Botswana's Gender-Neutral Constitution

Botswana is one of the few success stories in Africa with a relatively long history of political and economic stability. However, its society and legal system are highly discriminatory against women. As in many African countries, the government has strongly resisted pressures to accommodate gender-based change in the political arena (Leslie Reference Leslie2006). The country gained independence “as a bourgeois, bureaucratic state through a generally peaceful, colonially-mediated process, with no particular commitment to the emancipation of women beyond the right of suffrage and the same ambiguities about women's status embedded in its Constitution as could be found elsewhere in southern Africa” (Van Allen Reference Van Allen2000, 142). At the time of independence, “women did not feature in political parties much at all” and enjoyed few political or economic rights (Geisler Reference Geisler2004, 100).

Botswana's constitution was adopted in 1965 prior to elections and independence in 1966. The constitution mentions “sex” once under the fundamental rights and freedoms of the individual (see Table 1). Additionally, Section 15(3) prohibits discrimination against several categories, but not sex. Many government officials (including the attorney general in the Unity Dow case discussed here) maintained that sex discrimination did not violate the constitution. The absence of a strong women's movement and the adoption of the constitution well before the appearance of international women's organizations or broader norms about the promotion of women's rights help explain the scarcity of gender-equality provisions in the constitution.

Table 1.

Constitutional gender provisions and gender-specific legislation in South Africa and Botswana

Despite the lack of attention to women's rights in the Botswana constitution, the single sex-equality clause has proven to be central for women's citizenship and gender-equality struggles. In fact, a constitutional challenge to a 1982 citizenship law became the focal point for women's organization and was instrumental in the development of the women's movement in Botswana.

In 1982, the Botswana government passed the Citizenship Act, which denied citizenship to the children of Tswana women married to foreigners. The organization Emang Basadi, or EB, (Emang Basadi is Setswana for “Stand Up, Women!”) formed in the mid-1980s to pressure the government to repeal all legislation that was discriminatory against women and, in particular, the Citizenship Act of 1982 (Molokomme Reference Molokomme1991; Van Allen Reference Van Allen2000). The Citizenship Act was challenged in court by Unity Dow, who argued that the law constituted discrimination and was unconstitutional. In Attorney General of the Republic of Botswana v. Unity Dow, the Botswana High Court ruled in favor of Dow (Leslie Reference Leslie2006). The government argued that the writers of the constitution had intended to maintain “patrilineal custom,” but the High Court judge rejected this position, stating that “the time that women were treated as chattel or were there to obey the whims and wishes of males is long past and it would be offensive to modern thinking and the spirit of the Constitution to find that the Constitution was framed deliberately to permit discrimination on the grounds of sex” (Van Allen, citing the Dow decision, 2007, 104). In 1994, the Court of Appeals upheld the ruling, finding that the Citizenship Act was unconstitutional. The Dow ruling effectively interpreted the equality and discrimination clauses together as implying that the Botswana constitution prohibits discrimination on the grounds of sex (Van Allen Reference Van Allen2000).

In the fallout from Dow, the ruling Botswana Democratic Party (BDP) was reluctant to grant equal rights to women and proposed a referendum to amend the constitution in order to allow the Citizenship Act to stand. The threat of amendment galvanized women's organizations (especially Emang Basadi). After two years of campaigning and lobbying, women's groups succeeded in getting the Citizenship Law changed (Leslie Reference Leslie2006).Footnote ⁷ Unlike South African women, “Botswana women emerged on the political scene not on the basis of an opening up of political systems by democracy but instead on account of a tightening of already restricted rights extended to women” (Geisler Reference Geisler2004, 166). That is, the women's movement rose up to fight an attempt to further limit women's rights, rather than to pursue greater equality.

