THE TROUBLED ORPHAN: PROTECTION OF THE PROPERTY INHERITANCE RIGHTS OF ORPHANS THROUGH AFFIRMATIVE ACTION IN BOTSWANA’S 2019 LAND POLICY

Abstract

The proposed article examines proposals that affirmative action be the route through which inheritance rights of orphans would be effectively protected. These proposals were initially set out in Botswana’s 2015 Land Policy but were carried forward to the 2019 Revised Land Policy. While these proposals were designed to protect the property and inheritance rights of widows and orphans, the focus of this article will be on the protection of orphan inheritance rights.  This article builds on concerns highlighted by Ng’ongóla in his article ‘Reflections on Botswana’s 2015 Land Policy’ over the degree to which the 2015 Land Policy addressed problems in Botswana land tenure. While this article will examine the mooted affirmative action proposals which seek to protect the inheritance rights of orphans, it will restrict itself to the proposals contained in the 2019 Revised Land Policy. The premise of this article is that the proposed affirmative action(s) which identify the land and property rights of orphans as deserving of protection may not, on their own, actually do so. A central theme of this article is that affirmative action proposals must take into account ‘the best interests of the child’ laid out in the Children’s Act of 2009. There is however, a tension between the ‘the best interests of the child’ principle and the ‘ring-fencing’ of customary law in personal law in section 15(3) and (4) of the Constitution. There a nuanced intersection between customary law, constitutional protection of customary inheritance rights, patriarchy on one hand and legislation protecting children’s rights, human dignity as well Botho values that are inherent to Botswana on the other hand. Due however to these nuances, this article will be the first of a two-part series interrogating through a legal lens, the affirmative action proposals in the 2019 Revised Land Policy.