Attorney-General v Dow

Parties (including notable third parties)

Attorney-General of Botswana (Appellant) Unity Dow (Respondent)

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Summary of Facts

The Respondent, a female national of Botswana, married a United States citizen. They resided in Botswana where their three children were born. The eldest child was born before the respondent and her husband married and the other two children were born during the marriage.

Section 4 of the Citizenship Act 1984 of Botswana (‘the Act’) related to children born in Botswana. It relevantly provided: (a) a child born to married parents would obtain Botswana citizenship at birth only if the child’s father was a citizen of Botswana; and (b) if a child was born out of wedlock, the child would obtain citizenship at birth if the mother was a Botswana citizen. Section 5 of the Act provided equivalent rules but for children born outside of Botswana.

By operation of the citizenship law, the Respondent’s eldest child became a Botswana citizen at birth but her two youngest children did not. The right of the youngest children to remain in the country depended on their American father retaining a residence permit which required periodic renewal and was not guaranteed.

The respondent successfully applied to the High Court of Botswana for a declaration that Sections 4 and 5 of the Act were invalid as they breached Section 3 and certain other sections of the Constitution of Botswana (‘the Constitution’). Section 3 of the Constitution relevantly provided: ‘Whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, […] whatever his race, place of origin, political opinions, colour, creed or sex [may be]…’.

The Attorney-General of Botswana appealed against the High Court’s decision on several grounds, which included that Section 15(1) of the Constitution allowed laws that discriminated on the grounds of sex as the definition of discriminatory treatment in Section 15(3) did not expressly refer to ‘sex’.Sections 15(1) and 15(3) of the Constitution relevantly provided:

‘(1) Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall make any provision that is discriminatory either of itself or in its effect.

[…]

(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…”’.

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Legal Arguments

Legal Arguments by the Appellant

The Appellant argued that Sections 4 and 5 of the Act were not unconstitutional even if they were discriminatory in effect. The Appellant argued that section 15 of the Constitution was intentionally drafted to allow legislation which discriminated on the grounds of sex. This was, the appellant argued, consistent with and to preserve the male-orientated and patrilineal nature of Botswana society.

The Appellant also argued that the Respondent lacked standing to bring her application because: (1) she had freely chosen to marry a non-citizen in the context of the existing citizenship regime in Botswana (and having done so, should not be entitled to challenge the validity of the citizenship laws); and (2) the Respondent was not sufficiently closely affected by the claimed discrimination because it related to her children and would not necessarily result in her family needing to emigrate.

Legal Arguments by the Respondent

The Respondent argued that the relevant citizenship law was discriminatory as it prevented her two youngest children, by reason of her being a female, from obtaining Botswana citizenship at birth. The Appellant submitted that this resulted in the children, who resided in Botswana, only receiving limited rights and legal protections in the country of their birth.

The Respondent argued that the relevant citizenship law, and its effect on her, breached several sections of the Constitution, including the general rights protected under Section 3, the protection from degrading treatment afforded by Section 7 and the right to freedom of movement and immunity from expulsion under Section 14.

The Respondent argued that her personal rights were being infringed by the relevant citizenship law which gave her standing to make an application for redress in accordance with the Constitution. In particular, she argued that the effect of the citizenship law deprived her of freedom of movement as her children could be required to leave, or denied re-entry to, Botswana due to their citizenship status.

Outcome

On Standing

The Court held that the Respondent had standing to bring her application. This was on the basis of her parental relationship with the affected children, and the resulting impact on the respondent of the alleged discrimination.

On the Merits

The majority of the Court (Schreiner and Puckrin JJA dissenting) held that Section 4 of the Act was unconstitutional. The Court’s reasoning focused on the construction of relevant sections of the Constitution, in particular whether they permitted laws which discriminated on the basis of sex. The majority held that Section 3 of the Constitution was an operative provision (not preambular) which conferred general rights on all individuals and should not be read down by a narrow interpretation of the discriminatory treatment definition in Section 15(3).

The majority held that relevant international law may by considered as an aide to interpreting the Constitution and that, where the language permits, the Constitution should be construed consistently with Botswana’s obligations under international law. Accordingly, the Court considered anti-discrimination provisions contained in relevant international treaties and conventions including the Universal Declaration of Human Rights 1948 and the African Charter on Human and Peoples’ Rights 1981.

The majority also noted the primacy of the Constitution in Botswana’s legal system and that it prevails to the extent of any inconsistency with patrilineal (or other) local customs and municipal law.

The Court declined to make a ruling in relation to Section 5 of the Act as it did not apply to any of the respondent’s children.

Dissenting judgements

In dissenting judgments, Schreiner and Puckrin JJA held that on a proper construction of the Constitution, Section 15 permitted laws which discriminated on the grounds of sex. They considered that the text, and intent, of Section 15 were sufficiently clear in that regard and that, as a result, the Court was not permitted to look to extraneous materials such as relevant international law.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Universal Declaration of Human Rights 1948	Article 2
Regional	African Charter on Human and Peoples’ Rights 1981	Articles 2, 3 and 18
Domestic	Constitution of the Republic of Botswana	Sections 3, 7, 14 and 15
Domestic	Citizenship Act 1984 (Botswana)	Sections 4 and 5

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

E. K. Quansah, 'Unity Dow v. Attorney-General of Botswana - The Sequel' (1993) 5(1) African Journal of International and Comparative Law 189.

• In an article published not long after the Court’s decision in this case, Quansah observed that the Court’s ruling that Section 4 of the Citizenship Act was unconstitutional would lead to a ‘vacuum [that needed] to be filled’ by the legislature in one of four ways: (1) implement the Court’s decision; (2) ignore the decision; (3) reverse the Court’s decision; or (4) call a referendum on the issue. The author urged the legislature to implement the first option, including to ‘put an end to the anxiety that is afflicting the [affected] families’.
• Quansah also argued that the Court’s broad approach to locus standi in this case is to be welcome, as challenges brought by affected citizens are necessary to ensure constitutional rule.

Onkemetse Tshosa, 'The Application of Non-Discrimination in Botswana in Light of Attorney-General of Botswana v. Unity Dow: Judicial Approach and Practice' (2001) 5(2-3) International Journal of Discrimination and the Law 189.

• Tshosa observes that many national Constitutions, in broad terms, recognise and protect human rights, including the right to non-discrimination. Tshosa argues that, consistent with the majority decision in this case, national courts must take a ‘generous’ approach to interpreting those constitutional rights informed by international standards.
• Tshosa also notes that the reasoning in this case has influenced other African courts, in particular in South Africa and Zimbabwe, in cases involving constitutional human rights.

Charles Manga Fombad, 'The Constitutional Protection against Discrimination in Botswana' (2004) 53(1) International and Comparative Law Quarterly 139

• Fombad argues that, consistent with the decision of the Court in this case, courts should adopt a flexible and purposive approach when construing anti-discrimination provisions, in particular in determining which groups or categories of persons are intended to be protected by those provisions.
• Fomad argues that a helpful guide to construing such provisions in the Constitution of Botswana is the anti-discrimination provisions contained in international and regional instruments that Botswana has signed and ratified.