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This material is reproduced with permission from the copyright holder.

The Citizenship Case

The Attorney General of The Republic of Botswana

vs

Unity Dow

 

Court Documents, Judgements' Cases and Materials

Compiled and edited by Unity Dow

[end of page i]

Published by LENTSWE LA LESEDI (PTY) LTD, PO Box 2365, Gaborone. Tel 314017, Fax 314634 on behalf of

 

Metlhaetsile Women's Information Centre, Private Bag 42, Mochudi. Tel/Fax 377347

 

First Published 1995

 

Copyright © Unity Dow 1995

 

All rights reserved. No part of the original work contained in this publication may be reproduced, stored in a retrieval system, or transmitted by any means without the prior permission of the copyright holder.

 

ISBN 99912-71-02-4

Typeset and designed by LENTSWE LA LESEDI (PTY) LTD Cover design by LENTSWE LA LESEDI (PTY) LTD

[end of page ii]

Dedicated to my parents, siblings

husband and children,

my very best friends!

[end of page iii]

[end of page iv]

Contents

 

 

Acknowledgements

 

Foreword

 

Preface

Section I.

Unity Dow vs. the Attorney General -- High Court Documents

 

 

 

1.

Applicant's Notice of Motion

3

 

2.

Applicant's Founding Affidavit

5

 

3.

Respondent's Notice of Intention to Raise Questions of Law

8

 

4.

On 'The Applicant's Locus Standi

9

 

5.

Applicant's Heads of Argument

10

 

6.

Respondent's Heads of Argument

14

7.

High Court Judgement by Judge Martin Horwitz

30

Section II.

The Attorney General vs. Unity Dow - Court of Appeal Documents

43

 

 

 

 

1.

Appellant's Notice of Appeal

45

2.

Respondent's Affidavit Alleging Further Evidence

47

 

3.

Appellant's Affidavit

48

 

4.

Appellant's Heads of Argument

49

 

5.

Appellant's Further Submissions

93

 

6.

Respondent's Heads of Argument

96

7.

Respondent's Main Heads of Argument

108

 

8.

Court of Appeal Judgements

123

a) Amissah, Judge President

123

 

 

b) Acuda, Judge of Appeal

159

 

 

c) Bizos, Judge of Appeal

174

 

 

d) Schreiner, Judge of appeal

180

 

 

e) Puckrin, Judge of appeal

190

Section III.

Annotated Bibliography and Table of Cases Cited

197

 

 

 

 

1.

Annotated Bibliography of Selected Case

199

 

2.

Table of Cases

220

 

Index

225

[end of page v]

Acknowledgements

I am deeply grateful to many people for the support they have given me during the four years during which I lived and survived the `Citizenship Case'. More particularly, my gratitude goes to

1.

My husband Peter who served as the `court of first instance' and whose `judgement' gave me the confidence to proceed with the case.

2.

My children Cheshe, Tumisang and Natasha, without whom there would have been no case.

3.

My parents Malefshane and Phiri who taught me fairness and equality between the sexes.

4.

My siblings Lesang, Sedikwa, Motlogelwa, Tiny, Mmusi and Mpho, who were both fearful for and proud of me.

5.

My parents' neighbour Susannah, for not missing a single court appearance and for passionately believing in me.

6.

The staff and associates of tile Women and Law in Southern Africa Research Project for believing enough in the case to raise funds for its pursuit.

7.

Bert Lockwood Jr. of the Urban Morgan Institute of Human Rights, Cincinnati and his students, for researching for and providing much needed cases and materials which were not available in local libraries.

8.

Marsha Freeman of the International Women's Rights Action Watch (IWRAW), Minneapolis, Minnesota for pointing me in the right direction when I became lost.

9.

My colleagues and friends, amongst them, Puseletso Elizabeth Kidd, Athaliah Molokornme, Gloria Somolekae, Elvis Somolekae, Joseph Malatsi, Charles Bewlay, Maikano Senthufhe, David and Yvonne Suggs, and Lady Ruth Khania who in their own different ways assured me that I was right and gave me the strength to continue with the case.

10.

Advocate Jules Browde, for arguing the case before both the High Court and the Court of Appeal.

11.

The Swedish International Development Authority (SIDA), for generously providing tile funds which made it possible for the advocates and myself to work on the case for as long we did.

12.

Meg Le Ronghe, who although coming at the tail end of the case, did the very important task of assisting in the annotation of cases for compilation in this case book.

As an attorney of the courts of Botswana I feel I must, without reservation or regret, acknowledge Deputy Attorney General Ian Kirby who gave his side of the case his very best, for, in an adversarial legal system such as ours, the significance of a case very often depends on how seriously both parties consider it to be.

[end of page vi]

My training as an attorney restrains me from extending my gratitude to Judge Martin Horwitz and thus I take off my robe and declare, in my capacity as victim, my sincere thanks to Judge Horwitz for significantly advancing the cause of women. His decision demands more than the formal "as the court pleases".

 

It is not possible at all to acknowledge all people who have played a special role in this case. There was, for example, my librarian friend Setumile Morapedi who believed so much that a book I was looking for was in the library she spent five long hours searching for it and did not quit until she had it in her hand. Contributions were many and varied, from words of encouragement, letters of support, flowers and cash to simply being there.

 

At the end of four years I had cried with sadness and laughed with triumph. I had felt both victimized and validated. I had felt both isolated and embraced. I had lost old friends and gained new ones. I had met opposition where I had expected support and received support from unexpected quarters. I survived. I continue to survive.

 

Unity Dow

 

November 1994

[end of page vii]

Foreword

 

Unity Dow successfully challenged the legitimacy of the Citizenship Act which denied Botswana citizenship to her children on the basis that her husband is a foreigner, even though she herself is a citizen of Botswana but she did not stand in court merely for herself, or only for the women of Botswana who are married to foreigners. She also stood in court to represent all the women of Botswana who are treated as second class citizens under the various discriminatory laws. For the women of Africa Unity's victory is our victor.

 

The gender discrimination which is inherent within the Botswana Citizenship Act was found first by the High Court, and later by the Court of Appeal, to be in violation of the Constitution. Therefore this case was a particularly important test case, because it raised a constitutional issue which lies at the heart of any democratic system of government: the issue of whether government legislation and administrative practice conforms to the guiding principles of the Constitution. Such conformity is fundamental to rule of law.

 

At the time of writing it is not clear that the Botswana government is willing to conform to this basic aspect of democratic governance.* In the two years since the Court of Appeal reaffirmed the earlier High Court decision in favour of Unity, the government has taken none of the necessary action which should follow: it has not granted Botswana citizenship to Unity's children; it has not amended the Citizenship Act to provide gender equality in access to citizenship; it has not moved to amend all the other laws which are, by implication, similarly made unconstitutional by the court decision in the Unity Dow case.

 

Such flagrant contempt for the rule of law reveals the arrogance of patriarchal power. There are close parallels in Zambia. In 1992 I myself got a High Court ruling that hotels' discrimination against unaccompanied women contradicts basic rights given in the Zambian Constitution; but this discrimination by hotels still continues. In 1990 Edith Nawakwi got a High Court Ruling that it is unconstitutional for the government to require written permission from the father of her children before putting the children's names on her passport. Four years later the Zambian government maintains the same discriminatory requirement.

 

As with the Unity Dow case these cases have also exposed the governments' lack of any ideological or legal legitimation for a state system of gender discrimination. But in each case a government behaves as if nothing has happened. In the face of such patriarchal intransigence the test case clearly needs to be part of a larger liberation strategy. Political mobilization of the sisterhood in Africa is needed to push governments to meet their constitutional responsibilities to women. A test case can provide a necessary and powerful weapon in the women's struggle for equal treatment, but it is not sufficient in itself.

