¹ It is necessary to point out here that our discussion is limited to the constitutional position. The Roman-Dutch/English common law principles that apply in Botswana also provide some protection against invidious protection against discrimination in other areas of the law. A good example is the refusal by courts to enforce discriminatory restrictive covenants or conditions in contracts. In administrative law, discrimination by government in administrative decision-making can be challenged in judicial review proceedings by, for example, arguing that the decision-maker took an irrelevant consideration into account or that he reached a decision that is unreasonable.Google Scholar

² See The Reverse Discrimination Controversy: A Moral and Legal Analysis (New JerseyRowland and Littlefield 1980) 11–12.Google Scholar

³ See Christopher, McCrudden (ed) Anti-Discrimination Law (AldershotDartmouth 1991), at xiv.Google Scholar

⁴ See UNAIDS, Protocol for the Identification of Discrimination against People Living with HIV (Geneva UNAIDS 2002), at 7.Google Scholar

⁵ See Chandrachud, (ed) Aiyar, Pramantha. The Law Lexicon (2nd edn AllhabadWadhwa & Co 1997), at 798.Google Scholar

⁶ [1992] BLR 119.Google Scholar

⁷ See McCrudden, (ed) op cit xviii–xix.Google Scholar

⁸ See generally Fredman, Sandra, Discrimination Law (OxfordOxford University Press 2002) 67–8.Google Scholar

⁹ See generally Barron, and Dienes, , Constitutional Law (Black Letter Series 1991) 203Google Scholarand Devenish, Ge, A Commentary on the South African Bill of Rights (Durban Butterworths 1999), at 52.Google Scholar

¹⁰ This approach is fully discussed by Fredman, op cit 68–76, to which the discussion of this section of the paper is indebted.Google Scholar

¹¹ Ibid 70–5. By contrast, both the European Court of Justice in P v S and Cornwall Country Council [1996] ECR 1-2143 and the European Court of Human Rights in Salgueiro da Silva v Portugal (unreported: ECHR, 21 Dec 1999) have held that discrimination against transsexuals in the former case and sexual orientation in the second case where included in the prohibition against sex discrimination.

¹² This approach is also adopted in the European Convention on Human Rights, which states in Art 14 that the enjoyment of the rights and freedoms in the Convention shall be secured without discrimination ‘on grounds such as…’.Google Scholar

¹³ See also, Onkemetse, Tshosa, ‘The Application of Non-Discrimination in Botswana in the Light of Attorney-General of Botswana v Unity Dow: Judicial Approach and Practice’ 5 International Journal of Discrimination and the Law (2001) 189–202.Google Scholar

¹⁴ [1992] BLR, at 146–7.Google Scholar

¹⁵ Ibid, at 147.

¹⁶ (1985) 11 DLR (4th) 641 (SCC), at 649. This has been cited with approval in two South African Supreme Court judgments; De Klerk & Anor v Du Plessis 1994 (6) BCLR 124 (T) and Khala v The Minister of Safety and Security 1994 (2) BCLR 89 (W), at 92.Google Scholar

¹⁷ Per Lord Wilberforce in Minister of Home Affairs v Fisher [1980] AC 319, at 329.Google Scholar

¹⁸ [1992] BLR, at 148.Google Scholar

¹⁹ Also see Art 27, which states that, ‘In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.’Google Scholar

²⁰ [1992] BLR 119, at 154.Google Scholar

²¹ MISCA 229/2001 (unreported).Google Scholar

²² Ibid, at 14 of the transcript.

²³ As regards whether a restriction is justifiable in a democratic society, it has been said that this requires the courts to do a balancing exercise to determine whether the benefits to a democratic society resulting from the specific restriction demonstrably outweigh the detriment caused to a democratic society by the specific restriction. For a restriction to be reasonably justifiable in a democratic society, the restriction itself must be reasonable. From the facts of the case, no reasonable justification was given for the restrictions imposed by the directive. See generally Art 19, The Interpretation of Fundamental Rights Provisions London (1997) at 55.Google Scholar

²⁴ [1996] BLR 710.Google Scholar

²⁵ Ibid, at 728.

