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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
 
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[Page 159]

 

   
 

Aguda, Judge of Appeal.

   
 

Introduction

   
 

I have had the privilege of reading in draft the Judgement of the Judge President just delivered, and I agree with the conclusions reached in that Judgement together with the reasons upon which he based the conclusions. I also agree on the Orders made. However, because of the importance to which this case is entitled, I feel constrained to add my own words to those of the Judge President not merely to lend support to his powerful words for which in my view, no further support is needed, but merely to expatiate upon certain aspects of the matter about which I feel I should express some opinion.

   
 

The Facts

   
 

All the relevant facts of this case have already been set down by the Learned Judge President, and I therefore do not feel obliged to repeat those facts, save those of them that will make this judgement intelligible and to make my views as clear as I possibly can.

   
 

The original application by the applicant at the High Court on June 22 1990, was for an order declaring certain Sections of the Citizenship Act of 1984, namely Sections 4 and 5 ultra vires the Constitution of Botswana. In support of the application the Respondent, an Advocate in practice before this Court, swore to an affidavit containing 22 paragraphs. All the facts deposed to in that affidavit stand unchallenged, and in law this Court is bound to accept them as established save those which may be obviously untrue; but I have not discovered any such.

   
 

On March 7, 1984, the Respondent was lawfully married to a United States citizen by the name of Peter Nathan Dow. As at the time of the application there were, and indeed there continue to be, three children of the marriage. The first of these was born on October 29, 1979, that is, before both parties were lawfully married, the second on March 26, 1985 and the third on November 26, 1987. As would be expected the Respondent cited the Attorney General of Botswana as the Respondent to the application. The Attorney General opposed the application, and in a considered judgement, Horwitz, A. J., on June 11, 1991, found in favour of the applicant and held that Sections 4 and 5 of the Citizenship Act (Cap. 1:01) are ultra vires the Constitution of Botswana.

   
 

The Legal Issues in Dispute between the Parties

   
 

It would appear that in her original application the applicant has sought 9 Orders namely:

   
 

1. declaring Section 4 of the Citizenship Act ultra vires Section 3 of the Constitution;

   
 

2. declaring Section 5 of the Act ultra vires Section 3 of the Constitution;

[END OF PAGE 159]

   
 

3. declaring Section 13 of the Act ultra vires Section 3 of the Constitution;

   
 

4. ordering and directing that Sections 4 and 5 of the Act he general neutral;

   
 

5. ordering and directing that Section 13 of the Act be gender neutral;

   
 

6. declaring Sections 4, and 5 and 13 of the Act ultra vires Section 7 of the Constitution;

   
 

7. declaring Sections 4, 5 and 13 of the Act ultra vires Section 14 of the Constitution;

   
 

8. declaring the two younger children Botswana citizens notwithstanding any other citizenship they may have; and

   
 

9. declaring the applicant's spouse to be entitled to make an application for naturalisation.

   
 

However, as I understand it, the suit was fought almost entirely on the allegation that Sections 4 and 5 of the Citizenship Act are ultra vires Section 3 of the Constitution and secondarily that they are also ultra vires Section 7 and 14 of the Constitution. As there are no allegations of facts in the founding affidavit which relate or can remotely be made to relate to Section 5 of the Act, I take the view that to the extent that the order made by the Court below relates to that Section, that Order cannot be allowed to remain and must therefore be set aside.

   
 

Now the relevant provision of Section 4 of the Act says:

   
 

"(a ) A person born in Botswana shall be a citizen of Botswana by birth and by descent if, at the time of his birth -

   
 

(a) his father was a citizen of Botswana; or

 

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

   
 

The case of the Respondent is that this provision is a breach of her fundamental rights as it specifically makes provision which is discriminatory in nature on the ground that whilst a male Botswana can pass his citizenship to his children born in wedlock she as a woman cannot do so. It is also her case that in these circumstances she is being subjected to degrading treatment which is prohibited by the Constitution, Section 7 and that her right to freedom of movement as enshrined under Section 14 of the Constitution is also breached.

   
 

The history of the Citizenship Act has been well set out in the judgement of the Judge President and I need not repeat it here save to say that what I would concern myself with is the Act No. 17 of 1984, now Cap. 01:01 in respect of which this action was brought. Now Section 3 of the Constitution says:

   
 

"whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race place of origin, political opinions, colour, creed or sex, but subject to the rights and freedoms of others and for the public interest to each and all of the following, namely:

   
 

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

[END OF PAGE 160]

 

(b)...

 

(c)...

   
 

the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."

   
 

The Constitution then goes on in Section 4 to 15 to make provisions as regards the protection of certain specific rights and certain derogations from each of the protected rights.

   
 

Shorn of all frills the case of the Appellant is that Section 4 of the Act is infra vires the Constitution, since the Constitution by itself in Section 15 permits the enhancement of legislation which by itself is discriminatory on grounds of sex. Appellant also argues that the Respondent has no locus standi to have brought the action. I shall defer my consideration on this point to a latter part of this judgement. For now I would like to point out that Section 15 provides (inter alia) that:

   
 

"(1) Subject to the provisions of sub-sections (4), (5) and (7) of this Section, no law shall make any provision that is discriminatory either of itself or in its effect.

   
 

(2)...

   
 

(3) In this Section, the expression "discriminatory" means 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 whereby persons of one such description are subjected to disabilities or restrictions to which persons of another description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description."

   
 

The Appellant's Argument

   
 

Mr Kirby, Deputy Attorney-General argues with all the force at his command as follows. Since the word "sex" is omitted from Section 15 of the Constitution, then it would be permissible to enact any laws which is discriminatory on the grounds of sex. After all, he argues, Parliament has the power and indeed the right under Section 86, to legislate for the country, and there is no limit to that power provided that such legislation is "for the peace, order and good government of Botswana." He argues further that Section 4 of the Act is concerned with the conferment of citizenship on children (of either sex). On any natural interpretation of the words, the section is neither intended to, nor has the effect of, subjecting women to any "disabilities or restrictions to which men are not subjected", nor, as the argument goes, does the "section confer on men privileges or advantages which are not accorded to women". Mr Kirby then points out that:

   
 

"The aim and effect of the Sections (i.e. 4 and 5) is not to disadvantage any person but rather to seek to provide certainty of citizenship, and

[END OF PAGE 161]

   
 

achieving the practical objective that a child should acquire initially the citizenship of his guardian (whatever his sex) whose domicile he also acquires.'

   
 

Finally on this point the Learned Deputy-General says that:

   
 

"Even if it be held that Sections 4 and -5 of the act discriminate against women, the law is, it is submitted, having regard to its nature... reasonably justifiable in a democratic society, so as to render it exceptionally permissible under S. 15(4) (e)."

   
 

Application of S.15(4) (e) of the Constitution.

   
 

I now find it necessary to quote sub-section (4) (e) of Section 15 of the Constitution under which the Appellant seeks succour. The relevant part of that sub-section (4) reads as follows:

   
 

"Subsection (1) of this section shall not apply to any law so far as the law makes provision:

   
 

{(a), (b), (c) and (d) are not relevant}

   
 

(e) whereby persons of any such description as is mentioned in sub-section (3) of this section may be subjected to any disability or restriction or may be accorded any privilege or advantage which having regard to its nature and to special circumstances pertaining to those persons or to persons of any such description, is reasonably justifiable in a democratic society."

   
 

The submission of Learned Deputy Attorney-General in respect of the last mentioned matter can be easily disposed of. He says that discrimination on grounds of sex does not come within the purview of sub-section (3) of Section 15, because the word "sex" is omitted from the wording of the sub-section. I find it difficult to understand how he can at the same time seek succour under sub-section (4) which is only referable to persons of the description mentioned in sub-section (3). And in any event, legislation -which in general terms and for general application prescribes discrimination on grounds of sex cannot, for reasons which will unfold later, be held to be reasonably justifiable in a democratic society in this age and time.

   
 

As stated earlier, one of the submissions of the Learned Deputy Attorney-General is that the aim and effect of Section 4 (with which I am now concerned) is not to disadvantage any person but rather to seek to provide certainty of citizenship. With great respect to the Learned Deputy Attorney-General this argument is not only untenable but rather strange. It is plain and beyond any controversy, in my view, that the effect of Section 4 of the Act is to accord an advantage or a privilege to a man which is denied to a woman. The language of the section is extremely clear and the effect is inconvertible, namely that whilst the offspring of a Botswana man acquires his citizenship if the child is born in wedlock such an offspring of a Botswana woman similarly born does not acquire such citizenship. A more discriminatory provision can hardly be imagined.

   
 

The question still remains whether the discrimination on the ground of sex can be held to be permitted by the Constitution, for, if it is, there is nothing

[END OF PAGE 162]

   
 

this Court can do about it under its adjudicatory powers. Therefore the question that must now be answered is whether the Constitution of Botswana either in terms or by intent gives general powers of sex discrimination by legislation or by executive acts. In coming to a determination of this issue, we are bound to construe Sections 3 and 15 of the Constitution.

   
 

Canons of Constitutional Construction

   
 

At the outset let me say that I have had no reasons to change my mind as regards the principles to be followed in the construction of the Constitution which I stated in Petrus & Another v. The State (1984) BLR 14, at pages 34-35. Here I wish to refer in particular to what Justice White of the Supreme Court of the United States said in South Dakota v. North Carolina (1904) 192 US 268; 48 LED 448 at p.465 thus:

   

"I take it to be an elementary rule of constitutional construction that no one provision of the Constitution is to be segregated from all others, and to be considered alone but that all the provisions bearing upon a particular subject are to be brought into view to be so interpreted as to effectuate the greater purpose of the instrument".