 

The long struggle against racial apartheid in southern Africa has finally come to an end but the struggle against gentler apartheid is just beginning.

 

Sara Hlupekile Longwe, Lusaka, 9 January 1995

[end of page viii]

Preface

 

On the 3rd day of July 1992, the Court of Appeal of the Republic of Botswana delivered its decision in the celebrated case of the Attorney General a Unity Dow CA No. 4/91, thus making a final pronouncement in the case which had come; to be dubbed as The Dow Case or The Citizenship Case. This book is a report of the proceedings of the High Court and the Court of Appeal. It presents the courts' documents and judgements, as well as an annotated bibliography of relevant selected cases.

 

The Heads of Arguments filed by both parties at the various stages of the case, as well as the six judgements, contain a wealth of information on legal issues covering, among others, constitutional, human rights, family and customary law. The documents have been reproduced in their original form except for typography, punctuation and layout. The cases cited by the parties to the proceedings, and by the judges, come from various jurisdictions and thus bring an international perspective to the case.

 

The annotated bibliography should be useful in providing the reader with enough information for her/him to determine whether the particular case would he of use to her/him. For the Botswana reader, the case may not be available in local libraries and therefore the annotations should be of value.

 

Neither the High Court nor the Court of Appeal judgements arc reported. This case book thus provides the only publication in which the complete documents can be found. This case book will thus be of value, to students, lecturers and practitioners of law as well as to judges, magistrates and human rights activists.


 

*The Government of Botswana is currently briefing the nation, through kgotla meetings, on the Attorney General vs. Dow decision. A document prepared by the Ministry of Labour and Home Affairs proposes changes to the present Citizenship Act which would make all aspects of the Act gender neutral. Compliance with the Court of appeal judgement is expected before the end of the year. Unity Dow, May 1995.

[end of page ix]

[end of page x]

Section I

 

Unity Dow Vs. The Attorney General

 

High Court Documents

 

[end of page 1]

[end of page 2]

 

1. Applicant's Notice of Motion

 

 

 

TAKE NOTICE that I, UNITY DOW (hereinafter called the Applicant) intend to make application to this Court and you are hereby called upon to show cause why an order should not be made in the following terms:

 

 

(a)

Declaring Section 4 of the Citizenship Act ultra vires Section 3 of the Constitution of the Republic of Botswana in so far as the said Section 4 discriminates against women.

 

 

(b)

Declaring Section _5 of the Citizenship Act ultra vires Section 3 of the Constitution of the Republic of Botswana in so far as it discriminates against women.

 

 

(c)

Declaring Section 13 of the Citizenship Act ultra vires Section 3 of the Constitution of the Republic of Botswana in so far as it discriminates against women.

 

 

(d)

Ordering and directing that Sections 4 and 5 of the Citizenship Act be gender neutral and that the protective provisions of the said sections extend and apply to children of all citizens of the Republic of Botswana.

 

 

(e)

Ordering and directing that Section 13 of the Citizenship Act be gender neutral and that the protective provisions of the said Section extend and apply to spouses of all citizens of Botswana.

 

 

(f)

Declaring Sections 4, 5 and 13 of the Citizenship Act ultra vires Sections 7 of the Constitution of the Republic of Botswana.

 

 

(g)

Declaring Section 4, 5 and 13 of the Citizenship Act ultra vires Section 14 of the Constitution of the Republic of Botswana.

 

 

(h)

Declaring the Applicant's children Tumisang and Natasha to he citizens of Botswana notwithstanding any other citizenship they may have.

 

 

(i)

Declaring the Applicant's spouse Peter Nathan Dow to be entitled to make application for naturalization under section 13 of the Citizenship Act.

 

and that the accompanying affidavit of UNITY DOW will be used in support thereof.

 

TAKE NOTICE FURTHER that the Applicant has appointed PBAG 00201, 390 INDEPENDENCE AVENUE, GABORONE, as the address at which she will accept notice and service of all process in these proceedings.

 

 

TAKE NOTICE FURTHER that if you intend opposing this application you

are required to

 

(a)

to notify the Applicant in writing on or before the 3rd day of July 1990.

 

 

 

and

 

 

(b)

within 14 days of the Service of this notice upon you to file your answering affidavits, if any; and further that you are required to appoint in such notification an address within Botswana at which you will accept notice and service of all documents in these proceedings.

[end of page 3]

If no such notice of intention to oppose is given the application will be made on a day to be allocated by the Registrar.

 

Dated at Gaborone this 22nd day of June 1990.

 

To:

The Attorney General of the Republic of Botswana

Private Bag 009

Gaborone

 

And To:

The Registrar of the High Court

Private Bag 1

Lobatse

 

[end of page 4]

 

2. Applicant's Founding Affidavit

 

I the undersigned

UNITY DOW

 

do hereby make oath and state that:

 

1.

I am the applicant referred to in these proceedings and the facts herein deposed to are save where otherwise indicated, or where it appears from the context, within own personal knowledge and belief. Such facts are true and correct.

 

 

2.

The Respondent is the Attorney General of the Republic of Botswana so cited in terms of Section 4 of the State Proceedings (Actions by and against Government or Public Officers) Act.

 

 

3.

I have by notice dated the 4th May 1990 informed the Attorney General of the Republic of Botswana of my intention to commence these proceedings.

 

 

4.

1 am an adult female Botswana citizen by birth, born in Mochudi on the 23rd April 1959. As proof of my date of birth and Botswana citizenship I attach hereto marked "FAl" a copy of extract from my passport.

 

 

5.

I have not at any time changed nor do I have any intention of changing my nationality.

 

 

6.

I am an Attorney of this Honourable Court, a Conveyancer and Notary Public and at present I am a partner in the law firm DOW, LESETEDI & COMPANY.

 

 

7.

I was on the 7th day of March 1984 married to Peter Nathan Dow, a national of the United States of America and in proof of such marriage annexure "FA2" being a copy of the marriage certificate is attached hereto.

8.

There are three children of the marriage namely Cheshe Maitumelo Dow, born 29th October 1979, Tumisang Tad Dow born 26th March 1985 and Natasha Selemo Dow born 26th November 1987 and as proof of the said children date of birth annexure "FA3", "FA4" and "FA5" are attached hereto.

 

 

9.

All the three children were born at Gaborone and have always resided in Mochudi, Botswana.

 

 

10.

My family and I have established a home in Raserura Ward, Mochudi and all the children regard that place and no other, as their home.

 

 

11.

My husband, the said Peter Nathan Dow, has resided in Botswana for the past thirteen (13) years.

 

 

12

On the 4th May 1984, an Act of Parliament, being the Citizenship (Amendment) Act of 1984 came into operation with the effect that Sections 4, 5 and 13 of the Citizenship Act provide respectfully as follows:

 

 

 

4. (1) A person born in Botswana shall be a citizen of Botswana by birth and descent if, at the time of his birth:

[end of page 5]

 

 

 

a. his father was a citizen of Botswana; or

 

 

 

b. in the case of a person born out of wedlock, his mother was a citizen of Botswana.

 

 

 

4. (2) A person born before the commencement of this Act shall not be a citizen by virtue of this section unless he was a citizen at the time of such commencement.

 

 

 

5. (1) A person born outside Botswana shall be a citizen of Botswana by descent if, at the time of his birth:

 

 

 

a) his father was a citizen of Botswana;

 

 

 

b) in the case of a person born out of wedlock, his mother was a citizen of Botswana.