Emang Basadi built on its success with the Citizenship Act and has continued to organize and raise awareness of women's issues. The EB is now perceived as a legitimate representative of women's interests and is often consulted by government (Leslie Reference Leslie2006). The policy changes, such as the Citizenship Act of 1995, the Deeds Registry Act, and the Marital Power Bill, are consistent with EB demands (see Table 1). More generally, EB is credited with initiating a real increase in democratic participation among women and men and improving the quality of democracy in Botswana (Leslie Reference Leslie2006; Selolwane Reference Selolwane, Edge and Lekorwe1998). Nonetheless, the women's movement in Botswana, while moderately strong, faces a government that has been “slow to adopt policies and laws related to women, [and] even slower and more reluctant to implement those decisions and policies that passed” (Leslie Reference Leslie2006, 117). The conservative Botswana Democratic Party, which has been in power since independence, has largely stood in the way of women's rights and has only grudgingly made changes when forced to (e.g., by the courts). The main opposition party, the Botswana National Front (BNF), is a social democratic party and more supportive of women's equality, but has been weakened by factionalism and a split in 1998 (Van Allen Reference Van Allen2007, 97).

Botswana women have long played an important political role in grassroots party mobilization efforts, fund-raising campaigns, and party recruitment; however, women continue to be marginalized in political party structures (Somolekae Reference Somolekae2006). As a result of women's advocacy efforts, nearly every political party in Botswana now has a women's wing, and those organizations are applying internal pressure for political inclusion of women. The BNF, for example, which created a women's wing in 1977, has adopted positive measures to increase representation of women at every level of party structure. However, even after the adoption of party quotas, the level of women's involvement is still below the BNF's expectations (Somolekae Reference Somolekae2006, 31). The conservative BDP created a women's wing in 1987 but has staunchly opposed the adoption of an internal party quota. Nevertheless, the party moved to incorporate women (co-opt, according to some) and the president appointed two women to the legislature (out of four “specially elected seats”), as well as Unity Dow (the defendant in the Citizenship Act case) as the first female judge on the High Court in 1998 and Athaliah Molokomme as the second female High Court judge in 2003 and later attorney general in 2005.

Women's representation in parliament is somewhat low in Botswana and has fallen in recent years. Women's representation in parliament dropped from 18% in 1999 to 11.1% in 2004, and by 2009 it had reached as low as 8% (Maundeni et al. Reference Maundeni, Mpabanga, Mfundisi and Sebudubudu2007, 16; see also Inter-parliamentary Union at http://www.ipu.org, accessed November 20, 2009).Footnote ⁸ Comparatively low levels of women's representation are related to the dominance of the conservative BDP in the party system, as well as to the first-past-the-post electoral system, which, in Botswana as elsewhere, has contributed to marginalizing women in the electoral arena. Moreover, at the local level, women remain underrepresented and governance structures are male dominated. In fact, the “proportion of women in political leadership, either as mayors/chairpersons or deputy mayors/chairpersons dropped from 21% in 1999 to a mere 14% in 2004” (Maundeni et al. Reference Maundeni, Mpabanga, Mfundisi and Sebudubudu2007, 38).

Despite low levels of female representation, Botswana's national gender machinery has become an important advocate for women's rights. One of the most important components of the national gender machinery is the Women's Affairs Department (WAD) located in the Ministry of Labor and Home Affairs. Originally established in 1981 as the National Women's Unit, it was promoted to a division in 1991 and then a department in 1996. The WAD is charged with mainstreaming gender in national policy and promoting women's empowerment. It is complemented by the efforts of the Botswana National Council on Women (BNCW), a high-level policy advisory body established in 1999, and the “gender focal points” in government ministries (Alexander Reference Alexander2005, 4-5). Like many gender machineries elsewhere, the WAD faces challenges that stem from limited resources that reduce its capacity, a limited recognition of its role within the public sector, and gender-insensitive attitudes among government officials.

Women's groups and women representatives have secured the passage of key pieces of legislation affecting women (summarized in Table 1 and discussed later). Although these laws constitute legislative successes for women's rights advocates in Botswana, it is important to note that these laws protect women's rights in the negative sense. That is, none of these laws include proactive measures to increase women's political or economic power; instead, they are generally focused on removing discriminatory legislation.