   
 

1 would also wish to refer once again to what Sir Udo Udoma of the Supreme Court of Nigeria said in Rafiu Rabiu v. The State (1981) 2 NCLR 293, at p.326 thus:

   
 

"I do not conceive it to be the duty of this Court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends".

   
 

And in Ifezu v. Mbadugha (1984) 1 SC NLR 427; 5 SC 79, Bello, JSC, put the matter thus:

   
 

"The fundamental principal is that such interpretation as would serve the interest of the Constitution and would best carry out its object and purpose should be preferred. To achieve this goal its relevant provisions must be read together and not disjointedly... where the provisions of the Constitution are capable of two meanings the Court must choose the meaning that would give force and effect to the Constitution and promote its purpose".

   
 

To these I would like to add the very important voice of Lord Diplock in Attorney-General of the Gambia v. Jobe (1985) LRC (Cons.) 556 PC, at p.565 thus:

   
 

"A Constitution and in particular that part of it which protects and en trenches fundamental rights and freedoms to which all persons in the State are to be entitled, is to be given a generous and purposive construction".

   
 

Generous construction means in my own understanding, that you must interpret the provisions of the Constitution in such a way as not to whittle down any of the rights and freedoms unless by very clear and unambiguous words such interpretation is compelling. The construction can only be purposive when

[END OF PAGE 163]

   
 

it reflects the deeper inspiration and aspiration of the basic concepts which the Constitution must for ever ensure, in our case the fundamental rights and freedoms entrenched in Section 3.

   
 

The Constitution is the Supreme Law of the Land and it is meant to serve not only this generation but also generations yet unborn. It cannot be allowed to be a lifeless museum piece; on the other hand the Courts must continue to breathe life into it from time to time as the occasion may arise to ensure the healthy growth and development of the State through it. In my view, the first task of a Court when called upon to construe any of the provisions of the Constitution is to have a sober and objective appraisal of the general canvass upon which the details of the Constitutional picture are painted. It will be doing violence to the Constitution to take a particular provision and interpret it one way which will destroy or mutilate the whole basis of the Constitution when by a different construction the beauty, cohesion, integrity and healthy development of the State through the Constitution will be maintained. We must not shy away from a basic fact that whilst a particular construction of a Constitutional provision may be able to meet the demands of the society of a certain age such construction may not meet those of a later age. In my view, the over-riding principle must be an adherence to the general picture presented by the Constitution into which each individual provision must fit in order to maintain in essential details, the picture of which the framers could have painted had they been faced with circumstances of today. To hold otherwise would be to stultify the living Constitution in its growth. It seems to me that a stultification of the Constitution must be prevented if this is possible, without doing extreme violence to the language of the Constitution. I conceive it that the primary duty of the Judges is to make the Constitution grow and develop in order to meet the just demands and aspirations of an ever developing society which is part of the wider and larger human society governed by some acceptable concepts of human dignity.

   
 

Status of Customary Law and the Common Law

   
 

The Learned Deputy Attorney-General did all his possible best to inform this Court of the rules of customary law and of the common law under which women are seriously discriminated against and that this provided the background which informed the enactment of the Act in 1984. This may well be so, but what we are called upon to do is to consider Section 4 of the Act in the light of the Constitution and see how that Constitution must be construed today bearing in mind the changed circumstances of our society. It is clear, of course, and I have not the slightest doubt on the issue that if any rule of customary law or of the common law is inconsistent with any of the provisions of the Constitution, but especially of the entrenched provisions, such rule of customary law or/and of the common law must be held to have been abrogated by the provisions of the Constitution to the extent of such inconsistency. Here I would, with respect, like to make reference to what Karibi-Whyte, JSC, of the Supreme Court of Nigeria said in Adediran & Another v. Interland Transport Ltd. (1991) 9 NWLR 155. In that case the defendant objected to the capacity of the plaintiff in instituting the suit. The ground of objection was that the subject matter of the suit for a redress of a public nuisance, the only person

[END OF PAGE 164]

   
 

competent to institute the action under the applicable English common law was the Attorney-General, and not the plaintiff. In dismissing this contention the Learned Justices of the Supreme court said (page 180 of the Report):

   
 

"The Constitution has vested the Courts with the powers for the determination of any question as to the civil rights and obligations between government or authority and any persons in Nigeria... Accordingly, where the determination of the civil rights and obligations of a person is in issue, any law which imposes conditions inconsistent with the free and unrestrained exercise of that right is void to the extent of such inconsistency. Thus the restriction imposed at common law on the right of action in public nuisance in inconsistent with the provisions... of the Constitution, and to that extent void".

   
 

And Kentridge J.A. made this same point in Attorney-General v. Moaqi 1982 BLR I when he said at page :

   
 

"Constitutional rights conferred without express limitation should not be cut down by reading implicit restrictions into them so as to bring them into line with the common law".

   
 

Status of Section 3 of the Constitution

   
 

There was some suggestion that Section 3 of the Constitution is a mere preamble to the other Sections which follow merely because it begins with the words "whereas". However, that that cannot be so has been exhaustively and adequately dealt with by my brother the Learned Judge President in the Judgement which he has just delivered and I do not feel that I should traverse the same route again. But I must express, as strongly as I can, that by no stretch of the imagination can such a basic over-riding provision of the Constitution be regarded as a mere Preamble and the Learned Deputy Attorney-General conceded this during argument. There can be no iota of doubt as regards the status of Section 3, namely, that it is a substantive provision of the Constitution. This conclusion is very much compelling when it is noted that the Constitution itself (Section 18) gives power to any person to institute an action in Court to test if the right entrenched in Section 3 to 16 has been, is being or is likely to be contravened in relation to him.

   

At this juncture, I would wish to point out that section 1 of the Constitution says that Botswana is a "sovereign Republic" whilst Section 2 deals with the "Public Seal". The very next Section is Section 3 which deals with "Fundamental Rights and Freedom of the Individual" which in my view suggests that it is a provision of extreme importance. 1t seems clear therefore that the construction of any Section of the Constitution must begin from the premises that "every person in Botswana is entitled to the fundamental rights and freedoms of the individual" including the right to life, to liberty, to the security of his person and to the protection of the law. In parenthesis the Learned Deputy Attorney-General agreed quite correctly in my view, that the last five words should read "the equal protection of the law". If one looks at the issue along these lines, the inevitable conclusion that the mere omission of the word "sex" from the provision of Section 15 (3) of the Constitution cannot be held to limit the fundamental rights and freedoms of the individual entrenched in Section

[END OF PAGE 165]

   
 

3, seems to me inevitable. The Learned Judge President has dealt so exhaustively with this matter in his judgement that it will be a futile exercise on my part were I to attempt to proceed at any further examination of it.

   
 

The Status of International Treaties, Agreements, Conventions, Protocols, Resolutions, etc

   
 

In considering whether this Court can interpret Section 15 of the Constitution in such a way as to authorise legislation which in its term and intent meant to discriminate on grounds of sex, in this case, the female sex, it appears to me that, now more than ever before, the whole world has realised that discrimination on grounds of sex, like that institution which was in times gone by permissible both by most religions and the conscience of men in those times, namely slavery, can no longer be permitted or even tolerated, more so by the law.

   
 

At this juncture, I wish to take judicial notice of that which is known the world over, that Botswana is one of the few countries in Africa where liberal democracy has taken root. It seems clear to me that all the three aims of the government - the Legislative, the Executive and the Judiciary - must strive to make it remain so except to any extent as may be prohibited by the Constitution in clear terms. It seems clear to me that in so striving we cannot afford to be immune from the progressive movements going on around us in other liberal and not so liberal democracies such movements manifesting themselves in international agreements, treaties, resolutions, protocols and other similar understandings as well as in the respectable and respected voices of our other learned brethren in the performance of their adjudicatory roles in our jurisdictions. Mr Browde, SC, Counsel for the Respondent referred us to the words of Earl Warren Chief Justice of the United States, when he said in Trop v. Dulles 356 US 86 that

   
 

"The provisions of the Constitution are nor time-worn adages or hollow shibboleths. They are vital, living principles that authorise and limit government powers in our nation".

   
 

Learned Counsel also pointed out what Mohamed A.J.A., of the Supreme Court of Namibia said in Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State 1991 (3) SA 76 as regards the question of corporal punishment, thus:

   
 

"What may have been accepted as a just form of punishment some decades ago, may appear to be manifestly inhuman or degrading today. Yesterday's orthodoxy might appear to be today's heresy".

   
 

Now in the Report of a Judicial Colloquium held in Bangalore, Pakistan on February 24 to 26 1988 (Developing Human Rights Jurisprudence , Commonwealth Secretariat, London September 1988), the Hon. Justice Michael Kirby, CMG, President of the Court of Appeal, Supreme Court of New South Wales, Australia, said (at p.78 of the Report):

   
 

"...in the function of Courts in giving meaning to a written Constitution to legislation on human rights expressed in general terms or even to old precedents inherited from judges of an earlier time, there is often plenty

[END OF PAGE 166]

   
 

of room for judicial choice. In that opportunity for that choice lies the scope for drawing upon each Judge's own notions of the content and requirements of human rights. In doing so the Judge should normally seek to ensure compliance by the Court with the international obligations of the jurisdiction in which he or she operates. An increasing number of Judges in all countries are therefore looking to international developments and drawing upon them in the course of developing the solutions which they offer in particular cases that come before them".