 

 

 

5. (2) A person born before the commencement of this Act shall not be a citizen by virtue of this section unless he was a citizen at the time of such commencement.

 

 

13

(1) The Minister may at any time grant a certificate of naturalization to a woman who is married to a citizen of Botswana and has not since remarried and who satisfied the Minister that she is otherwise qualified under subsection (2) for naturalization in terms of this section, and that woman shall, on taking the oath of allegiance, be a citizen of Botswana by naturalization from the date on which the certificate is granted.

 

 

 

(2) Subject to subsection (I), the qualification for naturalization in terms of this section for any woman shall be that:

 

 

 

a) She is resident in Botswana on the date of her application for a certificate of naturalization and has been resident in Botswana for a continuous period of or for periods amounting in the aggregate to not less than two and a half years;

 

 

 

b) She has, not later than 15 months immediately before the date of her application for a certificate of naturalization, lodged with the Minister written declaration of her intention to make such an application;

 

c) She is of good character;

 

d) She has sufficient knowledge of the Setswana language and such other language as may be prescribed; and

 

e) She intends, in the event of a certificate of naturalization being granted her, to reside in Botswana.

 

 

 

(3)Where an applicant for naturalization in terms of this section has not been resident in Botswana as required by subsection (2) (a), the Minister may, pending the fulfillment of the residence requirement, grant the applicant a certificate of temporary citizenship on such terms and conditions as may be prescribed.

 

 

 

(4)Section 12 (13) (4) and (5) shall apply, with all necessary modifications, in the case of an application for the grant of a certificate of naturalization under this section.

[end of page 6]

13.

I am precluded by the Section 4 (1) of the Citizenship Act by reason of by being female from passing citizenship to my two children Tumisang and Natasha.

 

 

14.

I am prejudiced by the discriminatory effect of the said law in that my said children are aliens in the land of mine and their birth and thus enjoy limited rights and legal protections.

 

 

15.

I verily believe that the discriminatory effect of the said Sections, (4 and 5 supra) offend against Section 3 (a) of the Constitution of the Republic of Botswana.

 

 

16.

Furthermore, Section 13 of the said Citizenship Act only makes special provision for application for naturalization by a woman married to Botswana citizen men and no such special provision exists for foreign husbands of Botswana citizen women.

 

 

17.

Being married to a national of the United States of America, I am prejudiced by the failure of the said Section 13 to afford me the protection of the law, not withstanding my sex, as provided for by Section 3 (a) of the Constitution of the Republic of Botswana.

 

 

18.

I am desirous of being afforded the same protection of law as a male Botswana citizen and in this regard 1 am desirous that my children be accorded with Botswana citizenship and that my spouse be in a position to make application for Botswana citizenship, should he so wish as provided for under Section 13 of the said Citizenship Act.

 

 

19.

As is set out above, I verily believe and state that the provisions of Section 3 of the constitution have been contravened in relation to myself.

 

 

20.

Furthermore Sections 4, 5 and 13 relegate me by reason of my being female to the status of a child or an idiot and I verily believe and state that the cited sections offend against section 7 of the Constitution of the Republic of Botswana in so far as they subject me to degrading treatment.

 

 

21.

As a citizen of the Republic of Botswana, I am guaranteed under the Constitution, immunity from expulsion from Botswana and I verily believe that such immunity is interfered with and limited by the practical implications of Sections 4, 5 and 13 of the said Citizenship Act.

 

 

22.

I verily believe that the provisions of Section 14 of the Constitution have been contravened in relation to myself.

 

WHEREFORE I humbly pray that this Honourable Court grant me the relief set out in this application.

 

Dated at Gaborone this 22nd day of June 1990.

[end of page 7]

3. Respondent's Notice of Intention to Raise Questions of Law

 

Be pleased to take notice that at the hearing of this Application the Respondent will raise the following issues of Law:

 

(a)

In limine, that the Applicant has no locus standi to bring this application in that:

 

 

 

(i) The constitutional rights alleged to be likely to be contravened are not those of the applicant

 

(ii) Applicant is neither the guardian nor the guardian Ad Litem of the minor children in respect of whose constitutional rights a threat is perceived to exist.

 

(iii)Applicant is not authorized to represent her spouse in respect of whose constitutional rights a threat is perceived to exist.

 

(b)

As to the substantive issue:

 

 

(i)That discrimination between men and women on the ground of sex is not outlawed, nor was it intended to be outlawed by the Constitution of Botswana.

 

 

 

(ii)That the treatment perceived by applicant to be visited on her by the Citizenship Act is

 

 

(a)Not visited on her at all, but upon members of her family, and

 

 

(b)Is not in any event inhuman or degrading or unconstitutional.

 

 

 

(iii) That the provisions of the Citizenship Act Cap 01:01 substantially continue by subsequent statute provisions which formerly were incorporated in the Constitution and accordingly cannot be ULTRA V1RES the Constitution.

 

 

 

(iv) That there is no legal or factual basis for suggesting that section 4 of the Constitution may be contravened in relation to Applicant.

 

DATED at Gaborone this 4th day of July, 1990.

[end of page 8]

4. Applicant's Arguments on Locus Standi

 

The applicant submits that she has the necessary locus standi to bring this application and more particularly the applicant submits as follows:

 

 

(a) she is before the court on her own behalf and not on behalf of either her children or spouse and therefore the question of her guardianship of her children or authority to represent her spouse does not arise.

 

 

 

(b) she is a person in relation to whom certain sections of the Constitution have been contravened within the meaning of Section 18 of the Constitution.

 

 

 

 

(a)

Motshegwa Busang v. The State 1982 (1) B L R 10 at 15.

 

 

 

 

(b)

Shirin Aumeruddy-Cziffra and Others v. Mauritius HRC Report p.134.

[end of page 9]

5. Applicant's Heads of Argument

 

1.

This is an application under Section 18 of the Constitution of the Republic of Botswana.

 

 

2.

It is the Applicant's case that she is denied certain fundamental rights and freedoms guaranteed her by the Constitution, these being liberty, protection of the law, immunity of expulsion from Botswana and the protection from degrading treatment.

 

 

3.

The Constitution of Botswana is supreme and every piece of legislation is subject to the scrutiny of the courts at the instance of any person living in the country who has the necessary locus.

 

 

 

 

(a)

Section 18 of the Constitution.

 

 

 

 

(b)

Section 86 of the Constitution.

 

 

 

 

(c)

Clover Petrus and another v. The State CA No 34 of 1983 at p.3.

 

 

 

4.

Section 3 of the Constitution guarantees every person in Botswana fundamental rights and freedoms without distinction as to one's race place of origin, political opinions, colour, creed or sex and the said Section 3 has independent life.

 

 

 

 

(a)

Section 3 of the Constitution

 

 

 

 

(b)

Section 18 of the Constitution.

 

 

 

 

(c)

Clover Petrus and another- supra at page 4

 

 

 

 

(d)

Societe United Docks v. Government of Mauritius (Decision 445 A and B 1981) discussed in the Comparative and International Law Journal of Southern Africa Vol XV 1982 and at page 233-233.

 

 

 

 

(e)

The Attorney General v. Moagi CA 28 of 1979 at p.5.

 

 

 

5.

Section 15 of the Constitution serves to detail circumstances under which discrimination is not outlawed by the Constitution, that is, circumstances under which discrimination is allowed. Sex is not among the categories listed in section 15 and therefore sex-based discrimination remains outlawed by section 3 of the Constitution.

 

 

 

Clover Petrus and another supra at p.7.

 

 

6.