South Africa's Egalitarian Constitution

With respect to substantive rights, the South African constitution is one of the most inclusive in the world. It incorporates individual rights along with a wide array of social and cultural rights, and establishes a clear commitment to overcoming past injustices while recognizing diversity (Bauer and Taylor Reference Bauer and Taylor2005, 249). The constitution includes the right of human dignity and a principle of nonsexism, a strong and substantive equality-protection clause, and detailed rights for women, including rights to freedom and security of the person and bodily autonomy, freedom from violence, reproductive choice, and a prohibition against any expression that amounts to advocating gender hatred. The constitution requires courts to interpret legislation in the spirit of the Bill of Rights and to let international law and jurisprudence in other democracies guide judicial interpretation of the Bill of Rights (SA Constitution 39 [2]; see also Mokgoro Reference Mokgoro2004). The constitution is one of the most progressive in seeking to recognize women's difference, promote gender and racial equality, and redress past discrimination. The constitution's strong commitment to gender equality is visible both as a foundational value in South Africa's new democracy and as a set of substantive rights specifically related to gender equality. These provisions are summarized in Table 1.

The emphasis on gender equality can be attributed to several factors, including the timing of the transition to democracy, the role of the African National Congress in constitutional negotiation, the inclusion of women at the negotiating table, and a “favorable political opportunity structure” (Hassim Reference Hassim2002; Seidman Reference Seidman1999; Waylen Reference Waylen2007). The transition to democracy took place at the height of a global discourse on gender equality and at a time when international agencies increasingly linked funding to the goals of gender equality (Seidman Reference Seidman1999). At the same time, anti-apartheid activists organized separate women's forums to discuss how apartheid treated black women and men differently, stressing the need to incorporate women's issues into new political institutions (Seidman Reference Seidman1999). Feminist ideas gained currency within the ANC and contributed to calls for greater representation for women within national negotiations for a new constitutional framework, including the institutional basis for South Africa's gender machinery (Geisler Reference Geisler2000; Hassim Reference Hassim2002; Seidman Reference Seidman1999).

The strength and autonomy of the women's movement in South Africa has fluctuated over time. During the early 1990s, the women's movement was at its strongest and most united. The Women's National Coalition (WNC) brought together more than 90 different women's organizations and eight regional coalitions under an umbrella organization (Britton Reference Britton2002; Hassim Reference Hassim2002, Reference Hassim2006; Murphy Reference Murphy, Alexandra and Vivien2003). The WNC's Women's Charter articulated a commitment to broad principles that allowed the WNC to “present a strong, unified, and powerful voice, despite internal divisions and disagreements” (Britton Reference Britton2002, 41). The WNC was strong and autonomous during the transition period but soon after became fragmented: “[H]aving fulfilled its mandate of ensuring greater representation of women in political structures and developing a women's charter, the coalition was no longer needed” (Hassim Reference Hassim2006, 165). Although there are many organizations at the national, regional, and local level pursuing women's issues and rights, the movement currently suffers from a lack of leadership and is no longer united by a common purpose (Gouws Reference Gouws2004; Manjoo Reference Manjoo2005; O'Sullivan and Murray Reference O'Sullivan and Murray2005; Hames and Koen Reference Hames and Koen2006).

As in the Botswana case, South Africa's multiparty democracy is dominated by a single party, the ANC. The ANC has won sizable majorities in every election since the transition to democracy. Unlike the Botswana case, where the ruling party is largely hostile to women's rights and women's issues, the ANC has made a serious effort to promote gender equality. The ANC's gender egalitarian principles were strongly influenced by women's activism during the transition, and can also be seen partially as a response to electoral pressures (Hassim Reference Hassim2006; Murphy Reference Murphy, Alexandra and Vivien2003). The ANC committed itself to increasing gender representation by agreeing to a 30% party quota for women on its party list. This decision immediately catapulted South Africa into the global top 10 for representation of women (Reynolds Reference Reynolds1999), and today women hold 45% of all legislative seats in South Africa. While all political parties accept the principle of gender equality, the ANC is the only party that has systematically applied a quota and placed women in prime positions on the party list. Consequently, 82% of women members of parliament are ANC members. South Africa also leads the southern African countries in percentage of women with cabinet posts (42% women ministers and a woman deputy president) (Hames and Koen Reference Hames and Koen2006).