   
 

At the same Colloquium the Chief Justice of Pakistan, Muhammad Heleen C.J., voiced his own opinions thus (pages 101-103 of the Report):

   
 

"A State has an obligation to make its municipal law confirm to its undertakings under treaties to which it is a party. With regard to interpretation, however, it is a principle generally recognised in national legal systems that, in the event of doubt, the national rule is to be interpreted in accordance with the States international obligations..."

   
 

The domestic application of human rights norms is now regarded as a basis for implementing constitution values beyond the minimum requirements of the Constitution. The international human rights norms are in fact part of the constitutional expression of liberties guaranteed at the national level. The domestic courts can assume the task of expanding these liberties".

   
 

I am prepared to accept and embrace the views of these two great Judges and hold them as the light to guide my feet through the dark path to the ultimate construction of the provisions of our Constitution now in dispute.

   
 

However, whatever the views of Judges within the Commonwealth must have been in the past as regards the position of a State's international obligations and other undertakings vis-a-vis their domestic laws, many of them have since the past two decades or so begun to have a re-think. They have started to express the opinion that they have an obligation to ensure that the domestic laws of their countries conform to the international obligations of those countries. Lord Searman in Attorney-General v. British Broadcasting Corporation (1981) AC 303, at page 354, HL, said:

   
 

"Yet there is a presumption, albeit rebuttable that our municipal law will be consistent with our international obligations".

   
 

And in Schering Chemicals Ltd v. Falkman Ltd (1982), QB at 18; (1982) 2 All ER 321, CA, Lord Denning, MR, said of the Law England that:

   
 

"I take it that our law should conform so far as possible with the provisions of the European Convention on Human Rights."

   
 

England has no written Constitution and the rather cautious but clearly progressive approach of these great Judges of that country must be understood in that light. We have a written Constitution, and if there are two possible ways of interpreting that Constitution or any of the laws enacted under it, one of which obliges our country to act contrary to its international undertakings and the other obliges our country to conform with such undertaking, then the courts should give their authority to the latter.

[END OF PAGE 167]

   
 

I would wish to call attention to two documents which were placed before us. The first is the Convention on the Elimination of All Forms of Discrimination Against Women which was adopted by the General Assembly of the United Nations GA Res. 34/180 on December 18, 1979 by a vote 130-0, and which came into effect on December 3, 198 1. Article 2 of the Convention says that States Parties to it "condemn discrimination against women in all its form", and that they would take all appropriate measures, including legislation for "the purpose of .guaranteeing women the exercise and enjoyment of human right and fundamental freedom on a basis of equality with men" (Article 3). Article 9 (1) says that "States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife "whilst Article 9 (2) says that "States Parties shall grant women equal rights with men with respect to the nationality of their children".

   
 

By the end of February 1990, 100 States had ratified or acceded to this Convention. There is no evidence that Botswana is one of the 100 States that have ratified or acceded to the Convention but I take it that a Court in this country is obliged to look at the Convention of this nature which has created an international regime when called upon to interpret a provision of the Constitution which is so much in doubt to see whether that Constitution permits discrimination against women as has been canvassed in this case.

   
 

I take judicial notice that Botswana is an important member of the Organisation of African Unity (the OAU). We were informed by the Deputy Attorney General that she has ratified the African Charter on Human and People's Rights which were adopted on June 27, 1981 by members of the OAU. Indeed the published document itself shows that Botswana was among the 35 States that had ratified it by January 1, 1988. I need quote only two of its 68 Articles. Article 2 says that:

   
 

"Every individual shall be entitled to the enjoyment of the right and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political opinion".

   
 

And Article 3 says:

   
 

"1. Every individual shall be equal before the law.

   
 

2. Every individual shall be entitled to equal protection of the law".

   
 

I take the view that in all these circumstances a court in this country, faced with the difficulty of interpretation as to whether or not some legislation breached any of the provisions entrenched in Chapter II of our Constitution which deal with Fundamental Rights and Freedoms of individual, is entitled to look at the international agreements, treaties and obligations entered into before or after the legislation was enacted to ensure that such domestic legislation does not breach any of the international conventions, agreements, treaties and obligations binding upon this country save upon clear and unambiguous language.

[END OF PAGE 168]

   
 

In my view, this must be so whether or not such international conventions, agreements, treaties, protocols or obligations have been specifically incorporated into our domestic law. In this respect I wish to make reference to what Barker, J., said in Bird's Galore Ltd v. Attorney-General & Another- (1989) LRC (Const.) 928 at page 939 thus:

   
 

"An international treaty, even one not acceded to by New Zealand, can be looked at by the Court on the basis that in the absence of express words Parliament would not have wanted a decision maker to act contrary to such a treaty for example Van Gorkorn v. Attorney-General (1977) 1 NZLR 535 where the treaty had not been acceded to by New Zealand".

   
 

If an international convention, agreement, treaty, protocol, or obligation has been incorporated into domestic law, there seems to me to be no problem since such convention, agreement and so on will be treated as part of the domestic law for purposes of adjudication in a domestic court. If it has merely been signed but not incorporated into domestic law, a domestic court must accept the position that the Legislature or the Executive will not act contrary to the undertaken given on behalf of the country by the Executive in the convention, agreement, treaty, protocol or other obligation. However, where the country has not in terms become a party to an international convention, agreement, treaty, protocol or obligation, it may only serve as an aid to the interpretation of a domestic law, or the construction of the Constitution if such international convention agreement, treaty, protocol etc. purports to or by necessary implication, creates an international regime within international law recognised by the vast majority of States. One can cite some of such conventions, agreements, treaties, protocols which have created regimes which no member of the community of nations can or should neglect with impunity. Take for example the United Nations Declaration of the Rights of the Child adopted by Resolution 1286 on November 29, 1959 which says that the child shall,

   
 

"Wherever possible grow in the care and under the responsibility of his parents..."

   
 

and that -

   
 

"a child of tender years shall not, save in exceptional circumstances, be separated from the mother".

   
 

Another example is United Nations General Assembly Declaration on the Elimination of Discrimination against Women passed on September 7, 1967 to the effect that-

   
 

"Discrimination against women, denying or limiting as it does their equality of rights with men is fundamentally unjust and constitutes an offence against human dignity".

   
 

One may also be permitted once more to note the African Charter on Human Rights and Peoples' Rights Article 18 (3). It says emphatically that

   
 

"The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the women and the child as stipulated in international declarations and convention".

[END OF PAGE 169]

   
 

In my view, there is clear obligation on this country like on all other African States signatories to the Charter to ensure the elimination (of) every discrimination against their women folk. In my view, it is the clear duty of this court when faced with the difficult task of the construction of provisions of the Constitution to keep in mind the international obligation. If the Constitutional provisions are such as can be construed to ensure the compliance of the State with its international obligations then they must be so construed. It may be otherwise, if fully aware of its international obligations under a regime creating treaty, convention, agreement or protocol, a State deliberately and in clear language enacts a law in contravention of such treaty, convention, agreement, or protocol. However, in this case before this court the clear provisions of Section 3 of the Constitution accords with the international obligations of the State whilst construing Section 15 in the manner canvassed by the Appellant will lead to the inevitable failure of the State to conform with its international obligation under international regimes created by the UN and the OAU. In this regard I am bound to accept the position that this country will not deliberately enact taws in contravention of its international undertakings and obligations under those regimes. Therefore the Courts must interpret domestic statutory laws in a way as is comparable with the State's responsibility not to be in breach of international law as laid down by law creating treaties, conventions, agreements and protocols within the United Nations Organisation and the Organisation of African Unity

   
 

In the light of all the foregoing, therefore, the Constitution must be held not to permit discrimination on grounds of sex which will be a breach of international law. Therefore Section 4 of the Citizenship Act must be held to be ultra vires the Constitution and must therefore be and is hereby declared null and void.

   
 

Relevance of Other Sex-discriminatory Statutes

   
 

Before I am completely done with this aspect of this appeal, I must take note that the Learned Deputy Attorney-General has called our attention to and listed as an Appendix to his Heads of Argument, certain Statutes which in his submission are not gender neutral. This he said in order to convince us that there can be nothing wrong with the Citizenship Act, Section 4, in that there are other provisions on our Statute books which are similarly sex discriminatory. With due respect to Learned Counsel all the arguments founded on this are not only irrelevant, but they probably call for further scrutiny by the Legislature. This Court is not, however, in these proceedings, concerned with whether or not any provisions of the 26 Statutes listed by the Learned Counsel are ultra vires the Constitution or not.

   
 

If all our Statutes contain provisions which are ultra vires one provision of the Constitution or the other, this Court should not be deterred by that fact from pronouncing on the one provision which has been challenged.

   
 

What we have been called upon to decide in these proceedings is whether a single provision is ultra vires Section 3 and some other Sections of the Constitution. Learned Counsel tells us that for example under the Administration of Estate Act, Cap. 31:01, Section 28 (5) the administration can be granted to a

[END OF PAGE 170]

   
 

woman only with the husband's consent; that under the Deeds Registry Act, Cap 33:02, Section 18 (4), immoveable property cannot be registered in the name of a woman married in community of property; and that under the Companies Act Cap. 42:01 such a woman can be Director of a Company only if her husband gives his consent. As I have said, this Court has not been called upon to make any pronouncement as to the validity of any or all of these provisions, and I therefore refrain from making any pronouncement on them. However, the Learned Deputy Attorney-General is quite right in pointing out that there are some other areas of human existence that persons of both sexes cannot for obvious reasons be expected to have equal treatment. As an example of course, is that a pregnant woman may not be sentenced to death (under the Penal Code): and that a pregnant woman who is in employment will be entitled to a maternity leave (under the Employment Act), and so on. But the matter before this Court in this appeal is not of that nature. What has been canvassed before us in this appeal is the construction of a certain provision of the Citizenship Act. Had we accepted the views canvassed by the Appellant this Court would then have given the State - the Legislature, the Executive, and the Judiciary the power to take actions within their own spheres of government, which without limit, could be discriminatory against the women folk. In my view, that cannot be correct, and for this reason and for the other very cogent and compelling reasons so clearly and ably advanced by the Learned Judge President in his judgement, I do hold that the learned trial Judge was right in holding that Section 4 of the Citizenship Act is ultra vires the Constitution.