Section 3 of the Constitution guarantees all persons in Botswana, inter alia, "liberty" and "the protection of the law".

 

 

7.

Sections 4, 5 and 13 of the Citizenship Act accord men, but deny women, the rights to marry freely and found family. Such rights are part of the "liberty right" guaranteed by the Constitution.

 

 

 

 

Constitutional Construction by Professor James Antiean (Oceana Publication, NY 1982) at pages 168-9 quoting Justice Filed.

 

 

 

 

 

Loving v. Virginia (1967) 388 US 1, 18 LED 2nd 1010 at 1018.

 

 

 

8.

Sections 4, 5 and 13 of the Citizenship Act accord men, but deny women, "the protection of the law". Equal protection of the law imports equal-

[end of page 10]

 

ity before the law and the prohibition of discrimination. The, expression can be found in Constitutions of many countries as well as in various International Instruments touching on human rights and has been considered and interpreted in various legal jurisdictions.

 

 

 

 

(a)

The Constitutions of India, Mauritius, United States of America Canada and Nigeria.

 

(b)

 

 

 

The African. Charter on Human and Peoples' Rights Article 3

 

 

 

 

(c)

The International Covenant on Civil and Political Rights. Article 26.

 

 

 

 

(d)

Sandra Lovelace v. Canada, Human Rights Committee - Selected Decisions Under The Optional Protocol page 83, Report of the Human Rights Committee No 40 (A/3G/40) p.166.

 

 

 

 

(e)

S. Aumeeruddy-Cziffra and Others v. Mauritius Human Rights Committee - Selected Cases Under the Optional Protocol p.67, Report of the Human Rights Committee No 40 (A/36/40) p. 134.

 

 

 

 

(f)

Reed v. Reed 404 US 71 (1971).

 

 

 

 

(g)

Frontiero v. Richardson 36 L Ed 2d 583 (1973).

 

 

 

 

(h)

Craig v. Boren 51 L Ed 2nd 574 (1976).

 

 

 

 

(i)

Weinberger, Secretary of Health., Education and Welfare v. Wiesenfeld 420 US 636 (1974).

 

 

 

 

(j)

State of West Bengal v. Anwar Ali AIR 1952 SC 75.

 

 

 

 

(k)

Rarn Krishna Dalmia v. Justice TendoIkar AIR 1958 SC 538.

 

 

 

9.

The bill of rights is what the people are entitled to, against every government on earth, general or particular and what no just government should refuse and the principles of equality and non-discrimination are now widely acknowledged as forming part of international customary law.

 

 

 

(a)

Clover Petrus and another supra at p.4.

 

 

 

 

(b)

Attorney General v. Moagi supra at page 5.

 

 

 

 

(c)

The International Bill of Rights edited by Locuis Henkin, Columbia University Press p.249.

 

 

 

10.

It is submitted that the protection of human rights and the prohibition of discrimination is one of the main purposes of the Constitution of Botswana.

 

 

 

Moagi v. The State supra at p.5.

 

 

11.

It is submitted further that the Botswana Constitution must be interpreted in light of Botswana's membership to the United Nations, the Organisation of African Unity and the Attorney General's chairmanship of the African Commission on Human and People's Rights.

 

 

 

(a)

Clover Petrus and another at p.6. (citing Raffia Rabin v. the State (1981) 3 NC LR 293 at 326)

[end of page 11]

 

 

 

12.

The fact that Botswana's citizenship laws were formerly incorporated in the Constitution does not give Parliament the authority to violate the provisions of the bill of rights in the same Constitution.

 

 

 

(a)

Clover Petrus .supra of p.4.

 

 

 

 

(b)

John Joseph Akar v. Attorney General of Sierra Leone, Judicial Committee of the Privy Council (Sierra Leone P.C. Appeal No 20 of 1968). (Also reported in 1968 Journal of African Law Vol 12, No I p.103).

 

 

13.

Section 7 of the Constitution prohibits the subjection of any person to, inter alia, degrading treatment and it is my submission that Sections 4, 5 and 13 subject me to such treatment.

 

 

14.

Although I am a major within the meaning of Section 49 of the Interpretation Act, the Citizenship Act treats me in the same way as the law generally treats children and insane persons. Such treatment, I submit is degrading especially in lights of the practical consequences thereof.

 

 

15.

Degrading treatment is treatment which is humiliating, demeaning or debasing.

 

 

 

(a)

Legal Thesaurus/Dictionary

 

 

 

 

(b)

Dictionary of Modern Legal Usage

 

 

 

 

(c)

The Oxford English Dictionary

 

 

 

 

(d)

Webster's Third New International Dictionary,

 

 

 

 

(e)

Denmark et al v. Greece (3321-3/67, 3344/67) Report YB 12 (EUCM)

 

 

 

 

(f)

Patel et al v. United Kingdom (EUCM).

 

 

16.

As a Citizen of Botswana, I am guaranteed, subject to certain limitations, immunity from expulsion from Botswana.

 

 

 

Section 14 of the Constitution.

 

 

17.

The practical implication of Sections 4, 5 and 13 of the Citizenship Act is to arbitrarily and without just cause curtail and interfere with my rights under section 14 of the Constitution.

 

 

18.

One of the functions inherent in the concept. of nationality is the right to settle and reside in the territory of the State of nationality or conversely, the duty of the state to grant and permit such residence to its nationals. Consequently, the Parliament has a duty not to do any thing calculated to force, urge or encourage me to leave Botswana.

 

 

 

P. Weis in Nationality arid Statelessness in International Law, Second edition, Sijhoff and Noordhoff, 1979 at p.45.

 

 

19.

Sections 4, 5 and 13 of the Citizenship Act are based on archaic and overboard generalization not tolerated under the Constitution.

 

 

 

The power of Parliament is limited to the making of laws for the peace, order and good government of Botswana and it is submitted discriminatory laws are not such laws. Section 86 of the Constitution.

[end of page 12]

Dated at Gaborone this 12th day of July 1990.

 

Private Bag 1

 

Lobatse.

[end of page 13]

6. Respondent's Heads of Argument

A. In Limine

It is submitted that applicant has no locus standi to bring this Application in that:

 

 

A1.

Locus standi under Section 18 of the Constitution of Botswana is given to any person who alleges that any of the provisions of Sections 3 to 16 inclusive of the Constitution has been, is being, or is likely to be contravened in relation to her.

 

 

A.2

It is Applicant's case that either the promulgation or the application of Sections 4, 5 and 13 of the Citizenship Act Cap 01:01 either

has resulted, or

 

 

is resulting, or

is likely to result

in the contravention of Sections 3, 7 and 14 of the Constitution in relation to her.

A.3

However Sections 4 and 5 of the Citizenship Act confer rights of Citizenship or to the acquisition of citizenship upon Children (of either sex) in given circumstances. They do not touch or threaten the citizenship rights of the parent (or applicant) in any way.

 

 

A.4

Applicant's children are minors, and if their constitutional rights are threatened they may litigate through their natural guardian (their father) or through a guardian ad litem.

Rule 2 Order 7 High Court Rules

Applicant has no locus standi to litigate on their behalf.

A.5

Similarly Section 13 confers rights of naturalization upon women married to citizens of Botswana. Applicant is herself a citizen and her rights are thus not touched or threatened by the section. If applicant's husband wishes to allege that the Constitution is being contravened in relation to him, it is for him to do so. Applicant has proffered no authority to appear for her husband nor has she locus standi to do so.

A.6

It appears that applicant's case is based upon a perceived right to "pass on her citizenship to her children regardless of the nationality of their father, or to her husband on marriage. It is submitted that such a right is not conferred by Section 3 of the Constitution nor indeed by any section of the Constitution - as such it cannot confer locus standi under Section 18 of the Constitution.

