Botswana High Court strikes down male-dominated inheritance law system

[JURIST] The High Court [official website] of Botswana [JURIST news archive] on Friday struck down longstanding local customary laws that prevented women from inheriting their family home. Judge Key Dingake ruled that such laws are not in line with the Botswana constitution [AFP report], which guarantees gender equality. According to the legal rights group Southern Africa Litigation Centre [advocacy website], which supported the women plaintiffs, the five-year legal battle challenged an Ngwaketse customary law rule [BBC report] that allows for the youngest-born son to inherit the family home. By Tswana custom the family home is either inherited by the first-born or last-born son, depending on tribe. The plaintiffs in Mmusi v. Remantele [SALC case materials] are four sisters, all over 65 years old, who lived in the Mmusi family home about 50 miles south of Gaborone. Before dying their only brother left the home to his older half-brother, whose son later brought the present case to evict his aunts from the homestead. Arguing that the home was theirs by virtue of having contributed to its upkeep and expansion, Edith Mmusi and her sisters contested their 63-year-old nephew's claim in customary court in 2007, losing that challenge and the subsequent appeal. The sisters then turned to the civil courts, ultimately leading to the High Court's ruling striking down the customary law inheritance rules. SALC and other advocacy groups welcomed the ruling despite the position of the Botswana attorney general and the lower courts that undoing customary laws is damaging to the country's culture.

Inequality in inheritance laws has become a global focus, particularly regarding inheritance issues surrounding same-sex marriage [JURIST backgrounder]. In August a Minnesota trial court ruled that the state's Defense of Marriage Act [text] does not prohibit partners in same-sex couples from inheriting each other's assets, holding that while the Defense of Marriage Act bars same-sex couples from marrying, it does not prevent same-sex couples from having the same inheritance rights [JURIST report] as heterosexual couples. One year earlier Chilean President Sebastian Pinera [official profile, in Spanish] proposed legislation that would legalize same-sex civil unions [JURIST news archive], extending inheritance and social welfare rights to same-sex couples [JURIST report] and unmarried heterosexual couples. In May 2011 the Supreme Federal Court of Brazil [official website, in Portugese] unanimously recognized legal rights for partners in same-sex civil unions [JURIST report], entitling gay couples in "stable relationships" to rights to community property, alimony, health insurance and tax benefits, adoption and inheritance rights. In August 2010 Germany's Federal Constitutional Court [official website, in German] ruled that a portion of the tax code requiring same-sex partners in a civil unions to pay a larger inheritance tax than partners in opposite-sex marriages [JURIST report] is unconstitutional.

 

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