Law and the sexes: modernity and the metarmophosis of the legal status of women in Botswana

Abstract

One of the intractable issues that Botswana has had to grapple with since independence is the question of gender equality. The establishment ofParliament set two rule making systems on a collision course; the traditional law making system in which customary law is made on the one hand, and law making by Parliament on the other. Many of the laws that Botswana received from the Cape of Good Hope did not treat men and women equally. This was exacerbated by the fact that customary law, with its unequal treatment between the sexes, was allowed to continue to exist side by side laws made by Parliament. Today’s society is different in many ways. The level of education has risen; participation by women in the economic landscape has increased; there are more independent women who do not look up to any man for survival, women get voted into Parliament and the last census indicates that the population comprises more women than men. All these factors have dictated law reform to reflect the changing societal posture. The legislature has been challenged to re-think the societal norms that position men above women and to engage in process of law reform to ensure gender parity. The judiciary has also been challenged in its interpretative role to embrace modern equality jurisprudence. This paper traces the reform agenda since independence to determine the extent to which gender equality has been achieved. It will be argued that while the legislature has taken measures in advancing the reform agenda, it has done so in a manner that has created uncertainties in some areas, leaving judicial interpretation, with its own limitations, to remove sex based discrimination prevalent in the past. It is contended that outstanding ambiguities and uncertainties should be addressed through further revision of the law.