   
 

Locus Standi

   
 

The Appellant has submitted that the present Respondent had no locus standi to have brought the original application in the Court below. If any person had such a locus standi it was either the Respondent's husband or her children. The argument of the Learned Deputy Attorney-General in this regard are not only attractive, but superficially plausible. Again my Learned Brother the Judge President had dealt with this matter, and I fully and respectfully accept and embrace his views and the conclusions reached by him.

   
 

According to the Learned Deputy Attorney-General, the Respondent had no locus to have brought this suit before the High Court because the Constitution by itself, Section 18 (1) provides that

   
 

"If any person alleges that any of the provisions of Sections 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, then... that person may apply to the High Court for redress".

   
 

The Learned Attorney-General emphasises that the alleged contravention of any of the Constitutional provisions must be in relation to the person who has instituted the proceedings. In this case the alleged contravention of the Constitution was only in relation to two of the children of the Respondent to whom she could not pass her own citizenship by virtue of the Citizenship Act, Section 4. The Respondent has neither personally suffered any injury nor does she apprehend any arising out of the Citizenship Act, argued Counsel for the Appellant. After all the popularis actio of the Roman Law have never been

[END OF PAGE 171]

   
 

part of Botswana Common Law. Placing reliance on some decisions of the Courts of the Republic of South Africa and on some dicta of some of our brothers on the Benches of that country, the Learned Deputy Attorney-General goes further to summit that "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 him".

   
 

Learned Counsel for the Respondent, Mr Browde, SC, provides an answer to these two submissions when he says that the South African cases relied upon by the appellant are both mis-applied and, in any event, inappropriate for a determination of the present issue. "They arc inappropriate since they even concern common law rules of standing while the present case requires an interpretation of a constitutional instrument which specifically confers standing in broad terms". But then the Learned Deputy Attorney-General goes on to submit further that "political adverse consequences which are speculative in nature rather than imminent and threatened, will not be sufficient to confer locus standi under Section 18 of the Constitution". In support of this submission the appellant cites a number of decisions of the Courts of the Republic of South Africa, for example Dalrymple Colonial Treasurer 1910 TS 372: Director of Education, Transvaal v. McCagie and Ors 1918 AD 621: Uerivava v. President of the South African Medical and Dental Council 1958 (2) TPD 315: and Cabinet of the Transitional Government of South West Africa v. Eros 1988 (3) SA 369 AD.

   
 

In my view, the only question to be answered is whether, on all the facts and circumstances of his case, the Respondent had the locus to have instituted this action under Section 18 of the Constitution. Whatever the common law says on the issue of locus standi becomes of little or no importance. There are two legs to the case made by the Respondent. As I understand it, it is her case that Section 4 of the Citizenship Act has breached her right entrenched under Section 3 of the Constitution, that is, the right to equal protection of the laws under paragraph (a) of the Section. Because she is a woman, she is denied the equal protection of the law when compared with her male counterpart. The Respondent also based her case on the allegation that Section 4 of the Act also breached her right to liberty under Section 5 of the Constitution in that her children, 5 and 3 years old, born in lawful wedlock, are liable to be expelled from Botswana and because of her peculiar relation to these children, her personal right to freedom of movement is impaired. It is also her case, if I understand it correctly, that the provision breached her right not to be subjected to degrading treatment under Section 7, by reason of the same facts. The motherhood bond between her and the minor children, 5 and 3 years of age, is under perpetual threat of disintegration in Botswana, where they have made their home. This breaches her right not to be subjected to inhuman or degrading treatment.

   
 

The Constitution of Botswana, like many other constitutions of the Commonwealth framed in the past 30 years or so, have clearly shut the door of the Courts of those countries against "a mere busy-body who is interfering in

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things which do not concern him" (in the words of Lord Denning in Iz v. Greater London Council, ex parte Blackburn (1976) 1 WLR 550, at page 559); and those Courts "are not places for those who wish to meddle in things which are no concern of theirs" as was proclaimed by Megarry J., in Re Argentum Reductions (U.K.) Limited (1975) 1 WLR 186 at page 190, "just for the pleasure of interfering, or proclaiming abroad some favourable doctrine of theirs of indulging a taste for forensic display". Under our Constitution as well as under the Constitutions of other countries with similar provisions - see Section 42, and Section 44 of the Constitution of the Federal Republic of Nigeria, 1979 and 1989 respectively - for a person to have the locus he must "allege" that any of the entrenched fundamental rights provisions "has been, is being or likely to be contravened" "in relation to him".

   
 

It is perhaps essential at this stage to say that in Great Britain, where there is no written Constitution, there has not bee a Statute directly giving power to the Judiciary to review any act of the Legislature i.e. of the Queen in Parliament. It seems clear therefore, that very little inspiration can be drawn from the pronouncements of the Judges of that country save those who take appeals from the Commonwealth countries. Also neither the Constitution of the United States of America nor that of Australia contains any provision similar to that of Section 18 of the Constitution of Botswana. It is perhaps needless to say that no such provision exists in the law of the Republic of South Africa.

   
 

In her classical book entitled Locus Standi and Judicial Review, Dr Thio observed that:

   
 

"The problem of locus standi in public law is very much intertwined with the concept of the role of the judiciary in the process of government. Is the judiciary function primarily aimed at preserving legal order by confirming the legislature and executive organs of government within their powers in the interest of the public, jurisdiction de droit objectif, or is it mainly directed towards the protection of private individuals by preventing illegal encroachments of their individual rights, jurisdiction de droit subjectif?"

   
 

I would say that in the case of Botswana this distinction is obviously uncalled for. The judiciary is charged with both functions as its primary role, one being correlative to the other. The judiciary in this country has as one of its primary functions, of responsibility of confirming both the Legislature and the Executive within the powers allotted to them under the Constitution. However, it has another primary function, perhaps not less important for the maintenance of peace, order and good government namely, the protection of private individuals from illegal encroachments of their individual rights by either the Legislature or the Executive.

   
 

In order to give the Judiciary the power to exercise the latter primary function, the Constitution itself has made provision in its Section 18. In my view, the language of that Section is very clear and totally devoid of any ambiguity. Therefore, founded upon the first leg upon which the claim is based, there can be no dispute as to the locus of the Respondent in these proceedings.

[END OF PAGE 173]

   
 

When we come to the second leg upon which the Respondent's claim is based, namely, the prevention of her two young children from acquisition of her citizenship by descent, the matter is far more complicated and therefore requires further consideration. However, here again 1 agree entirely with the observations and conclusions of my Learned Brother, the Judge President, on this aspect of the matter. In her affidavit sworn on February 9, 1992, admitted by consent in these proceedings, the Respondent alleges that her husband and her two young children were, on January 8, 1992, granted a residence permit to reside in Botswana till June 30, 1992. It is clear from this that the Respondent's two young children will thereafter be subject to expulsion from Botswana, away from their mother and away from the only place they have regarded as their home. Short of expressly saying the obvious, in his reply affidavit sworn on February 13, 1992, the Chief Immigration Officer admitted that "a replacement permit was issued to Mr Dow, including the two children and valid from 17th April 1991 to 30th June 1992, when his course (of study in the University of Botswana) was to expire." In my view, it is too artificial and unnatural to hold that in these circumstances the Respondent's rights not be subject to inhuman and degrading treatment, and her right to free movement within and into and out of Botswana have not been breached. If she travels out of the country with her husband and the children, the two children concerned, 5 and 3 years old, and her husband may be refused admission. In that circumstance she must feel, rightly, that she has been subjected to both inhuman and degrading treatment. In my view, she need not suffer this sort of treatment before she can approach the Court under Section 18 of the Constitution, She is entitled to come to Court once it is possible for her to allege upon sufficient grounds - as the founding affidavit has shown - that she was likely to be subjected to such a treatment.

   
 

In all these circumstances, there can be no doubt the Respondent has the locus standi to bring this action.

   
 

I would therefore, for the reasons so ably articulated by my Learned Brother, the Judge President, and by the additional and supporting reasons which I have herein given, dismiss the appeal with costs as ordered by the Judge President.

   
 

Bizos, Judge of Appeal

   
 

I concur in the judgement of the Judge President and the proposed orders to be made dismissing the appeal from the judgement of Horwitz A.J. I agree with the reasons advanced by the Judge President.

   
 

In view of the importance of the matter and the arguments advanced I consider it necessary to deal with some of them. I will not set out the provisions of the Constitution nor the authorities quoted by the Judge President unless it is necessary for the purpose of understanding the views expressed by me.

   
 

I accept what could not be seriously disputed by the Appellant, that the Citizenship Act 1984 is discriminatory. Section 4 deprives her two minor children

[END OF PAGE 174]

   
 

of automatic citizenship of Botswana despite the fact that they were born in Botswana to her, a Motswana citizen by birth and her husband a citizen of the United States of America. The children would have been Botswana citizens if their father was a Motswana irrespective of the citizenship of their mother.