The National Gender Machinery in South Africa is complex and overlapping and includes structures at several governmental and nongovernmental levels. At the national executive level, the Office on the Status of Women (OSW), housed in the deputy president's office, facilitates and monitors the implementation of gender policy. In 1996, gender focal points were set up in government departments to integrate and mainstream gender into department policymaking and responsibilities. However, the various institutions at the executive level have been hamstrung by problems of political authority, low-level staffing, and insufficient resources (Hames and Koen Reference Hames and Koen2006). At the parliamentary level, the key gender structure is the Committee on the Improvement of the Quality of Life and the Status of Women (CIQLSW), which has a mandate to monitor progress toward achieving gender equality. Finally, the constitution required the creation of an independent body, the Commission on Gender Equality (CGE) to advocate for gender equality and monitor both the government and the private sector. The CGE has struggled: It is beset by internal dissent and immobilized by disagreements concerning how the nominally independent body should relate to the government and to the NGO community (Seidman Reference Seidman2003).Footnote ⁹

Overall, the National Gender Machinery “does not function in a coordinated and strategic manner [and] has been conflict-ridden since its inception” (Manjoo Reference Manjoo2005, 269). According to the Women in South Africa report (Hames and Koen Reference Hames and Koen2006), one of the central weaknesses of the National Gender Machinery in South Africa is that while there is strong commitment within the government for gender equality and gender mainstreaming, accountability for gender mainstreaming resides nowhere within the administration. In fact, that accountability was assumed to come from a strong women's movement, which is now in disarray (Seidman Reference Seidman2003). Moreover, while the women's machinery at the government level is extensive in South Africa, it has not been as effective as anticipated.

Nonetheless, the policy gains have been substantial (see Table 1). The following comparison illustrates how the constitutionalization of gender equality rights in South Africa shapes and informs gender-specific legislation, policy outcomes, and court rulings and how this contributes to substantially different outcomes in Botswana.

Family and Customary Law

Customary law has been identified by women's groups as a particularly contentious area of law.Footnote ¹⁰ Women's movements across Africa have pursued a rights-based strategy to challenge customary law, particularly with respect to land tenure and inheritance (Tripp Reference Tripp2004). The relationship between customary law and civil law is fundamentally different in South Africa and Botswana, but those differences are consistent with the approach each country takes to constitutionalizing gender difference—minimally and neutrally in Botswana versus proactively and equality oriented in South Africa. Both countries have passed important legislation regarding family law; however, there are clear differences in the nature and extent of this legislation, and in the judicial protection of women's rights in marriage and property, that may be traced to the constitutional status of customary law.Footnote ¹¹

Customary law governs marriage and divorce, a woman's rights within marriage, and her rights with respect to division of shared property, inheritance, and child custody. South Africa's constitution recognizes the right to celebrate traditional customs but explicitly states that customary law is subject to the constitution and must be consistent with the Bill of Rights. These constitutional conditions guided the passage of the Recognition of Customary Marriages Act,Footnote ¹² which removed inequality in customary marriages and abolished the power of husbands as guardians: “The wife in a customary marriage has in all respects a status equal to that of her husband” (RCMA 1998, Section 6). A memorandum on the act explains that the motivation of the law is to bring customary law in line with the constitution and international law. In particular, it states that it tries to reconcile the constitutional principle of preserving African cultural traditions with the right to equal treatment and nondiscrimination.

