Gender equality under Customary Law

In contrast to Common Law, Customary Law and practice in Botswana continue to perpetuate unequal power relations between men and women.  Men continue to be treated as the head of the family with guardianship rights over women and children.

• In spite of the introduction of the Abolition of Marital Power Act, women married under Customary Law are not covered by the legislation on abolition of marital power.  The Government does plan to address marriages under Customary Law in the future, but there was opposition to the Abolition of Marital Power Act within the Ntlo ya Dikgosi.


• A mother has no maintenance rights under Customary Law when children are born out of wedlock.  The father should pay the mother’s father compensation for damaging the family reputation, but has no duty to support the child.  The child’s maternal grandfather has a duty of support towards the child of his unmarried daughter.  This situation reflects the view that a woman remains her father’s ‘property’ until marriage, when she becomes her husband’s property.  Similarly, the father of the child has no visitation rights, as the child is considered to belong to the mother’s family.  This situation discriminates against both the mother and the father, and removes the child’s right to maintenance and to a relationship with his/her biological father.


• Under Customary Law, if parents are married and separated, the custody of the child(ren) is traditionally granted to the father’s family, with the mother only having the right to visit.  


• Although Common Law does not allow persons below the age of 18 to marry, under Customary Law a child can be married, which often results in girls being forced into marrying someone against their will.  When married, they are also forced to leave school.


• Where there is no written Will (which is typically the case), male children’s rights to inheritance under Customary Law take precedence over female children’s rights, the latter sometimes being disinherited.  Children born out of wedlock can only inherit from their mother and generally are not entitled to succeed their father, either.

Customary law also has the effect of limiting the resources available to women to protect themselves against sexual assault as male power is embedded in and operates within the rules and practices of social and legal institutions.

http://www.ditshwanelo.org.bw/gender.html#gen