Officially, women in Botswana have the same civil rights as men – but not all legislation fully supports this principle. However, the country has a dual legal system in which common law and customary law exist side by side, as well as a long history of traditional laws, which are enforced by tribal structures and customary courts. As a result, societal discrimination against women persists in practice – particularly in rural areas and in relation to restrictions on women’s property rights and economic opportunities.
Legislation in Botswana falls short of granting women an equal level of protection within the family context. In 2001, the government changed the marriage law and increased the legal age of marriage to 18 for both sexes, conditional on parental consent (without parental consent, the legal age is 21). Previously, girls could be married with parental consent at the age of 14. According to available statistics, the prevalence of early marriage is much lower than in many other African countries. A 2004 United Nations report estimated that 5 per cent of girls between 15 and 19 years of age were married, divorced or widowed.
Marriage can be entered under three different laws, each of which has significant implications in relation to ownership rights (see below). In regards to women’s place in the home, all marriage laws give husbands a superior status. Traditional law allows for polygamy contingent on consent of the first wife, but the practice is not common. All marriages must be registered, regardless of the law under which they are recognised.
Parental authority within marriage generally rests with the father of the child. According to traditional law, a child born to an unmarried woman “belongs” to the mother’s family. Under more recent common law, unmarried mothers may use the Affiliation Proceedings Act to argue for sole custody, although this act has proven too restrictive and its enforcement is largely ineffective.
Both common and traditional laws grant children the right to inheritance from their parents. By contrast, under most traditional laws, wives are not entitled to inherit the bulk of the estate of a deceased husband. This is particularly true for high-value property. A similarly discriminatory practice is that traditional laws place unmarried women under the guardianship of their fathers and, upon the father’s death, under the guardianship of his heir(s), who is also granted ownership of any assets. Some traditional systems have relaxed this practice and now grant unmarried women legal inheritance rights to varying degrees.
To date, the law in Botswana does not specifically prohibit violence against women, including domestic violence which remains widespread. Under customary law and common rural practices, men are perceived to have the right to “chastise” their wives. Greater public awareness and improved legal protection have resulted in increased reporting of domestic violence and sexual assault. Nonetheless, police intervention is still rare.
The law prohibits rape, but does not recognise the concept of spousal rape. The minimum sentence for rape is 10 years; the penalty increases to 15 years with corporal punishment if the offender is HIV-positive, and to 20 years with corporal punishment if the offender knew of his HIV-positive status. Sexual exploitation and harassment continue to be problematic, particularly with men in positions of authority (including teachers, supervisors and older male relatives).
Legislation in Botswana generally protects the physical integrity of women. Female genital mutilation (FGM) is reported to not exist in Botswana, although information on specific legislation against FGM is limited. There is no reported evidence to suggest that Botswana is a country of concern regarding missing women.
Despite recent changes that support somewhat greater independence, Botswana’s legal framework grants women only limited ownership rights in relation to access to land, access to property other than land and access to bank loans. For the most part, women’s rights in these areas remain tied to marriage arrangements.
Women married under traditional law (or “in common property”) are viewed as legal minors and require their husband’s consent for access to property other than land, access to bank loans and any other legally binding contract. Women married under “community of property” are permitted to own immovable property in their own names; in this case, the law stipulates that neither spouse can dispose of joint property without the consent of the other. Under marriage “out of common property”, women are recognised as adults and retain full legal ownership rights. Increasingly, women in Botswana are exercising their right to marry out of common property.
Married women often control the day-to-day activities in the fields as well as the resulting food products and related income, but usually only during the first few years of marriage. Thereafter, the man and his relatives frequently assert control over all assets.
In the past, unmarried women required the assistance of male relatives to submit applications for land; they can now have independent and direct access to land.
Common law provides women in Botswana with civil liberty regarding freedom of movement and freedom of dress.
ECOSOC (United Nations Economic and Social Council) (2003), Integration of the Human Rights of Wo¬men and the Gender Perspective: Violence Against Women, E/CN.4/2003/75/Add.1, UN, New York, NY.
IPU (Inter-Parliamentary Union) (n.d.), Legislation and Other National Provisions: Botswana, Parliamen¬tary Campaign “Stop Violence Against Women”: Female Genital Mutilation, IPU, Geneva, www.ipu.org/wmn-e/fgm-prov.htm, accessed 26 July 2007.
Mokomane, Z. (2001), Laws Affecting Unmarried and Married Women in Botswana: a Theoretical Review, Communication at the International Colloquium Gender, Population and Development in Africa, UEPA/UAPS/INED/ENSEA/IFORD, Abidjan.
US Department of State (2002), Country Reports on Human Rights Practices: Botswana, US Department of State, Bureau of Democracy, Human Rights and Labor, Washington, DC.
US Department of State (2006), International Religious Freedom Report: Botswana, US Department of State, Bureau of Democracy, Human Rights and Labor.
US Department of State (2007), Country Reports on Human Rights Practices: Botswana, US Department of State, Bureau of Democracy, Human Rights and Labor, Washington, DC.