The South African High Court has generally interpreted customary law in light of the Bill of Rights. In Mabuza v. Mbatha (2003), the court found that customary law could regulate marriage so long as the law did not contravene the constitution (in particular, the equality clause).Footnote ¹³ An earlier case, Prior v. Battle and Others (1999), found that customary law contravened the constitution because it granted the husband “guardianship” over his wife, which the court found “outmoded and anachronistic.”Footnote ¹⁴ Similarly, with respect to inheritance and customary law, the South African Constitutional Court found a rule of male primogeniture in African customary law to entrench patriarchy and violate women's constitutional guarantees to human dignity and equality. In Bhe v. Magistrate, Khayelitsha and Others (2004), the court argued forcefully that the challenged customary law was not only inconsistent with the constitution but that customary law generally must evolve to meet new community standards.Footnote ¹⁵ In Shilubana and Others v. Nwamitwa (2008), a case concerning community leadership, the court recognized that customary law can evolve to promote gender equality. Similarly, in Gumede v. President of the Republic of South Africa and Others (2008), the court confirmed a Durban High Court ruling that gender discrimination in the division of property in divorce proceedings cannot be justified by customary law and is unconstitutional on gender-equality grounds. The constitutional requirement to reconcile customary law to the Bill of Rights in South Africa has informed legislation, shaped the legal strategies of women's rights advocates such as the Legal Resources Centre and the Women's Legal Trust (which have written “friend of the court” briefs in cases such as Gumede), and helped to protect and advance individual women's rights in the face of legal challenges.

In contrast, in Botswana, the relationship between civil law and customary law has left new family laws vulnerable to political and judicial challenges. Not only does the Botswana constitution lack any provision requiring that customary law be brought into line with individual constitutional rights (or international law), but it also includes a provisionFootnote ¹⁶ that exempts customary law from the equality and nondiscrimination provisions (Fombad Reference Fombad2004). As a result, women in Botswana have few legal grounds to challenge customary laws and achieve a more equitable legislative framework in the areas of marriage, inheritance and property rights, and child custody and maintenance.

Botswana operates under a dual system of general law (civil and common law) and customary law, where customary law is adjudicated by chiefs and local leaders and general law by a national court system. Under both systems of law, women have received unequal treatment in matters of family law (Leslie Reference Leslie2006). The Deeds Registry (Amendment) Act was amended in 1996 to allow married women to hold property in their own names, though anecdotal evidence suggests that enforcement is spotty at best (Nyamu-Musembi Reference Nyamu-Musembi, Mukhopadhyay and Singh2007). In 2004, the parliament passed the Marital Power Act abolishing “the power of men as household heads and sole decision-makers in family property and other related issues” (Alexander Reference Alexander2005, 34). The scope of these statutes is greatly limited because they do not explicitly apply to customary and religious marriages, an interpretation supported by the High Court.Footnote ¹⁷ EB has fought hard but unsuccessfully to subsume customary law to women's equal rights (Van Allen Reference Van Allen2007). Thus, advocates for women's rights must defend legislative advances in the face of opposition from “Chiefs and Parliamentarians [who] have opposed the abolition of men's marital power and argued that ‘men are natural heads of households and decision-makers’ which should not be questioned” (Alexander Reference Alexander2005, 35).

Gender-Based Violence

Violence against women is a violation of individual constitutional rights and fundamental freedoms and constitutes one of the “most widespread human rights abuses and public health problems in the world today” (Committee on African Affairs 2007, 1). The constitutions of Botswana and South Africa present starkly divergent constitutional approaches to women's rights and state obligations regarding violence against women.

South Africa's constitution states that all citizens have an “inherent dignity and the right to have their dignity respected and protected.” Moreover, the constitution provides everyone with the right to “bodily and psychological integrity, which includes the right to security and control over their body.” Finally, the South African constitution also states that the government has a duty to prevent violence and asserts that everyone has the right “to be free from all forms of violence from either public or private sources.”