   
 

The main question to be answered is whether the Constitution allows the Legislature to discriminate on the grounds of sex. The appellant contends that it does. He argues that because the word sex is left out of the definition in "discriminatory treatment" in Section IS (3) of the Constitution, gender discriminatory legislation against women is permitted in Botswana because it is a patrilineal and male orientated society.

   
 

The Appellant's submission ignores the clear and unambiguous words in Section 3 of the Constitution

   
 

"Whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex..."

   
 

and which thereafter, subject to certain limitations, sets out the rights referred to above. I disagree that the use of the word "whereas" in the context that it is used was not intended to confer the fundamental rights set out in Section 3 but merely sets out a preamble or a statement of fact.

   
 

Section 18 of the Constitution provides

   
 

"...if any person alleges that any of the provisions of Section 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, then..."

   
 

A remedy is then provided. I know of no way in which the provisions of a preamble or a statement of fact may be contravened.

   
 

The Appellant's argument that Section 3 merely recorded a fact is inconsistent with his submission that Botswana was a patrilineal and male orientated society. It would mean that an unwarranted statement of fact was enshrined in the opening words of Botswana's Constitution at the time of the country's birth. I cannot credit the makers of the Constitution with such an intent.

   
 

I respectfully agree with the dicta of Maisels J.P., Aguda J.A., and Kentridge J.A. in Attorney General v. Moagi 1981 B.X.L.I., and Petrus v. The State 1984 B.K.R. 14 that as far as its language permits, the Constitution should be given a broad construction. Their views and those of many other eminent Judges in various countries have been set out in the judgements of the Judge President and Aguda J.A. in this case. I find it unnecessary to repeat them. The full bench judgement of Berker C.J., Mohan, ed A.J.A. and Dambutsana A.J.A. in Minister of Defence Namibia v. Mwandinghi 1992 (2) SA 355 (Nh SC) and the cases therein cited provide further support for the approach to be adopted.

   
 

I am of the view that even if the matter before us is approached on the basis of what has been called "the austerity of tabulated legalism", the result would be the same. I intend examining the issue in accordance with some of the main rules of statutory interpretation as enunciated in the English and South African Courts in whose judgements this court has sought guidance in the past.

[END OF PAGE 175]

   
 

What has become known as Lord Wensleydale's "Golden Rule" was enunciated in Grey v. Pearson 6 HLC 106:

   
 

"We are to take the whole statute together and construe it altogether, giving the words their ordinary signification, unless when so applied they produce an inconsistency... so as to justify the Court in placing on them some other signification, which, though less proper, is one which the Court thinks the words will bear."

   
 

Solomon J.A. in Dadoo Ltd & Others v. Krugersdorp Municipal Council 1920 at 554 said:

   
 

"Prima facie, the intention of the Legislature is to be deduced from the words which it has used. It is admissible for a Court in construing a statute to have regard not only for the language of the legislature but also to its object and policy as gathered from a comparison of its several harts, as well as from the history of the law and from the circumstances applicable to its subject matter. If on considerations of this nature, a Court is satisfied that to accept the literal sense of the words would obviously defeat the intentions of the legislature it would be justified in not strictly adhering to that sense but in putting upon the words such other signification as they are capable of bearing" (my emphasis).

   
 

In Attorney-General Tvl v. Additional Magistrate for Johannesburg 1924 AD, 421 at 436 Kotze J.A. relying on English law said:

   
 

" "A statute" says Cockburn C.J., `should be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant. The Queen v Bishop of Oxford (4 QBD at 261). To hold certain words occurring in a section of an Act of Parliament as insensible, and as having been inserted through inadvertence or error, is only permissible as at long resort. It is, in the language of Erle C.J. `The ultima ratio, when an absurdity would follow from giving effect to the words as they stand"'.

   
 

In Ditcher v. Denison II Moore PC. 325 at p.357 it is said:

   
 

the Privy Council advised

   
 

"It is a good general rule in jurisprudence that one reads a legal document whether public or private, should not be prompt to ascribe - should not, without necessity or some sound reason, impute - to its language tautology or superfluity, and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use".

   
 

In Wellworths Bazaars Ltd v. Chandlers Ltd and Another 1947 (2) SA 37 (A) Davisaja J.A. at p.43 said:

   
 

"...a Court should be slow to come to the conclusion that the words tautologous or superfluous"

   
 

If Appellant's argument that gender discrimination is authorised by the Constitution is to be upheld, the Court would either have to ignore the inclusion of the word "sex" in Section 3, or say that it was included for some mere cosmetic purpose. The main reason advanced by the Appellant for his contention is that the word "sex" does not appear in Section 15 (3) wherein affording

[END OF PAGE 176]

   
 

different treatment to different persons on the grounds of race, tribe, place or origin, political opinions, colour or creed, is deemed to he discriminatory.

   
 

I cannot ignore that the word "sex" appears in Section 3. I can find no necessity nor any sound reason for doing so.

   
 

As Solomon J.A. said in Dadoo's case (supra) we must also have regard to the object, political history and circumstances applicable to the subject matter of the statute we have to interpret.

   
 

The Constitution of Botswana was enacted on 30 September 1966, in substantially similar circumstances as those mentioned by Lord Wilberforce in The Minister of Home Affairs (Bermuda) and Another v. Fisher & Another 1980 AC 319 at 328/329 where he says that the United Nations Universal Declaration of Human Rights of 1948 and the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1953 had some influence. Both documents were no doubt inspired by the Atlantic Charter of 1941 which was intended to give hope for a better future for mankind after World War II. This was to be achieved by recognising the right of all people to self b determination and self government.

   
 

The African Human and People's Charter and other continental and regional charters and declarations followed.

   
 

By the middle of the 20th century the terms "Man" as used in "The Rights of Man" and "People" as used in "We the People" did not men "men only" nor men and women of a certain colour. Women over 30 in the United Kingdom got the vote in 1918. Most democratic countries followed. The view of Aristotle and Jean-Jacques Rousseau that women were not fit to make decisions that affect the common good beyond the family was no longer considered good dogma. The claimed right of men that expected women to nurture their male children to virtuous citizenship, that they themselves and their daughters were never to enter, was challenged. Amongst the world's nations (except a small number of notable exceptions that refused to subscribe to the Universal Declaration), discrimination on the grounds of race and sex became equally heretical.

   
 

An analysis of the history, language, object and policy of the several parts of the Constitution of Botswana leads to an inevitable conclusion that gender discrimination was not permitted in legislation enacted after the adoption of the Constitution.

   
 

The adoption of the Constitution of sovereign Botswana emerging from colonial rule was obviously done with the lofty principles enshrined in the Charters and Declarations. The Constitution unequivocally declares in Section 3 that the fundamental rights and freedoms of the individual whatever his or her race or sex, shall be enjoyed subject only to certain stated limitations designed not to prejudice the enjoyment of those rights by others.

   
 

I am not unmindful that I have introduced the word "or her" in my paraphrasing Section 3 of the Constitution. It speaks of "every person". By the time the Botswana Constitution was enacted no one seriously contended that the word "person" and "people" did not mean both men and women.

[END OF PAGE 177]

   
 

The rights referred to in Section 3 and under what circumstances exceptions to their exercise are set out in greater detail in Section 4 to 14. Sections I S and 18 have been set out, discussed and interpreted by the Judge President. Section 16 and 18 deal with what is to happen when Botswana is at war or when the President has declared a state of emergency in terms of Section 17. Section 19 is a definition section in relation to the matters contained in chapter 2 of the Constitution which is headed "Protection of Fundamental Rights and Freedoms of the Individual".

   
 

In terms of Section 89 (3) parts of the Constitution may not be altered unless a special procedure is adopted and the Bill is passed by two thirds majority. All the sections in Chapter II are so entrenched together with other sections set out in section 89 (3) dealing with the office of the President, of Ministers and Assistant Ministers in Chapter IV. The qualifications for the election of a person as President are set out in Section 33. Being a woman is not a disqualification. A woman may become Vice-President in terms of Section 39 and a member of the Cabinet as Minister or assistant Minister in terms of Section 42. Sections 61 and 62 set out the qualifications and disqualifications for persons to become members of the National Assembly. More than 10 issues are addressed in the provisions of these sections. Being a woman is not a disqualification.

   
 

If the makers of the Constitution of Botswana intended it to discriminate against women because it is a patrilineal and male orientated society, they could not have missed the opportunity of expressly debarring them from holding officer as President, Minister, Deputy Minister or Member of Parliament. Persons entitled to the franchise are set out in Section 67, also entrenched in terms of Section 89 (3) (b). Women are not excluded from the right to vote.

   
 

Mr Kirby, in an able and well researched argument submitted that one of the reasons why the Constitution should he interpreted as allowing gender discrimination against women to quote his words, "the whole fabric of the customary law in Botswana, is based upon patrilineal society, which is gender discriminatory in its nature". He also drew our attention that only adult men participate in the proceedings of the Lekgotla, an assembly presided over by the Chief in which the affairs of the community are discussed and decided upon and which at times act as a Court. We were told that women do not participate in these proceedings unless they are personally involved when the Assembly sits as a Court. Mr Kirby quoted numerous other examples in customary law, the Roman Dutch Common Law and the Statute Law of Botswana in which gender discrimination is to be found.

   
 

The argument taken to its logical conclusion would mean that although the makers of the Constitution provided that a woman hold the highest offices in the land and have the right to vote for persons seeking high office, discriminatory legislation could be passed vitally affecting her, because among other reasons, she was not entitled in customary law, to attend the Lekgotla. In order to achieve this purpose, so the argument would have to proceed, the makers of the Constitution, deliberately left out the word "sex" from Section IS (3) of the Constitution despite what was declared in Section 3.

