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 of
Parliament 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 lawmaking
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 refl ect 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.