South Africa has enacted far-reaching legislation that draws on these constitutional provisions. For example, the preamble of South Africa's Domestic Violence Act (116 of 1998) states that domestic violence is a serious social problem and that the state has a responsibility to end violence against women and children. It invokes the constitution (the right to equality, freedom and security of the person) and international commitments (UN Convention on the Elimination of All Forms of Discrimination Against Women, or CEDAW). The law defines domestic violence in broad terms (including physical, economic and emotional abuse, harassment, and intimidation), specifies police procedures and obligations (and disciplinary measures if police fail to meet these obligations), and details court powers and procedures for applying for protection and issuing arrest warrants.

Moreover, in cases concerning domestic violence and violence against women, the South African Constitutional Court has drawn on gender equality provisions (Isaac Reference Isaac2005). For example, in deciding S v. Baloyi (2000), the court argued that because “domestic violence predominantly affects women[,] the constitutional right to gender equality is jeopardized by a legal system that fails to adequately address this violence.” In Carmichele v. Ministry of Safety and Security (2001), the court went further to uphold the claim that the state has a positive duty with respect to violence against women: “The Court noted that in addressing such obligations in relation to dignity and the freedom and security of the person, ‘few things can be more important to women than freedom from the threat of sexual violence’” (Isaac Reference Isaac2005, 36). This ruling was reinforced in Van Eeden v. Minister of Safety and Security (2001), in which the Court of Appeal found that the “state is obliged under international law to protect women against violent crime and against the gender discrimination inherent in violence against women” (Isaac Reference Isaac2005, 39).

The constitution of Botswana includes a provision for the protection of “life, liberty, security of the person and the protection of the law.” However, in the absence of a stronger constitutional commitment to gender equality in Botswana, the individual right to personal security has not been as powerful an argument or anchor for antiviolence policy, and there has been little progress on antiviolence legislation. Some strides have been made with respect to reforms to the penal code. The new penal code is gender neutral and provides protections for all victims of sexual violence, as well as minimum sentences for convicted offenders (Committee on African Affairs 2007).Footnote ¹⁸

Significantly, national law in Botswana does not recognize marital rape, and neither do the courts. For example, in a 2003 court case brought by a woman who was abducted and repeatedly raped by her husband, the judge ruled that marriage implied consent. Moreover, customary law allows a man to “chastise” his wife (Selolwane Reference Selolwane, Edge and Lekorwe1998; U.S. State Department 2005). Recently, women's rights activists were “incensed” when a domestic violence bill proposal did not prohibit marital rape.Footnote ¹⁹ Marital rape and intimate partner violence exceptions in law imply the state's consent to discriminatory laws and customs that systematically disadvantage women and contravene international law. The lack of government action on gender-based violence continues despite the fact that Botswana has signed the African Protocol and other international treaties that require antiviolence legislation.

Workplace Equality

With regards to equal opportunity in the workplace, Tswana women have little legal standing to fight discrimination or to pursue equal rights. The Employment Act of 1996 is generally gender neutral and simply states that employment law applies to both sexes. The 1996 amendment is more gender neutral in that it eliminated protections for female employees that restricted night work and working underground in mines. However, the act also contains provisions for paid maternity leave and the right to nurse. Otherwise, there is no mention of sex discrimination, positive action, sexual harassment, or other gender-specific language.Footnote ²⁰ Finally, enforcement of the Employment Act is reported to be weak in the private and informal sectors (Alexander Reference Alexander2005, 17).

By contrast, South Africa's 1998 Employment Equity Act (EEA) explicitly prohibits unfair discrimination on the basis of race, gender, sex, pregnancy, and marital status. The Employment Equity Act directly reflects the commitment to gender equality and positive actions to remedy past discrimination. Specifically, the preamble of the legislation states that the objective is to “promote the constitutional right of equality and the exercise of true democracy.” The act also provides for positive action to remediate inequalities in the workplace in order “to promote equal opportunity through elimination of unfair discrimination [and] implement[s] affirmative action measures to redress … disadvantages” (Chapter 1, Section 2).Footnote ²¹ The EEA also includes extensive details on prohibition of discrimination, positive action, monitoring, enforcement, and legal proceedings.

