Lobatse

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Domestic Case Law

Attorney General v. Unity Dow Court of Appeal of Botswana at Lobatse (1992)

Gender discrimination, International law

The respondent, Ms. Unity Dow, brought a case to the High Court of Botswana asserting that sections 4 and 5 of the Citizenship Act violated her right to equal protection of the law and protection from discrimination on the basis of sex because the sections of the Citizenship Act treated children differently depending on whether they were born to citizen mothers or to citizen fathers. The respondent had one child with an American man prior to their marriage and two children after. Botswana's citizenship requirements allowed only children born outside of marriage to inherit their mother's citizenship, so the respondent's first child was a citizen of Botswana while the two born during her marriage were not. Though not the central issue of the case, the Court noted that an immediate effect of the law could be the expulsion of the husband and non-citizen children from Botswana. The Court of Appeal upheld the High Court's decision in finding that the Citizenship Act discriminated on the basis of gender under both the Botswana Constitution and the Declaration on the Elimination of Discrimination Against Women because it punishes a female citizen for marrying a non-citizen male. In addition, the Court considered similar cases in different countries in reaching its opinion.  (High Court decision available at: https://www.law.cornell.edu/sites/www.law.cornell.edu/files/women-and-ju...)



Makuto v. State Court of Appeal for Botswana at Lobatse (2000)

Sexual violence and rape

The appellant appealed his conviction for rape, arguing that the Penal Code sections dealing with rape are discriminatory because they provide increased penalties for a person convicted of rape if they are found to be HIV-positive.  The Court held that the relevant provisions of the Penal Code apply when the convicted person was HIV-positive at the time he committed the rape and that it is therefore a reasonable provision in order to combat the spread of HIV/AIDS.   



Masusu v. Masusu High Court of Botswana at Lobatse (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The appellant-wife sought and was granted a divorce from her husband on the grounds of domestic violence and that he did not financially support her or their two children. The wife appeals a decision by the Customary Court of Appeal granting the house to the respondent-husband on the grounds that under customary law, a wife who divorces her husband is at fault because a wife is supposed to remain in her marital home regardless of her husband's actions. The High Court found that the Customary Court's reasoning discriminated against women because it automatically faulted the wife for filing a divorce no matter what her husband did and ordered the marital home be sold and the profits given to the appellant-wife.   



State. v. Matlho Court of Appeal of Botswana (2008)

Gender-based violence in general, Sexual violence and rape

The appellant challenged the sentence for rape under the sections of the Penal Code that set forth mandatory minimum sentences for rape charges depending on circumstances such as the perpetrator's use of violence or the perpetrator's status as being HIV positive. Section 142(5) of the Penal Code prohibits a sentence for rape from running concurrently with any other offense; the sentences must be served consecutively.  The appellant was convicted on two counts of rape and sentenced to the mandatory minimum sentence of 10 years for each count, resulting in a total of 20 years imprisonment, which he claimed was a violation of the constitutional prohibition on "torture or inhuman or degrading punishment."  The Court upheld the conviction, noting that although it was undeniably severe, it was not disproportionate to the offense, especially in light of the increase in the incidence of rape in Botswana and the heinous nature of rape itself.



State. v. Ketlwaeletswe Court of Appeal of Botswana at Lobatse (2007)

Sexual violence and rape, Statutory rape or defilement

The appellant was found guilty in magistrates court of raping a 10-year-old girl and sentenced to 10 years in prison.  He appeals on the question of whether sexual intercourse with a girl of that age should be considered as rape or "defilement" because rape requires a lack of consent while the Penal Code defines defilement as carnal knowledge of anyone under the age of 16. The High Court held that, in accordance with the principle followed by the common law in South Africa incorporated by Botswana, a girl under the age of 12 is deemed incapable of consenting to intercourse and therefore intercourse with any person under the age of 12 is deemed rape. 



Sekoto v. Director of Public Prosecutions Court of Appeal of Botswana at Lobatse (2007)

Domestic and intimate partner violence

The appellant appeals his conviction for the murder of his live-in girlfriend and his sentence of 12 years imprisonment.  The Court upheld the sentence, noting the increasing incidence in Botswana of former lovers killing their partners and opining that the courts should impose appropriately stiff sentences as a deterrent.