A.7

It is submitted that a bare "allegation of a contravention" of Section 3 or Section 7 or Section 14 of the Constitution, unsup-

[end of page 14]

 

ported by facts on Affidavit is insufficient to create locus standi in terms of section 18. It is clear from the affidavit that no "treatment" is alleged to have been meted out to applicant so as to bring her within Section 7, nor has her freedom of movement been threatened so as to bring her within Section 14 of the Constitution.

 

 

 

(also the arguments set out in B.13 below)

 

 

A8

The POPULARIS ACTIO of the Roman Law is not a part of the Roman-Dutch Common Law. Thus there is no general right of action in matters of public interest.

 

 

 

Dalrymple vs. Colonial Treasurer 1910 Ts 372.

 

 

A9

The principle of our law is that a private individual can only sue on his own behalf not on behalf of the public. The right he seeks to enforce must be available to him personally, or the injury for which he claims redress must be sustained or apprehended by himself.

 

 

 

Per Innes J. In Director of Education, Tvl. vs. McCagie & Others 1918 AD at 621.

 

 

 

Veriava vs. President S.A. Medical and Dental Council 1985(2) TPD at 315.

 

 

 

Cabinet of The Transitional Government of SWA vs. Eins 1988(3) SA AD at p.369.

 

 

A10

In the present case Applicant has neither suffered any injury nor does she apprehend any, arising out of the Citizenship Act. In fact she is not touched personally by the Act at all. She thus has no locus standi.

 

 

A11

It is submitted that the Court will not allow Applicant to use the obsolete popularis actin to voice her displeasure at the law relating to marital power or customary tutelage when she is herself subject to neither; having conducted a civil marriage out of community of property.

 

 

A12

The court will refuse to pronounce decisions upon constitutional questions unless it is absolutely compelled to do so in a particular case.

 

 

 

Motshegwa Busang vs. The State 1981 C. of A. p.17.

 

 

 

This is not such a case.

 

 

A13

It is thus submitted that applicant has no locus standi and the application should be dismissed.

 

 

A14.

This is the more so as the relief sought is either incompetent, or will not benefit either applicant, or her husband, or her children even if granted.

 

 

 

See: Arguments in 8.15 below.

[end of page 15]

B. As To The Merits

 

 

B.1.1

It is correct that Sections 4 and 5 of the Citizenship Act Cap. 01:01 afford different citizenship status to the children of Batswana women as opposed to the children of Batswana men. The children of Batswana men become citizens wherever they are born and regardless of the marital status of their parents. The children of Batswana women only become citizens if they are illegitimate, or if their mother is married to a citizen, but not if she is married to a non-citizen.

 

 

B.1.2

It is also correct that Section 13 of the act conveys upon a foreign woman marrying a Motswana husband the right to apply for citizenship after two and a half years residence. This right is not conferred upon a foreign man who marries a Motswana wife. He must have ten years residence.

B.1.3

Sections 6, 8, and 15 of the Act contain other provisions which address men and women differently, although these provisions are not challenged in the present proceedings.

 

 

B.1.4

Sections 4, 5, 6 and 8 of the Citizenship Act operate in favour of men.

 

Sections 13 and 15 operate in favour of women. None of them, however, diminish the status of women, or of men, as will be argued below.

 

 

B.2.1

Section 44(1) of the Interpretation Act Cap. O 1:04 provides that:

 

 

 

"Words importing the male sex include the female sex and words importing the female sex include males".

 

 

B.2.2

Section 2 of the same Act provides that:

 

 

 

 

"Each provision of this Act applies to every... enactment except in so far as the contrary intention appears".

B.2.3

Since the provisions of the Citizenship Act clearly show a contrary intention, the Interpretation Act does not assist in conferring gender neutrality.

 

 

B.3.1

It is submitted that none of the Sections of the Citizenship Act referred to are discriminatory within the definition of Discrimination contained in Section 15 of the Constitution.

 

 

B.3.2

Section 15(I) provides that

 

 

 

"...no law shall make any provision which is discriminatory either of itself or in its effect."

 

 

 

Section 15(3) defines "discriminatory" as:

 

 

 

"affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour or creed, where by persons of one such description are subjected to disabilities or

[end of page 16]

 

restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.

 

 

B.4.1

It is submitted that none of the quoted sections of the Citizenship Act derogate from any of the fundamental rights conferred by Section 3 of the Constitution or by any other Section thereof.

 

 

B.4.2

Section 3 defines the fundamental rights and freedoms protected under that section as:

 

 

 

(a) Life, liberty, security of the person and the protection of the law

 

 

 

(b) Freedom of conscience, of expression, of assembly and association; and

 

 

 

(c) Protection for the privacy of his home and other property and from deprivation of property without compensation.

 

 

B.4.3

Those rights are accorded to every person "whatever his race, place of origin, political opinions, colour, creed or sex."

 

 

B.4.4

The provisions of Chapter II "shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions."

 

 

B.4.5

The format of the principal provisions of Chapter II is that the initial subsections enshrine and exhaustively define the right to be protected and the other subsections are derogation clauses.

 

 

 

State v. Clover Petrus CA 34 of 1983 at p.12 (per Aguda J.A.).

 

 

B.5

There is no right to acquire citizenship, nor a right to pass on Citizenship, nor a right to register as a Citizen, nor a right to have one's husband registered as a citizen, enshrined either in Section 3 or elsewhere in the constitution. Accordingly, where such rights exist in law, they are not protected by Constitution.

 

 

B.6

Section 3 of the Constitution affords protection to "every l2erson in Botswana" and the words that follow, "whatever his race, place of origin, political opinions, colour, creed, or sex" merely emphasize key categories, and are neither exclusive nor exhaustive. Omitted, for example are descriptions such as "tribe", "nationality", "age" or physical disability", "caste" and "financial means." But "every person" is afforded protection of his fundamental rights and freedoms, whatever his tribe, nationality, age, physical disability, caste or financial means, as well. Thus no special significance attaches to the inclusion of the word "sex" therein, or the omission of the word "tribe". Every person is protected, whatever his description.

 

 

B.7

As in the case of the other Chapter II sections, Section 15 of the Constitution contains definitive provisions and limiting provi-

[end of page 17]

 

sions or derogation clauses, in terms of the final part of Sction 3. It affords and limits protection against discrimination to specified descriptive categories namely by

 

 

 

 

-- race

 

 

-- tribe place of origin

 

 

-- political opinions

 

 

-- colour, or

 

 

-- creed

 

 

 

B.8

It follows that subject to the fundamental rights accorded to "every person", and detailed in Section 3, laws may make provisions which are discriminatory in other respects without offending against the Constitution. Examples of such permissible categories are:

 

 

 

 

-- sex

 

 

-- education (e.g. B.D.F (Regular Force) (Cadet Officers Regulations)

 

 

-- age (i.e. Marriage Act)

 

 

-- financial means (eg. Income Tax Act)

 

 

-- nationality (Immigration Act)

 

 

 

This is not discrimination in the perjorative sense, but different treatment allowed by law for sound and practical reasons.

 

 

B.9

The competing interpretation relied upon by Applicant runs as follows:

 

 

B.9.1

The words in Section 3, namely "whatever his race, place of origin, political opinions, colour, creed or sex" outlaw discrimination based upon sex.

 

 

B.9.2

That the clauses in Chapter II fully detail (and so afford protection to) the fundamental rights set out in 3(a) (b) and (c).

