University of Botswana Law Journal https://journals.ub.bw/index.php/ublj <p>The University of Botswana Law Journal is a peer refereed journal published twice a year. It provides a forum for scholars and practitioners to reflect on diverse legal issues of national reginal and international significance and of local and regional relevance.</p> University of Botswana en-US University of Botswana Law Journal 1817-2733 FOREWORD https://journals.ub.bw/index.php/ublj/article/view/2468 Thabo Fiona Khumalo ##submission.copyrightStatement## 2024-12-18 2024-12-18 31 i i REVISITING SPECIAL AND DIFFERENTIAL TREATMENT PROVISIONS IN THE WORLD TRADE ORGANISATION (WTO) DISPUTE SETTLEMENT SYSTEM https://journals.ub.bw/index.php/ublj/article/view/2469 <p><em>Special and differential treatment (hereinafter S&amp;DT) provisions in the DSU are designed to assist developing countries and least developed countries (LDCs) in the WTO dispute settlement system. These provisions are meant to address the likely disadvantages that these countries would face in a legal dispute against developed countries. The latter have more resources and litigation expertise, hence the need for leveling the play field by providing S&amp;DT provisions in the dispute settlement system. S&amp;DT provisions have been in existence under the GATT dispute settlement system. Currently, the DSU and other WTO Agreements provide some S&amp;DT provisions which may be used in the dispute settlement process. This paper seeks to evaluate the effectiveness of these provisions, whether they have been used and the impact of their use.</em></p> Jimcall Pfumorodze Emma Chitsove ##submission.copyrightStatement## 2024-12-18 2024-12-18 31 3 20 AN ASSESSMENT OF THE MEDICAL AID INDUSTRY IN BOTSWANA AND THE NEED FOR MEMBER PROTECTION https://journals.ub.bw/index.php/ublj/article/view/2470 <p><em>Medical aid sits in the intersection between health care and finance. It provides an essential financial tool that enables better management of medical expenses. There is a tension between the need to fulfil public health objectives while ensuring the prudential regulation of financial institutions. Therefore, for medical aid services and products to provide sufficient financial protection, it is imperative that their markets are sound and safe for members, with a robust institutional framework of Medical Aid Funds (MAF) regulation and supervision. This paper wishes to add to the growing call for more effective regulation of medical aid funds. To this end, an assessment and analysis of the extent to which members are protected will be undertaken. There is an analysis of the prevailing regulatory environment for medical aid funds. The paper argues that medical aid is a product sui generis which requires specific regulation. It provides recommendations on how this regulation will be achieved.</em></p> BARATILE BONOLO NTSHOLETSANG THABO FIONA KHUMALO ##submission.copyrightStatement## 2024-12-18 2024-12-18 31 21 40 IMPLICATIONS OF THE TRIBAL LAND ACT, 2018, ON THE RIGHT TO PROTECTION OF PROPERTY https://journals.ub.bw/index.php/ublj/article/view/2471 <p><em>This article will interrogate the recent amendment to the Tribal Land Act which led to the Act being repealed and replaced by the Tribal Land Act, 2018 (herein referred to as the ‘Tribal Land Act’), as well as the Deeds Registry (Amendment) Act of 2017&nbsp;(herein referred to as the ‘Deeds Registry (Amendment) Act’) and how they affect the right to protection of property as outlined by the Constitution of Botswana. &nbsp;This article will also investigate the Botswana Land Policy 2019 vis a vis the amendments and their effectiveness or otherwise in preserving the right to protection of property as envisioned in Section 3 of the Constitution of Botswana. Lastly, the article will provide a conclusion and outline possible recommendations if any</em>.</p> <p>&nbsp;</p> <p><a href="#_ftnref1" name="_ftn1"></a></p> TSHEGOFATSO MMAMOSADINYANA GAREEGOPE ##submission.copyrightStatement## 2024-12-18 2024-12-18 31 41 56 THE TROUBLED ORPHAN: PROTECTION OF THE PROPERTY INHERITANCE RIGHTS OF ORPHANS THROUGH AFFIRMATIVE ACTION IN BOTSWANA’S 2019 LAND POLICY https://journals.ub.bw/index.php/ublj/article/view/2472 <p><em>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.&nbsp; 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.</em></p> REFILWE S RASEROKA TEBOGO JOBETA ##submission.copyrightStatement## 2024-12-18 2024-12-18 31 57 74 ACCESS TO JUSTICE AND THE REFUGEE WOMAN IN AFRICA https://journals.ub.bw/index.php/ublj/article/view/2473 <p><em>Refugee women flee from their countries of residence for reasons including war, violence, conflict, harmful cultural practices, and persecution. They cross international borders to escape the violence from their countries of origin and find safety in their destination countries. For these women, they hoped that the countries of destination would offer the much-needed safety generally lacking in their countries of origin. However, is this significantly required safety generally attainable in the countries of destination in Africa? Could it be that, in most cases, the vulnerability of these women has exposed them to further violence, often with no criminal accountability? Using South Africa as a case study, this paper examines the vulnerability of refugee women to violence. It also discusses the various forms of violence they experience and the challenges they encounter in accessing justice. This article demonstrates that the cross-cutting expressions of violence against refugee women across the African continent, as well as the challenges they face in accessing justice, explain the expectation of safety they generally envisage in deciding to cross international borders. The paper draws on some best practices across the African continent to suggest ways of ensuring that refugee women are not only protected from violence but also that they can access criminal justice when violence does occur. </em></p> OGHENERIOBORUE ESTHER EBERECHI ##submission.copyrightStatement## 2024-12-18 2024-12-18 31 75 94 ANALYSING THE ROLE OF CHRISTIANITY IN THE CORONATION OF KING MISIZULU: https://journals.ub.bw/index.php/ublj/article/view/2474 <p><em>KwaZulu Natal has historically remained a province that has embraced indigenous identity and remains the only province to keep a decolonial name in post-apartheid South Africa. The problem today is the disappointment of recolonising the way in which Misizulu was coronated as the new king of the Zulu nation following the death of his father, king Zwelithini. This article critically analyses the role of Christianity as part of ki</em><em>ng Misizulu’s </em><em>coronation ritual. This article will further argue that reliance on the will to appoint a king is problematic because it brings a measure of legal uncertainty to the lineage of the KwaZulu Natal traditional leadership. Reference</em><em>s will also be made to judicial pronouncement</em><em>s where a similar fate of unsettling traditional leadership with legal uncertainty was enabled in a mission to achieve gender equality. The article will discuss the impact of such recolonization with particular reference to the limitation of the King’s option </em><em>to marry more than one wife. It will be argued that </em><em>courts must employ the true law</em><em>s of </em><em>indigenous communities and </em><em>not </em><em>effect distorted versions of indigenous law. Embracing African indigenous culture has been a topical issue in South Africa, sparking decolonial conversations. </em><em>The article thus analyses topical issue</em><em>s </em><em>that emerged in king Zwelithini's saga</em><em>, such as the </em><em>recolonization of traditional leadership, </em><em>the role of </em><em>Christianity, the prime minister, and wills.</em></p> AUBREY MANTHWA ##submission.copyrightStatement## 2024-12-18 2024-12-18 31 95 109