[END OF PAGE 178]

   
 

The makers of the Constitution were well aware that provision would have to he made for the law of the country and expressly provided in Section IS (3) that:

   
 

"Nothing contained in or done under the authority of any law shall be held to be inconsistent with the provisions of this section

   
 

(a) if that law was enforced immediately before the coming into operation of this constitution and has continued in force at all times since the coming into operation of this constitution; or

   
 

(b) to the extent that the law repeals and re-enacts any provisions which has been contained in any written law at all times since immediately before the coming into operation of Constitution".

   
 

The meaning is clear. The. laws of the past could not be declared unconstitutional in terms of Section 18 but no new laws discriminating against any of the grounds set our in Sections 3 to 14 after the adoption of the Constitution. The exceptions are clearly set out in Sections 4 to 14. The further exceptions set our in sub-sections (4), (5), (6), (7) and (8) of Section 15 and Sections 16 and 17 deal with a state of emergency.

   
 

Having gone to so much trouble to provide so many exceptions for the protection of fundamental rights, why would the makers of the Constitution not expressly state that women could be discriminated against in Botswana in order to preserve the patrilineal and male orientated society? Having gone to so much trouble to expressly enumerate so many exceptions, they would hardly have been content to express their intention in so elusive a manner by omitting the word "sex" from section IS (3) and hope that their intention would be discovered by the application of the rule of construction expressio unius exclusio alterius.

   
 

In my view, the overall intention of the makers of the Constitution is so clear that even if the matter is to be approached by very strict adherence to "the austerity of tabulated legalism", the maxim in Latin has no application. The intention of the makers of the Constitution that there would be no gender discrimination in any law passed after the adoption of the Constitution is clearly expressed. To hold the contrary would have the effect of allowing a rule of interpretation to contradict the express words of the Constitution.

   
 

Mr Kirby in reply to Mr Browde's able argument relying on judgements of American, Australian, Canadian, Tanzanian and other Courts, to the effect that the Constitution such as that of Botswana should be given a broad construction rather that a restrictive interpretation, Mr Kirby urged us to have regard to Botswana's peculiarities and idiosyncrasies. During his peroration he appealed to us not to listen to what the world has to say, but to the heartbeat of Botswana. What he no doubt meant was that we should have regard to the traditional culture of Botswana which he says is a patrilineal and male orientated society. Botswana was not alone in this male orientated tradition. For no other reason than being a woman, a Viscountess was precluded from taking her position in the House of Lords. The Claim of Viscountess Rhondda (1922) 2 AC 339. Some fifty years later Lady Thatcher could not only take her place in the House of Lords, but has been thrice elected as Prime Minister of Brit-

[END OF PAGE 178]

   
 

ain. Although the customs, traditions and culture of a society have to be borne in mind and afforded due respect they cannot prevail over the express provisions of the Constitution.

   
 

In relation to the protection of personal and political rights the primary instrument to determine the heartbeat of Botswana is its Constitution. In my judgement, the passing of any law which clearly makes provision that is discriminatory either of itself or in its effect, cannot stand. The effect of Section 4 of the Citizenship Act is to discriminate against the Respondent whose children are deprived of Botswana citizenship even though they were born in Botswana. This could not be done by the legislature in view of the provisions of Section 3, 14 and IS of the Constitution.

   
 

In my view, there is no substance in the submission that the applicant does not have locus standi in relation to her children.

   
 

The Judge President has referred to the cases dealing with locus standi in Roman Dutch Law and more particularly, Wood & Others v. Odangwa Tribal Authority & Another 1975 (2) SA 294 (AD). I agree with this conclusion. The matter was considered further in Jacobs en `n Andere v. Waks en Andere 1992 (I) SA 521 (AD) in circumstances fairly close to the matter before us. It was argued on appeal on behalf of the Mayor of the Town Council of Carltonville that had resolved to reserve entry into a park to whites only that the applicants did not have locus standi to apply to Court to set aside the decision. The first and third applicants were found to have locus standi because they were a director and a manager respectively of businesses within the town. Because the African population living in a segregated township adjoining the town had mounted a successful boycott of all the businesses as a protest against the town racist decision, they contended that the decision of the Town Council should be set aside so that the boycott may come to an end. The second applicant, an African, who lived and had a business in the segregated township of Khutsong, but did his shopping in Carltonville and was closely involved with its community, contended that the decision of the Town Council extremely upset him and that he and many other black people felt insulted and aggrieved. The Provincial Division to which the application was brought held that the second applicant did not have locus standi, Waks en Andere v. Jacobs `n Ander 1090 (1) SA 913 at 918F-I. However, Botha J.A. with whom Chief Justice Corbett and Smallberger, Milne and Nienaber J.J.A. concurring, held in the Court of Appeal that he did have locus standi because his dignity had been effected by the decision of the Council. The Learned Judge of Appeal says that dignitas is a deep rooted notion in Roman Dutch Law which the Court will protect.

   
 

The strength of the bond between a mother and her children does not require discussion. Whatever may aggrieve the children directly affects her. To say that she has no locus standi to protect her children's right to citizenship of the country of their birth because their father is an alien, finds no support in the law of Botswana.

[END OF PAGE 180]

   
 

Schreiner, Judge of Appeal.

   
 

I do not intend to set out details of the notice of motion and affidavits in this matter because they appear from the judgement of the learned Judge President. This will be a minority judgement and, consistent with its status, I will make it relatively short.

   
 

Introduction

   
 

The Constitution of Botswana followed upon, and was necessary for, the independence of the country from the control of the United Kingdom. It established a governmental and administrative structure for the new country. It was designed not only for the immediate, but also the more distant, future as a governing document having a measure of rigidity but also capable of being altered by procedures which would afford an opportunity for the members of Parliament and sometimes the people of Botswana to give due consideration to changes. Because it was a new sovereign State, there had to be provisions for citizenship and these were embodied in the first instance, in Chapter III of the Constitution. The systems of Roman-Dutch law and customary law which, until independence, had prevailed in Bechuanaland Protectorate are not mentioned in the Constitution and the social mores of the various groups of inhabitants of the country were presumably intended to continue unaffected by independence save to the extent that changes were specifically provided for in the Constitution.

   
 

The procedures for changing the Constitution are three (see Section 89). Certain provisions may be altered by Parliament in the ordinary way by simple majority, save that the text of the bill making the change must be published in the Gazette not less than thirty days before its introduction (sub-section (2). There are other sections the amendment of which requires that the final voting in the Assembly should take place not less than three months after the previous voting thereon and, on the final vote, must be supported by not less than two-thirds of all the Members of the Assembly (sub-section (3). Lastly, there are certain provisions which can be altered only by the further step of a referendum of voters after the change has been passed by Parliament (sub-section (4). The provisions concerning citizenship in Chapter III of the Constitution were capable of being altered merely by publishing the text at least 30 days before introduction of the Bill. The amendment of the "Bill of Rights" sections in Chapter II requires that the final voting should take place not less than three months after the previous voting and achieve a two-thirds majority. The matters requiring a referendum include alterations to the composition and operation of Parliament, elections, the franchise and the provisions establishing the Superior Courts. This is understandable because three provisions are intended to entrench a particular form of democratic government and set up a court structure to ensure that that government acts within the Constitution.

   
 

Interpretation of Constitutional Provisions

   
 

There are dicta in judgements of this Court and others which declare that a Constitution should justifiably receive a slightly different approach to interpretation than ordinary legislation. These statements must be confined to those

[END OF PAGE 181]

   
 

portions of the Constitution which create or protect rights of citizens or others in the country. The bulk of the Constitution of Botswana, indeed everything other than Chapter II, contains nothing which would justify any peculiar treatment from the point of view of interpretation. Thus, to the extent that certain dicta refer generally to the Constitution and lay down a "liberal" or "generous" construction or a rule that a "technical" or a "close and literal" interpretation is to be avoided, they must be applicable, in my view, only to those provisions which are designed to confer rights upon or introduce protections for the individual person.

   
 

In a recent decision of the Supreme Court of Namibia, Minister of Defence, Namibia v. Mwandingh 1992 (2) SA 355 (NmS), the Court was called upon to interpret the words "anything done under such laws prior to date of independence in Sub-article (3) of Article 140 of the Constitution. The sub-article had nothing to do with the rights and freedoms of individuals, but was a purely transitional provision to secure the continued operation of the laws introduced by the previous government and things done pursuant thereto. Notwithstanding this the Supreme Court used the authorities concerning liberality and absence of technicality in interpretation to support the contention that the words "anything done" should mean "anything done, lawful or unlawful". While the ultimate conclusion is no doubt correct, I do not think that there was any justification for approaching the transitional provision in a constitutional statute in any different way from a transitional provision in an ordinary statute. It may be that lawyers and Judges are inclined in their approach to any ordinary problem of interpretation to look very closely at dictionary meanings of words and grammatical construction and to apply rules which have been laid down by the common law or developed in judicial precedent over the years in order to ascertain the intention of the Legislature. This has the merit of consistency and clarity.