B.9.3

That limitations to those rights are restricted to those listed in the Chapter.

B.9.4

So, it is argued, when the word "sex" is omitted from Section 15, then the limitations listed in 15(4) are removed in the case of sex, and gender discrimination is unlawful across the board and without restriction. e.g.

 

 

-- as regards tax

 

 

-- as regards non-citizens

 

 

-- as regards customary law, and even where "reasonably justifiable in a democratic society". Thus, for

[end of page 18]

 

 

example, the age of Consent Law should be struck down as unconstitutional.

 

 

B.10

It is submitted that the Court will first consider and decide upon the correct interpretation of Sections 3 and 15 of the Constitution. It will then test the provisions of the Citizenship Act which are perceived as objectionable against the interpretation found to be the correct one.

B.11

Constitutional Interpretation

 

B.11.1

Where there are competing constructions, the provisions of the Constitution should be construed so as to give effect to the obvious ends the Constitution was designed to serve.

 

 

 

Rafiu Rabiu vs. The State 1981 2nclr 293 quoted with approval by AGUDA J.A. in State vs. Clover Petrus And Another C.A. 34/83

 

 

 

also: ss. 26 and 27 Interpretation Act Cap 01:04.

 

 

B.11.2

The Botswana Independence Act and the Botswana Independence Order were passed together by the Government of Britain in 1966 and were published in the Gazette by Legal Notice No 83 of 1966. The Botswana Independence Order established the Constitution of Botswana.

 

 

Section 4(1) of the Botswana Independence Order saved all exsisting laws as at Independence Day.

 

 

These included:

 

 

-- The Customary Courts Act 19/61 which by 5.14 empowers the courts to administer Customary Law.

 

 

-- The General Law (Cape Statutes) Revision Law Cap 36 (1959 vols) which confirmed the Roman Dutch Law as the Common Law of Botswana

 

 

B.11.3

Thus on the day the Constitution was enacted the law of Botswana consisted of

 

 

-- Customary Law

 

 

-- Common Law

-- Statute Law all of which were saved in force by the very Order that established the Constitution.

 

 

B.11.4.1

Accordingly the clear intention of the Constitution was to save rather than to nullify the existing laws. This remains the obvious end the Constitution was designed to serve.

 

 

B.11.4.2

In statutory interpretation there is a presumption against implicit alteration of the law - "It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe

[END OF PAGE 19]

 

rights, or depart from the general system of law, without expressing its intention with irresistible clearness".

 

 

 

U.S. vs. Fisher (1805) 2 Cranch 390 quote at p.79 of Maxwell on Interpretation of Statutes (11th Ed.)

 

 

B.11.5

The interpretation sought by Applicant of Section 3 as read with Section 15 of the Constitution would outlaw gender discrimination across the board. However, the Customary Law, the Common or Roman Dutch Law, and the Statute Law are all gender discriminatory in numerous respects and huge chunks of our law would be liable to be struck down if this interpretation prevails. This could not be the intention of the Constitution.

B.11.5.1

The Customary Law

B.11.5.1.1

The whole fabric of the Customary Law in Botswana, without reference to tribe, is based upon a patrilineal society, which is gender-discriminatory in its nature.

B.11.5.1.2

Under Customary Law women are regarded as minors, subject to the guardianship of the male head of the family.

Schapera: Handbook on Tswana Law and Custom 2nd Ed. p.50

B.11.5.1.3

The Chieftainship is hereditary in the male line. IBID p.53

 

 

B.11.5.1.4

The Chief's Advisors are uncles and senior men. IBID p.75

 

 

B.11.5.1.5

Adult men participate customarily in Lekgotla (Tribal Court) with women usually only taking part if involved in a case. IBID p.86

 

 

B.11.5.1.6

The headmanship is patrilineal and passes by birthright. 1 BID p.91

 

 

B.11.5.1.7

Many other customs are gender discriminatory, such as bogadi or bride price, seantlo (a barren wife providing her husband with surrogate to bear children), polygamy, and rights of inheritance which favour the eldest son.

 

 

B.11.5.1.8

Even at family level the head of the family is a male paterfamilias.

 

 

B. 11.5.1.9

By S.5 of the Common Law and Customary Law Act Cap 16:01 the Courts are enjoined to apply Customary Law.

 

 

B.11.5.1.10

It is not unfair to say that if gender discrimination were outlawed in customary law, very little of customary law would be left at all.

 

 

 

also Restatement of African Law S. Botswana - Roberts, and S.7 of the Common Law and Customary Law Act Cap 16:01.

[END OF PAGE 20]

B.11.5.2

The Roman Dutch Common Law

 

 

B.11.5.2.1

Like the Customary Law the Roman Dutch law is based upon the paterfamilias as the head of the family.

B.11.5.2.2

A father is the natural guardian of his minor children with sole management of their property and control of their education.

Calitz v. Calitz 1939 AD 56

B.11.5.2.3

A legitimate child takes the name of its father

Wille: Principles of SA Law 7th ED p.61.

B.11.5.2.4

Women subject to the marital power may only contract with the assistance of their husbands.

Kent v. Salmon 1910 TPD 642.

B.11.5.2.5

The proprietary rights of married persons are governed by the law of the husband's domicile at the time of marriage.

Frankels Estate vs. The Master 1950(1) SA 220 AD

B.11.5.2.6

A minor acquires the domicile of his father at birth, and if the father's domicile of choice changes, so does that of the minor.

Banubhai vs. Chief Immigration Officer, 1931 NPD 264.

B.11.5.2.7

A woman subject to the marital power is a minor in the eyes of the law.

Salz v. Waiggowsky, 1919 WLD 93.

B.11.5.2.8

In consequence of marriage a husband has the duty to provide his wife with the necessaries of life, and she has the right to pledge his credit for household necessaries.

Reloomel vs. Ramsay 1920 TPD 375.

B.11.5.2.9

A wife acquires the domicile of her husband on marriage even if she has never set foot in the country of his domicile.

Jacks vs. Jacks 1903 20 SC 196

B.11.5.2.10

A mother is the natural guardian of her illegitimate child, who takes her domicile.

Dhanabakium v. Subramanian 1943 AD 166

B.11.5.2.11

An illegitimate child inherits from the mother but not the father on intestacy.

Baker's Estate vs. Baker (1908) 25 SC 243.

B.11.5.3 Statute Law

 

The following laws presently in force in Botswana contain provisions which differentiate between men and women.

 

 

CITIZENSHIP ACT

CAP. 01:01

CUSTOMARY COURTS ACT

CAP. 04:05

[END OF PAGE 21]

PENAL CODE

CAP. 08:01

CRIMINAL PROCEDURE

CAP. 08:02

AND EVIDENCE ACT

CAP. 15:02

CHANGE OF NAMES ACT

CAP 21:03

PRISONS ACT

CAP. 25:02

IMMIGRATION ACT

 

PENSIONS ACT

CAP 27:01

MILITARY PENSIONS

 

SPECIAL FUND ACT

CAP. 27:02

ADOPTION OF CHILDREN ACT

CAP 28:01

AFFILIATION ACT

CAP. 28:02

DESERTED WIVES & CHILDREN'S

 

PROTECTION ACT

CAP. 28:03

MARRIAGE ACT

CAP. 29:01

MARRIED PERSONS PROPERTY ACT

CAP. 29:03

MATRIMONIAL CAUSES ACT

CAP. 29:06

ADMINISTRATION OF ESTATES ACT

CAP. 31:01

DEEDS REGISTRY ACT

CAP. 33:02

COMPANIES ACT

CAP 42:01

MINES, QUARRIES WORKS

 

AND MACHINERY ACT

CAP. 44:02

BILLS OF EXCHANGE ACT

CAP. 46:02

EMPLOYMENT ACT

CAP 47:07

EDUCATION (CORPORAL PUNISHMENT)

 

REGS

CAP. 58:35

EDUCATION (PRIMARY SCHOOLS) REGS

CAP. 58:83

UNIFIED TEACHING SERVICE ACT

CAP. 62:01

MENTAL DISORDERS ACT

CAP. 63:02

B.11.5.4

These provisions are predominantly in favour of women, and are there for sound and practical reasons, such as protection of privacy, morality and recognition of child-bearing capacity. Thus portions of all of the above statutes, virtually the whole Customary Law, and large parts of the Common Law would fall if the Constitution requires so-called gender neutrality in all cases. This could not have been the intention of the Constitution. In addition, sections 20-26 (inclusive) and 8.30 of the Constitution itself accorded different treatment to men and women. These

[END OF PAGE 22]

 

were the Citizenship provisions which were subsequently replaced by the Citizenship Act.

