claimed that the Botswana Constitution and culture provided for some discrimination, through application of customary law, to be justifiable. Therefore, the applicants’ right to inherit should be denied.

Decision and Reasoning

The Court found that customary law shall only be applied in so far as it is consistent with the Constitution. It claimed that the customary law in question amounted to unfair discrimination and was not only irrational but also an “unjustifiable assault on the dignity of the applicants and or women generally”. The customary law therefore violated the Constitution of Botswana. The Court also added that culture could never serve as basis for gross and unjustifiable discrimination.

Under the circumstances, the Court noted that excluding the applicants from heirs hip amounted to degrading treatment and constituted an offence against human dignity.