Court cases have reinforced the EEA and constitutional rights to equality and fair labor practices. Case law related to employment equality has favored women alleging discrimination. In CWIU v. Johnson and Johnson Ltd. (1998), female employees argued that a series of layoffs were discriminatory because the only jobs not targeted for layoffs were those open only to men. The Labour Court agreed that this was discriminatory behavior (ILO 2008).Footnote ²² In Beverly Whitehead v. Woolworths (Pty) Ltd. (1999), Whitehead successfully argued that she was the victim of sex discrimination when a full-time employment contract was withdrawn and changed to a part-time contract upon discovering that she was pregnant (ILO 2008). However, Woolworths subsequently appealed the decision and won a reversal. The reversal on appeal highlights the uneven judicial protection of women's rights in the workplace, and points up the uncertainty of rights-based strategies of legal change.

How and When Constitutional Provisions Matter

The cases of Botswana and South Africa underscore the ways in which constitutional provisions can provide an enabling framework for women's rights advocacy and inspire and shape the content of subsequent legislation and judicial revision of discriminatory laws and policies. There are important differences with respect to policy change and legislation on behalf of women's equality that is related to the extent and nature of constitutional provisions concerning gender equality rights. In South Africa, constitutional provisions recognize women as a category of individuals who require protection and promotion to achieve equality. Gender equality is a stated constitutional value in South Africa, and subsequent legislation has drawn on these constitutional ideals and concrete provisions to actively promote gender equality. Legislation is also more specific with respect to objectives, scope, and enforcement than in the Botswana case. Furthermore, South African courts, particularly the Constitutional Court, have actively upheld and interpreted the constitutional concept of gender equality and worked to balance gender equality against other constitutional values. This supports the contention that constitutional guarantees provide stronger legal foundations and allow courts to interpret rights more broadly. Botswana's constitution, with its single sex-equality statement is basically neutral toward the principle of gender equality, and policy related to gender equality has been much less extensive and specific than in the South African case.

Although Botswana's constitution was not motivated by gender equality or influenced by a strong women's movement, the single constitutional sex-equality provision has nonetheless proven to be important for at least three reasons. First, this provision was central to reversing the discriminatory Citizenship Act despite strong opposition from the ruling party. Without this provision, the case against the act would not have had solid legal footing, and most likely this fight would have lasted even longer than it did. Second, the court decision led to a new interpretation of the equality clause and the antidiscriminatory clause (which does not specify sex) to include gender discrimination. Third, the equality provision provided the nascent women's movement (Emang Basadi) with a tool to successfully fight discriminatory laws. Consistent with Stuart Scheingold's (2004) argument, the presence of the right to equality and the legal challenge to the Citizenship Act helped mobilize the women's movement. That is, without this early success in constitutional adjudication of women's rights, the EB might have lost momentum and/or enjoyed considerably less success. In short, for women's rights advocates, the minimal constitutional recognition of sex equality is better than no recognition of gender differences.

At the same time, when compared with South Africa's constitution, the lack of a commitment to gender equality rights in Botswana's constitution has clearly imposed limits on activists' ability to promote women's equality. Although Botswana's single provision has made it possible for women to successfully oppose and abolish a number of discriminatory laws, they have had far less success in getting more proactive policies to promote women's equality. That is, the constitution provides the legal grounds for protecting women's right to equality in the negative sense; it does not promote equality, includes no positive actions to redress past discrimination, and constitutional doctrine does not envision a positive duty for the state to ensure that rights are enforced. Another critical difference is the absence of a constitutional provision that sets limits on customary law, which has hindered the effectiveness of legislative policies intended to remove discriminatory practices in family law. Compared to circumstances in South Africa, women's groups in Botswana have been on the defensive.

The South African case study also demonstrates the importance of constitutional gender equality provisions on law and judicial interpretation. The language of the South African constitution, which is arguably one of most progressive with respect to gender equality, has made its way into specific laws and policies seeking to improve women's social, economic, and political status. Moreover, several key court decisions have upheld these laws and have reinforced and/or clarified the constitutional status of women's individual rights.