 

 

 

1966 Botswana Statute Law at p.725.

 

 

 

These provisions provide basically for Citizenship to follow the male, or guardianship line in the case of infants, and for women (but not men) who marry citizens to gain entitlement to registration as citizens.

 

 

B.11.8

It is submitted that this is the clearest indication that the Constitution was not intended to outlaw all enactments that are not gender neutral.

 

 

B.11.9

It is further submitted that the word "sex" as deliberately omitted from the provisions of Section 15(3) of the Constitution with the specific intention that gender discrimination `should not (subject to Section 3) be outlawed for

 

 

 

inclusio unius exclusio alterius

 

 

 

5.33 Interpretation Act CAP 01:04

 

 

B.11.10

The Independence Constitutions of other African States with British Colonial background have virtually identical sections to our Section 15 and, for example, Ghana and Lesotho add the word "sex", The Gambia, Swaziland and Zambia omit the word "sex", and Mauritius adds the word "caste".

 

 

B.11.12

It is submitted that these words are added to extend the law against discrimination, not to diminish it. It should further be noted that most of the above constitutions contain provisions providing for citizenship by descent to follow guardianship, and for foreign women marrying citizens to be entitled to register (but not foreign men marrying citizen women).

 

 

 

Constitutions of African States (Oceana Publications N.Y)

 

 

B.11. 13

It is accordingly submitted that the Respondent's interpretation of Sections 3 and 15 is to he preferred as giving effect to the clear intention of the Constitution.

 

 

B.12 Statutory Interpretation

 

B.12.1

In interpreting the Citizenship Act Cap O l :01 the Court will seek to adopt an interpretation which gives effect to the intention of the Act.

 

 

 

State vs. Clover Petrus (Supra) at p.13

 

 

 

Interpretation Act s.28 (Supra)

 

 

B.12.2

It is the duty of the Court to maintain a Statute rather than to destroy it.

 

 

 

Ardertte Scott Thesen Ltd vs. Cape Provincial Administration 1937 AD at 452

[END OF PAGE 23]

B.12.3

It is further a well established rule of construction that an Act of the National Assembly is presumed to be ultra vires the constitution.

 

 

 

State vs. Clover Petrus (Supra) at p.13.

 

 

B.12.4

It is submitted that the intention of the legislature in drafting the portions of the Citizenship Act Cap 01:01 which Applicant is objecting to was not to disadvantage any person, but to seek to provide certainty of citizenship, by eliminating dual nationality in Botswana, while following the tradition of Citizenship legislation in Botswana and achieving the practical objectives of

 

 

B.12.4. l

(a) having infants acquire at first instance the citizenship of their guardians, whose domicile they also acquire under our law, and

 

 

B.12.4.2

(b) of giving wives the option of acquiring the citizenship of their husbands, whose domicile they acquire on marriage, and who, in certain cases, also become their guardians on marriage.

 

 

 

SS 20-30 (inclusive) (now repealed) of the Constitution (1966); Citizenship of Botswana (Supplementary Provisions) Law 39/ 66; Citizenship Act-25/82. Citizenship (Amendment) Act 17/ 84.

 

 

B.12.4.3

So, if different treatment resulted from the Citizenship (Amendment) Act, it was not attributable wholly or mainly to sex but rather to guardianship status. Certainly it was neither intended to, nor did it in fact, diminish the status of women.

 

 

 

B.13

Do The Sections In Question Offend Against The Constitution As Regards Applicant?

 

 

B.13.1

Sections 4 and 5 provide that citizenship is patrilineal in the case of children of a lawful marriage of a Motswana husband, wherever the child is born, and matrilineal in the case of illegitimate children of a Motswana mother, wherever they are born.

 

 

B.13.2

Section 13 entitles a foreign woman married to a Motswana, to apply for (but not necessarily to be granted) citizenship after a period shorter than the norm. This privilege is not accorded to a foreign man married to a Motswana wife.

 

 

B.13.3

It has already been argued that gender discrimination is not outlawed by the Constitution provided that the rights of every person under Section 3 are not infringed.

 

 

B.13.4

It is the argument of Applicant that Sections 4, 5 and 13 of the Citizenship Act deny her her right to liberty under section 3 of the Constitution, in that she is denied the right to marry freely and found family.

 

 

B.13.5

On her own affidavit Applicant has both married freely and has founded family. If anybody has been denied this right it is cer-

[end of page 24]

 

tainly not applicant and she is not entitled to the relief sought under this head. It is in any event denied that on the ordinary interpretation of the words used Sections 4, 5 or 13 of the Citizenship Act in any way restrict the choice by any person of a mate, or touch on his or her right to bear family.

 

 

B.13.6

It should be noted that Section 5 of the Citizenship Act does not apply to applicant, her husband, or to any of their children. Its inclusion by applicant is purely academic.

 

 

B. 13.7

It is applicant's case that sections 4, 5 and 13 deny her the protection of the law and thus offend against section 3 of the Constitution.

 

 

B.13.8

The whole and sole purpose of the Citizenship Act is to govern citizenship rights and to provide for the method of acquisition of and entitlement to citizenship. The "first prize", or the greatest culmination of rights under this Act is Botswana Citizenship.

 

 

B.13.9

The Applicant has Botswana Citizenship nor is this citizenship in any way threatened. Thus it can be said that the Citizenship Act has "protected" applicant to the maximum extent possible. If applicant's parents, children, husband, or other relatives feel that they have not been similarly protected it is for them (duly represented where necessary) to move the Court for relief, and not for applicant to do so.

 

 

B.13.10

It is further applicant's case that sections 4, 5 and 13 of the Citizenship Act subject her to degrading treatment, and so offend against section 7 of this Constitution.

 

 

B.13.11

To succeed on this ground Applicant must first show that the Sections subject her (and not other persons) to "treatment" and secondly that such treatment is "degrading".

 

 

B.13.11.1

" `Treatment' is a mode of dealing with or behaving towards a person or thing"

 

 

 

Concise Oxford Dictionary p.1236.

 

 

B.13.11.2

The import of Section 7 of the Constitution is that this is principally directed against punishments and forms of physical treatment. However in the interests of the broad construction of constitutional provisions it is conceded that the section outlaws all degrading treatment of a person.

 

 

 

Dlhamini v. Carter 1968(2) SA 445 RA

 

 

B.13.11.3

What is clear, however, is that the "treatment" must be of a person, or "personal".

 

 

B.13.11.4

Applicant's definition of "degrading" as "humiliating, demeaning, or debasing" is accepted.

