sexual health and human rights in the african region - The ICHRP

(d) for the application in the case of members of a particular race, community or tribe of
customary law with respect to any matter to the exclusion of any law in respect to
that matter which is applicable in the case of other persons or not; or
(e) whereby persons of any such description as is mentioned in subsection 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 these persons or to persons of any other such
description, is reasonably justifiable in a democratic society.
[25] Section 15 is the main equality clause. An interesting aspect to the drafting of
section 15(3) is that it does not make explicit reference to ‘sex’ as a protected
ground. Notwithstanding this limitation, the Court unanimously upheld
dismissed the appeal and confirmed that provisions of the Citizenship Act that
discriminated on the ground of sex were unconstitutional. It said that if the
drafters of the Constitution had intended to render section 15 discriminatory on
the ground of sex, they would have expressed the intention in clear words, not
least because section 3 of the Constitution expressly provides ‘sex’ as one of the
protected grounds. In this connection, Justice Amissah said:
If the makers of the Constitution had intended that equal treatment of males and females
be excepted from the application of subs 15(1) and (2), I feel confident, after examination
of these provisions, that they would have adopted one of the express exclusion words
that they had used in this very same section and in the sister section referred to. I would
expect that, just as section 3 boldly states that every person is entitled to the protection of
the law irrespective of sex, in other words giving a guarantee of equal protection, section
15 in some part would also say again, equally expressly, that for the purposes of
maintaining the patrilineal structure of society, or whatever reason the framers of the
Constitution thought necessary, discriminatory laws or treatment may be passed, or
meted to men.
[26] In reaching this conclusion, the Court of Appeal of Botswana took into account
the international obligations of Botswana under human rights treaties. The state
had objected to international human rights treaties being relied upon to support
the claim of Unity Dow. Referring to the African Charter, and in particular the
relevance of article 2 of the Charter, the Court said:
Botswana is a signatory to this charter….Even if it is accepted that those treaties and
conventions do not confer enforceable rights on individuals within the State until
Parliament has legislated its provisions into the law of the land, in so far as such relevant
international treaties and conventions may be referred to as an aid to construction of
enactments, including the Constitution, I find myself at a loss to understand the
complaint made against their use in that manner in the interpretation of what no doubt
are some difficult provisions of the Constitution…This does not seem to me to be saying
that the OAU convention, or by its proper name the African Charter on Human and
Peoples’ Rights, is binding on Botswana as legislation passed by its Parliament.
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