   
 

Sometimes the word of a statute specifically, by way of definition, direct that a particular meaning should be given to a word or a certain approach to interpretation should be adopted. This may be an absolute injunction or merely a direction that, though the context should be the ultimate determinant, this statutory meaning or approach should generally be applied. The admonition by the Courts that, in the case of the provisions of a Constitution creating or protecting human rights, the interpretation should be "liberal" and "generous" and not "technical" or "close and literal" does not justify any departure from a definition section of the absolute kind or the "plain" meaning of words or sentences in order to give them a meaning and effect which the Court considers that the lawmaker should have given them. The. general injunctions regarding the interpretation of Constitutional statutes should not be relied upon as a licence to a Court, even when dealing with rights and freedoms, in effect, to alter a provision to avoid a consequence which it considers is not, in view of its assessment of the position in existing society, socially or morally desirable, if the meaning is clear. The special approach to interpretation applies only (a) where there is an ambiguity or an obscurity or (b), in a very different way, when the meaning of a word requires to be determined at a particular time against an existing social situation. The first justifiable relaxation from

[END OF PAGE 182]

   
 

conventional interpretation is illustrated by Minister of Home Affairs and another v. Collins McDonald Fisher [ 1980] AC 318(PC) where the meaning of the words "child of that person" in section 11 of the Constitution of Bermuda was considered. The Privy Council advised that the commonly applied limited meaning of "child" to be found in various contexts did not apply and that 'a child of that person" was intended to include illegitimate children. The second situation is illustrated by Ex parte Attorney-General Namibia: In re Corporal Punishment 1991 (3)SA 76 (NmS) Petrus and Another v. The State (1984) 1 BLR 14 and S v. Nkubi and Two Others 1988 (2) SA 702 (ZS) which deal with the vexed question of corporal punishment. There are many other cases referred to in these authorities which deal with the same subject and together they show a growing distaste on the part of the courts in recent years to the imposition of corporal punishment and where there is a Constitution 'outlawing cruel and inhuman punishment or degrading treatment declaring that legislatures are wholly or partially precluded from passing legislation imposing corporal punishment. Here and no doubt in many other cases the 'effect of words having a meaning which to some extent varies with the mores of the time must influence the Court and so one gets the notion of a Constitution being adapted by the Courts to the needs of a changing society. Whichever way it is framed the idea of the so-called changing Constitution must be limited to the area of changing moralities affecting the ambit and the content of words. This must be narrow indeed.

   
 

The liberal, generous, non-literal, non-technical approach to human rights legislation is dictated by its nature and purpose and is justified on this ground, not it is not to be taken as permission to Courts to cease always to seek the attention of the Legislature from the words which have been used. If a human rights code does not outlaw discrimination on the ground of sex, the Court has aright to declare that it does because, in its view, such a provision is desirable in the atmosphere of the time: it must be satisfied from the wording of the provision that the Legislature intended to prevent such discrimination.

   
 

Citizenship Legislation

   
 

Independence was accorded to the former Bechuanaland Protectorate as from 30th September 1966 ("the appointed day") and the area became a Republic under the name of Botswana (Botswana Independence Act 1966, 14 and 15 Eliz. Chapter 23, (section I). Section 3(3) of the United Kingdom Act provided that, except as provided by section 4, any person who, immediately before the appointed day, was a citizen of the United Kingdom and Colonies should, on that day, cease to he such a citizen if he became on that day a Botswana citizen. Section 4 dealt with certain cases where citizenship of the United Kingdom and Colonies was retained. Overall, the right to retain citizenship of the United Kingdom and Colonies was to be determined patrilineally. A woman who was married to a citizen of the United Kingdom and Colonies did not cease to be such unless her husband did so.

   
 

It was necessary by reason of the change in status of the area which is now Botswana for Parliament to introduce legislation creating a citizenship of Botswana and Chapter III of the Constitution did so. Sections 20 to 25 dealt with citizenship of Botswana, and in those situations in which parentage was

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the determining factor, it was acquired patrilineally irrespective of legitimacy or illegitimacy. Section 27 dealt with Commonwealth citizenship. Save in case of Commonwealth citizenship, dual citizenship was prohibited, and in order to obtain Botswana citizenship any citizenship of another country had to be renounced at a certain stage.

   
 

It was common cause between the parties during the argument of the present case that, if sections 4 and 5 of the present Citizenship Act, Chapter 01:01 conflicted with Chapter II of the Constitution, Chapter III, if it had not been embodied in the Constitution, would also have done so, because, though not in the same terms as the Citizenship Act, it was based upon the same principle, namely patrilineal determination.

   
 

At the hearing before this Court Counsel for the Appellant placed great emphasis upon the presence in the new Constitution of provisions which discriminated against women. This, it was argued, was a very fair indication Chapter II of the Constitution was not intended to contain provisions which prohibited discrimination against women. I did not hear any real answer that point. However, if the wording of Chapter II compels a construction which does give rise to such an anomalous situation, this construction must prevail notwithstanding the anomaly.

   
 

The Citizenship Act was assented to on the 31st December 1982, and has been amended. The two sections to which the respondent now takes objection 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

   
 

(a) his father was a citizen of Botswana; or,

   
 

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

   
 

(2) ....................................

   
 

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.

   
 

(2) ....................................

   
 

Locus Standi

   
 

There was some debate concerning the locus standi of the respondent to bring proceedings especially in regard to the declaration concerning section 5. None of the children of the respondent was born outside Botswana and there was no suggestion that further children would be born outside this country.

   
 

Since the argument of the respondent was based upon the contention that sections 4 and 5 of the Citizenship Act had been, or were being, or were likely to, contravene the Constitution in relation to her and not to her children, she has,

[END OF PAGE 184]

   
 

I consider, locus standi. In a sense, I suppose if at the end of the case it is found that this is not so, and the respondent has not shown a contravention actual or potential of any of sections 3 to 16 of the Constitution, she would then have been shown not to have locus standi. But I would prefer to put it on the basis of a failure to prove her case rather than an absence of her right to bring it. However, this should not be regarded as a license to any person to bring proceedings notwithstanding that he is unable to show that the provisions of Sections 3 to 16 have been, are being or are likely to be infringed in relation to him.

   
 

Section 3

   
 

Fundamental to the problem of the structure of Chapter II of the Constitution is the meaning and intention of section 3. Does it, by itself and independently of the remainder of the sections of the Chapter, create and protect rights and freedoms which may or may not be the subject of further characterisation and definition in the subsequent provisions of the Chapter? If this is so, the Courts will in the future be called upon to give substance to those general rights .and freedoms which are described in sub-paragraphs (a), (b), and (c) and, in these circumstances, the additional rights and freedoms not specifically dealt with in section 4 to 15 will have to be spelled out by the Courts in individual cases as and when they arise.

   
 

The alternative approach is to regard section 3 as an introductory or explanatory section which does not, by itself, create substantive rights and freedoms, but which is intended to create the background against which the specific right-creating provisions of section 4 to IS have to be viewed. It would then be taken as in the nature of a preamble or recital. I am of the view that the form of section 3 is such that the second approach must be the correct one. The Court must not look to this section independently of those that follow and try to discover whether a particular right which is claimed to exist falls within the description of the rights and freedoms in sub-paragraph (a), (b), or (c) taken together or separately. If that had been the intention, the word "whereas" would not have been used to introduce the section. The presence of this word is inappropriate to a section which is intended to create rights. Though its meaning varies in the context in which it is used, it generally introduces a statement fact and not a legislative command. The possible relevant meanings of "whereas" in the Shorter Oxford Dictionary are as follows:- "1. In view or consideration of the fact that; forasmuch as inasmuch as (Chiefly, now only, introducing a preamble or recital in a formal document)..."

   
 

If the section had been intended by itself to be a right-creating provision, it would have read: "Every person in Botswana is entitled to the fundamental rights and freedoms of the individual..." The rest of the section is not consistent with this approach. It says: "...the provisions of this Chapter 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..." (my emphasis). This, in my view, is a clear expression of the intention that the rights and freedoms to which an individual is entitled are to be found in the specific provision of the following sections in the Chapter. The words "the provisions of this Chapter shall have effect" mean the other provi-

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sions of the Chapter. It is clear also from these words that the provisions of subsequent sections 4 to 15 are there "for the purpose of affording protection to the rights and freedoms" and not primarily to introduce qualifications or restrictions thereon.

   
 

One is tempted in a case which for the first time requires of the Court an analysis of the basic structure of the Bill of Rights Chapter of the Constitution to illustrate or support a conclusion by taking various hypothetical situations in order to establish its correctness. However, this might have the effect, in subsequent concrete situations debated before this Court or before the High Court, of reliance upon, or discussions about, obiter dicta in relation to matters which have not been argued in the case under discussion and might lead to wrong decisions. If possible, it is better left alone when the case law about the meaning of the Constitution is emerging for the first time and to stick closely to what is strictly relevant and necessary to decide the matter placed before the Court. I will therefore not discuss the question of what the result would be of holding, in regard to matters other than those under immediate discussion, that section 3 gives enforceable rights and freedoms which do not fall within those declared and enacted in detail in the later section of Chapter II. Section 3 is a preamble or recital and may be used to assist in the construction of any of the provisions of Sections 4 to 15. . It is declaratory, in general terms, of the goal which it is sought to be reached by the provisions of the Chapter as a whole and its tenor must be studied if a doubt arises concerning the meaning and effect of the specific provisions regarding freedoms and liberties which are contained in Section 4 to 15.

   
 

The preamble or considerans, as it is sometimes called in Roman-Dutch law, is still to be found in private acts and in public laws of more solemn import (see Steyn Uitleg van Wette, 5th edition page 145). It is generally an expression of the intention of the Legislature and, in situations where the operative provisions of the legislation are not clear, may constitute a strong indication of the correct meaning (see Colonial Treasurer v. Rand Water Board 1907 TS 479 at 482; Law Union and Rock Insurance Co. Limited v. Carmichael's Executor 1917 AD 593 at 597; Attorney-General v. Prince Earnest Augustus of Hanover (1957) AC 436 at 467). One cannot look to it, as the respondent in the present case would have us do, to find within its four walls substantive legislative claims. In the present case which basically concerns alleged unlawful discriminatory legislation on the ground of sex, it is also significant that, though the section declares an entitlement to fundamental rights and rights irrespective, inter alia, of sex, Section 3 does not, when listing the fundamental rights and freedoms, mention freedom from discrimination. But for section 15 it would appear that freedom from discrimination, as such, was envisaged as a right or freedom which should be protected separately. The only rights which might conceivably embrace freedom from discrimination on the ground of sex is the right to "liberty" and the right not to be subjected to "degrading treatment". These matters will be dealt with hereafter.

