End Discriminatory Laws, and Transformative Change Can Follow

In September 2013, four elderly sisters in Botswana were finally and definitively allowed to remain in the ancestral home where they had spent most of their lives — the result of their own tenacity and determination that a young nephew could not step in and take ownership of a property they had lovingly maintained.

This landmark decision by the highest court in Botswana, the Court of Appeal, followed five years of efforts by women’s networks and legal associations who helped the sisters bring their claim. The judges decided that customary laws favoring the rights of the youngest male heir were simply out of date.

“The Constitutional values of equality before the law and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems,” wrote Justice Lesetedi of the Botswana Court of Appeal.

The reform of discriminatory laws can lead to transformative change.

Inheritance law reform in India equalizing unmarried daughters’ rights to ancestral land led to increased investment in girls’ education and later marriage. In Ethiopia, reform of family laws — including changes that removed husbands’ control over marital property — saw increased female labor force participation overall and in more productive sectors. These legal changes have consequences for health as well. Equal inheritance and property rights for women and girls can help mitigate the economic and social burdens of HIV.
 
Two decades ago, also in Botswana, Unity Dow successfully challenged citizenship laws that prevented her from passing on citizenship to her non-national husband and her children. The government not only endorsed the court’s decision by reforming citizenship laws, but changed family laws that gave financial control over joint property to the husband and even changed the Constitution itself.
 
The opportunities and the pathways for reform are important to understand from a policy perspective and can be complex in systems where statutory and customary laws and courts exist side by side.
 
We trace the process of reform from the milestone case of Unity Dow to the present day Mmusi case in our new paper, “Women’s Movements, Plural Legal Systems, and the Botswana Constitution: How Reform Happens.” We also explore how this can apply in other contexts. 
 
The reforms in Botswana are consistent with global trends: A 2013 study found that more than 50% of legal constraints affecting women’s economic empowerment that were in force in 1960 have now been reformed.
 
But it’s not over yet. Some 90% of the 143 countries covered by the World Bank Group’s Women, Business, and the Law report still have one discriminatory law on the books, and almost one-fifth have more than 10 discriminatory laws.
 
So what can we learn from the perseverance of these four sisters and their road to groundbreaking legal victory?

1. Lasting legal reform can start from the bottom up. Collective action by women’s networks can be an early driver of change.
2. It takes a legal village. Community mobilization, legal networks, the judiciary, community leaders, government champions, and international support are key elements in the reform process.
3. Never say never. Discriminatory norms and laws do evolve and change for the better. International institutions can support the process by sharing knowledge and expertise, raising awareness, building capacity, and helping amplify the voices and pathways for transformative change.

The themes of discriminatory laws and social norms will be explored further in a major new report on women’s voice, agency, and participation that the World Bank Group will launch in April 2014.