 

 

B.13.11.5

So, to succeed, Applicant must show that she has been dealt with or behaved towards in a manner such as to humiliate de-

[END OF PAGE 25]

 

mean or debase her, in terms of sections 4, 5, or 13 of the Citizenship Act.

B.13.12

It is clear on her affidavit that applicant has not been subjected to any treatment at all, whether degrading or not, under any of the sections in question. Applicant seeks merely to debate the sections without having made any applications thereunder.

   

B.13.13

It is submitted that it is stretching construction beyond the limits of reality to import to Sections 4, 5, or 13 of the Citizenship Act treatment "like a child or an insane person". Nowhere is there any reference either actually or by implication to such treatment. It is clear that applicant seeks to air her general dissatisfaction with the Roman-Dutch Law of marital power and the customary law of wifely guardianship, but it is submitted that it is not appropriate to do so on the facts in question, particularly since the applicant herself has:

   

B.13.13.1

married out of the Customary Law and is not subject to customary guardianship.

   

B.13.13.2

married since the promulgation of the Married Persons Property Act Cap 29:03 and is thus neither married in community of property nor subject to the marital power.

   

B.13.14

Applicant argues finally that Sections 4, 5 and 13 of The Citizenship Act infringe her right to immunity from expulsion from Botswana under section 14 of the Constitution. there is no doubt that as a Citizen of Botswana applicant is immune from expulsion; nor is there any threat of expulsion shown on the papers either to Applicant, or to her husband, or to her children. Applicant is totally free to stay or go as she chooses. Her rights are intact and unthreatened.

   

B.13.15

It should be noted that there is no allegation that Applicant's husband has applied for citizenship as he is entitled to do under Section 12 of the Citizenship Act, nor does Applicant make reference to her children's rights to American citizenship by descent. There is certainly no allegation that application of the Citizenship Act may render her children stateless.

   

B.13.16

It is submitted that none of applicant's fundamental rights and freedoms have been touched or threatened by the Citizenship Act, and that the application should be dismissed.

   

B.14

The Effect of Treaties and Conventions

   
 

International Treaties such as the Charter of the United Nations and the African Charter on Human and People's Rights are part of the law only when incorporated by legislation.

   
 

Pan American World Airways Inc. vs. S.A. Fire And Accident Insurance Co. Ltd 1965 III SA 150 AD

[end of page 26]

B.14.2

At most they are an interpretative aid when the meaning of a local statute is unclear.

 

 

Binga vs. Cabinet of SWA & Others 1988 II SA 155 AD

   

B.14.3

Neither the U.N. Charter, nor the African Charter have been incorporated in Botswana by legislation.

   

B.14.4

It is submitted that in the present case the Charters are not of assistance.

   

B.14.5

For purposes of accuracy only, it should also be pointed out that the Attorney General of Botswana is not, and never has been, Chairman of the African Commission on Human and Peoples' Rights as alleged.

   

B.15

The Relief Sought

   

B.15.1

It is submitted that prayers (d) (c) (h) and (i) are incompetent and that the Court has no power to make such orders.

   

B.15.2

In terms of S. 86 of the Constitution Parliament and Parliament alone is empowered to make laws In Botswana.

   

B.15.3

The High Court is empowered to test the validity of those laws and to declare them ULTRA VIRES the Constitution where appropriate, but it is not empowered to legislate or to amend legislation in Parliament's place.

   
 

Clover Petrus vs. The State CA 34/83 Per AGUDA J.A. at p.3.

   
 

Arderne Scott Thesen Ltd vs. Cape Provincial Administration 1937 AD 429.

   

B.15.4

In the rare cases where the court will substitute words in a statute, or add words to it, it will only do so to cure a repugnancy to good taste.

   
 

Moss vs. Charnock (1802) 2 East 399

   
 

Fredericks vs. Payne (1862) H & C 584

   
 

Maxwell on Interpretation of Statutes 11th Ed. p.221-2.

   
 

In the present statute the meaning is clear and unambiguous.

   

B.15.5

To "declare a section gender neutral" which is clearly not gender neutral is to amend the law which the Court is not entitled to.

   

B.15.6

Similarly to "declare Applicant's children to be citizens" or "declare Applicant's husband to be entitled to apply for registration" is to give effect to amendments which the court is not entitled to make.

   

B.15.7

Should prayer (a) be granted, the effect will be to nullify Section 4 of the Citizenship Act. This will deprive large numbers of Botswana of their Sole Nationality without conferring any new nationality on applicant's children, who will remain American Citizens

[END OF PAGE 27]

B.15.8

Should prayer (b) be granted a similar result will ensue in respect of section 5 with no benefit to applicant.

   

B.15.9

Should prayer (c) he granted, this will nullify Section 13, depriving many persons of their rights but conferring no benefit on applicant, or on Applicant's husband, who has resided in Botswana for 13 years and requires no special concessions to enable him' to apply for Botswana citizenship.

   

B.15.9

It should be noted that none of the sections complained of is readily divisible, so as to make partial nullity an option.

   

Wherefore Respondent prays that the Application may be dismissed with costs. DATED at Gaborone this 29th day of October, 1990.

   

For Attorney General

   

Supplementary Heads

   

on the

   

LOCUS STANDI of

   

A. PETER NATHAN DOW

B. THE DOW CHILDREN, as represented by their father

   

1.

It is common cause that Peter Nathan Dow and the Dow children are citizens of the United States of America.

   

2.

Thus their "right to a nationality" to use the words of Article 15(i) of the Universal Declaration of Human Rights, is unassailed, nor is their nationality threatened.

   

3.

There is no suggestion that any of there have been discriminated against contrary to the Constitution, nor that any of there has been subjected to degrading treatment, nor that any of them has been denied the right to marry freely or found family, nor that their freedom of movement has been threatened.

4.

To achieve LOCUS STANDI under Section 18 of the Constitution each of them must show personally that one or more of the Provisions of

   

[END OF PAGE 28]

 

Sections 3 - 16 inclusive of the Constitution has been, is being, or is likely to be, contravened in relation to him or her. There is not even a bare allegation to this effect on the papers and accordingly they have no LOCUS STANDI.

   

5.

In particular, there is no allegation of any application having been made for citizenship by Peter Nathan Dow either on his own behalf or on behalf of the children notwithstanding the fact that:

   

5.1

As a Resident of 13 years standing he is entitled to make application under Section 12 of the Citizenship Act.

 

5.2

If he is successful in such application, the children qualify for registration as Citizens of Botswana under Section 8 of the Citizenship Act.

6.

In view of the submission in 4 above, it is unnecessary to advert to the exclusionary clauses of the constitution relating to laws made in respect of persons who are not citizens of Botswana.

7.

In the case of Peter Nathan Dow any possible interest he may have had in applying for early registration under Section 13 of the Citizenship Act, even assuming it was made gender neutral, must long since have faded in view of his 13 year residence. He thus has neither interest nor LOCUS STANDI.

   

8.

Section 5 does not apply at all either to Peter Nathan Dow or to any of the children. There is clearly no LOCUS STANDI conferred upon any of them in this regard either.

   

9.

In the case of Section 4, this has no application to the children due to the choice of their father not to apply for citizenship of Botswana.

   

It is submitted that neither Peter Nathan Dow nor the children have LOCUS STANDI, or will benefit in any way from the relief sought.

   

Should they he joined as co-applicants, it is thus prayed that their applications, too, be dismissed with costs.

   
 

Dated at Gaborone this 29th day of October, 1990.

   
 

Attorney General

 

Government Enclave

 

Private Bag 009

 

Gaborone

[END OF PAGE 29]

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