   
 

Section 15

   
 

As I have already said the right not to be subjected to discrimination is not dealt with in section 3. To some extent, therefore, Section 15 stands alone

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among the various rights and freedoms to be found in Chapter II because it does not fall obviously within any of the rights and freedoms mentioned in paragraph (a), (b) and (c) of section 3. Section 15 prohibits two things - discriminatory legislation (sub-section (1)) and discriminatory treatment (sub-section (2)).

   
 

Both forms of discrimination are declared to be subject to certain specified exceptions and qualifications. It is not necessary in the context of section 15 to investigate the various possible nuances of meaning of the word "discriminatory". This is so, because it is defined and defined not in the common way by the introductory words "unless the context otherwise requires" or "unless from the context it otherwise appears" or similar modifications. In sub-section (3) it says that "discriminatory" for the purpose of section 15 "shall mean" what follows. Thus the introduction of a latitude in definition dictated by content is not permitted because the very purpose of the definition is to avoid such an approach. The intention is clearly that no other meaning than that maintained in sub-section (3) may be applied when construing section 15.

   
 

Discriminatory" in terms of sub-section (3) means "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 whereby persons of one such description are subjected to disabilities or 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". Why no mention of discrimination on the grounds of sex? For the respondent it was argued that, notwithstanding the absence of mention of discrimination on the grounds of sex, the definition must be as if such discrimination were expressly mentioned together with the other descriptions of personal characteristics actually listed. As I have already said, section 3 only becomes relevant if it can be shown that there is some vagueness or ambiguity in section 15 (3). The mere absence of mention of sexual discrimination does not create any such vagueness or ambiguity and a reference to section 3 in order to create one is not permissible. This would be similar to the situation of the unambiguous operative provision and ambiguous preamble which is dealt with in Eton College v. Minister of Agriculture, Fisheries and Foods (1964) 1 Ch 274 at 280. There might have been more substance in this argument if it could be shown that section 3 had something to do with the absence of discrimination as a separate right or freedom. But the rights and freedoms of sub-paragraphs (a), (b) and (c) of section 3 do not include a right not to be discriminated against. Any possible uncertainty appears in the preamble and not in section I5(3). The first possibility which was put forward was that the list of descriptions of categories of persons in sub-section (3) of section 15 is intended only to be illustrative and that the Court is at liberty to add to those descriptions that of sex. This can be done in two ways. Either the categories of persons mentioned in section 3 can be included in the definition of any category of persons which the court may from time to time think should not be discriminated against may be included in the definition provided that the category is ejusdem generis with those expressly listed. intention to repeat in Section 15(3) the categories of section 3 can hardly be inferred when section 15(3) introduced the category of "tribe" which is not

[END OF PAGE 187]

   
 

to be found in section 3. As for the second possibility, I cannot think that what is obviously intended as an attempt to list different descriptions of persons which is only limited to the extent that the ejusdem generis rule should be applicable to it.

   
 

Thus the idea that the list of descriptions of persons in sub-section (3) of section 15 is not exhaustive must be rejected.

   
 

The last contention on behalf of the respondent was that there had been an error by the omission of sex from the list of descriptions in sub-section 3 of section 15. Whatever the Roman-Dutch law might say about circumstances in which it is justifiable to substitute or add to words in an enactment, one thing is clear and that is that this only becomes possible when it is apparent what the legislature intended. It was argued that something as clearly part of modern sociological thinking as the desirability of non-discrimination on the ground of sex could not conceivably have been excluded from the description of persons who are entitled to non-discriminatory protection.

   
 

No evidence was introduced in the papers before the Court which could throw light on the subject of the development of a belief in non-discrimination between the sexes throughout the world. There have been cases in this Court where reference has been made to books on the social structure and customs of certain groups of persons in Botswana (see Petrus and Another v. the State (1984) BLR where reference is made to Prof. Schapera's, A Handbook of Tswana Law and Custom and also Major E.S.B. Tagart's,Report on Conditions existing among the Masarwa in the BamangwatoReserve). In the present case, the State called in aid the Restatement of African Law S Botswana and the above mentioned handbook to establish that the basis of customary law in Botswana was at the relevant time patrilineal and not matrilineal and that, inevitably, there must be discrimination against women in such a society. I do not think that, in the absence of agreement between the parties as to the attitude of the Botswana people generally to discrimination on the ground of sex, this Court can make a positive finding that the majority of persons in this country have any decided view on the question. It is not for us to speculate or to express our own view on that subject even though section 7 of the Common Law and Customary Law Act (Chapter 16:10) gives the Court the widest of powers in ascertaining the existence or content of Customary Law.

   
 

For the respondent it was argued that the existence of certain International Agreements before and after the date of the passing of the statute embodying the Constitution of Botswana to some of which Botswana was a party showed that the majority of the world was opposed to discrimination against women on the ground of sex and that it must not be lightly assumed that the Botswana Parliament would approve of a constitution in which discrimination on the round of sex was not outlawed.

   
 

Sub-section (9) of section 15 specifically preserves the validity of discriminatory provisions in legislation on the statute book when the Constitution came into operation. Furthermore, the provisions of Chapter III before amendment, whereby the children of a marriage were, in certain circumstances, to take the citizenship of their father and not their mother originally formed part of the Constitution itself. It would therefore be very hard to find that there was an

[END OF PAGE 188]

   
 

intention expressed in the Constitution to outlaw discrimination on the ground of sex so as to comply with international declarations in this regard. No doubt the then Government of Botswana, by becoming a party to such declarations, committed itself to a course which will ultimately lead to the exclusion of sex as a basis for discrimination, but the existence of such a direction is not a reason so compelling as to require the alteration of the meaning of section 15(3) by the insertion of words which are not there.

   
 

The conclusion to which I am therefore driven is that discrimination on the ground of sex is not prohibited by section 15 of the Constitution.

   
 

Sections 5 And 7

   
 

I now deal with certain other provisions of Chapter II because it has been suggested that, even if they are not "discriminatory" within the definition of that term in sub-section (3) of section 15, the citizenship provisions of the present Act may nevertheless infringe upon other rights and freedoms provided for in sections 4 to 14.

   
 

Section 5 prohibits deprivation of "personal liberty", subject to certain limitations. It was suggested that, even if they are not "discriminatory" within the meaning of Section 15(3), in considering this section one should have regard to the realities of the situation. The mother of children who are not citizens of this country because their father is not a Botswana citizen may, de facto, if not de jure, be restricted in her movements because of her obvious duty to care for and protect her minor children wherever they may be and because of the possibility that they may be prevented from having the right to enter this country by reason of their not being Botswana citizens.

   
 

In certain situations there may well be a very real limitation upon the options open to a woman who is a Botswana citizen but whose children are not. The same would apply where a father, who is not a Botswana citizen, has children this Court can make a positive finding that the majority of persons in this born out of wedlock as a result of which the mother's citizenship is the criterion

   
 

Is this a deprivation of "personal liberty" as contemplated by section 5(1) of Constitution? I do not think that it is. No doubt the question of what is or is not a condition of "personal liberty" will be the subject of debate in the future in relation to a number of situations. The Citizenship Act, by declaring the children to have a particular citizenship, does indeed limit the practical options which a family might have in the ordering of their personal lives. It also involves irritations and frustrations. But whatever might be the position of persons directly subjected to the legislation, in this case the children, it cannot, by any stretch of the imagination be said that the respondent's right to personal liberty is infringed by the fact that her children do not acquire Botswana citizenship under the Citizenship Act notwithstanding that she has to adapt her life to that situation. There are very few Acts of Parliament which do not place practical restraints, directly or indirectly, upon the ways in which people are entitled to behave.

   
 

Section 7 prohibits, inter alia, "degrading treatment", and it is suggested that the mother of children who are not Botswana citizens is subjected to degrading treatment because of the procedures at points of entry to and exit from

[END OF PAGE 189]

   
 

Botswana and the requirements of the Immigration Act regarding residence permits for her children. It is no doubt correct that immigration officials may, if not properly trained and supervised, act towards members of the public in a high-handed and obstructive manner. This behaviour carried to extremes may well have the effect of subjecting a member of the public to degrading treatment. Such conduct may even justify, in appropriate circumstances, legal proceedings for a declaration that the constitutional rights of the victim of such treatment have been infringed. But we are here concerned only with the Citizenship Act and what is done in terms of Act. Unless its provisions necessarily involve the imposition of degrading treatment, it cannot be held to be ultra vires the Constitution. The respondent is seeking to have sections 4 and 5 of the Citizenship Act declared null and void not particular conduct under that Act interdicted. I do not think, therefore, that sections 4 and 5 of the Citizenship Act are rendered a nullity by any provision in sections 4 to 14 of the Constitution.

   
 

Conclusion

   
 

In my view the provisions of sections 4 and 5 of the Citizenship Act are not ultra vires Chapter II of the Constitution and I would allow the appeal, set aside the declaration made by Horwitz AJ and direct that the respondent should pay the costs in both the High Court and the Appeal Court.

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