²⁶ [1995] BLR 178.Google Scholar

²⁷ See generally, Harris, DJ, Cases and Materials on International Law (LondonSweet & Maxwell 1991) 493–4.Google Scholar

²⁸ See, eg, ss 5 and 6 of the Legal Practitioners Act. This requires an alien who applies to practise law in Botswana to prove inter alia, that there is a reciprocal law in his country of origin which will allow a Botswana citizen suitably qualified to practice law in that country.Google Scholar

²⁹ See generally Nsereko, DDN, Constitutional Law in Botswana (Gaborone Pula Press 2002), at 538.Google Scholar

³⁰ See Section IV.D. below and Nyamnjoh, FB, ‘Local Attitudes Towards Citizenship and Foreigners in Botswana: An Appraisal of Recent Press Stories’ (unpublished, Department of Sociology Seminar, 13 09 2001).Google Scholar

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³² In several US cases, especially Regents of the University of California v Bakke 438 US 265 (1978) the courts have held that even in the absence of specific provisions endorsing affirmative action, programmes implementing such action are compatible with the equal protection clause of the Fourteenth Amendment or statutory anti-discrimination provisions. Even in international law, Art 1(4) of the International Convention for the Elimination of All Forms of Racial Discrimination, 1966 also supports this conclusion.Google Scholar

³³ See in particular, United States v Paradise 480 US 149 (1987).Google Scholar

³⁴ See, eg, Art 4 of the Convention on the Elimination of All Forms of Discrimination Against Women, and also Andrew, Byrnes, ‘Equality and Discrimination’ in Raymond, Wacks (ed) Human Rights in Hong Kong (OxfordOxford University Press 1992) at 241.Google Scholar

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³⁶ In the US case of Wygant v Jackson Board of Education (1986) 476 US 267,106 S Ct 1842, a collective agreement was struck down as contrary to the 14th Amendment because it gave preferential protection against layoffs to minority employees. The result was however, to largely to undermine the effects of positive action programmes incorporating under-represented workers: such workers were in the ‘last in’ and therefore inevitably the ‘first out’.Google Scholar

³⁷ For example, in the Namibian case of Kauesa v Minister of Home Office (1994) 3 BCLR 1 (NmH), the High Court in construing the affirmative action provision in the Namibian Constitution observed that this provision does not authorize a violation of another person's dignity.Google Scholar

³⁸ The eight are, the Bakgatla, Bakwena, Bamalete, Bamangwato, Bangwaketse, Barolong, Batawana, and Batlokwa, all of who make up almost 90 per cent of the population.Google Scholar

³⁹ MISCA No 377/99 (unreported).Google Scholar

⁴⁰ Ibid, at 58 of the transcript.

⁴¹ See Report of the Presidential Commission of Inquiry into Sections 77, 78, and 79 of the Constitution. Government Printer, Gaborone (2000), at 9.Google Scholar

⁴² Ibid, at 94.

⁴³ Ibid, at, 95.

⁴⁴ See, eg, the Concluding Observations of the Committee on the Elimination of Racial Discrimination Report on Botswana, hereinafter referred to as the CERD Report CERD/61/CO/2 of 23 Aug 2002.Google Scholar

⁴⁵ This is s 15(9), which as an exception to the rule that no law should contain any provision that is discriminatory, excludes laws that were enacted before the coming into operation of the Constitution and which have continued in force since then, like the Tribal Territories Act, which was enacted in 1933.Google Scholar

⁴⁶ For a full discussion of discrimination against women in Botswana, See Human Rights Watch/Africa Human Rights Watch Women's Project, Botswana: Second Class Citizens, vol 6 no 7 (1994).Google Scholar

⁴⁷ See Athaliah Molokomme, , ‘Marriage—What Every Woman Wants or Civil Death?, in Women and Law in South Africa (HarareZimbabwe Publishing House 1987), at 183.Google Scholar

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⁴⁹ The SADC Declaration on Gender and Development calls on Member States to take measures to ensure that women occupy at least 30 per cent of the total decision-making structures.Google Scholar

⁵⁰ See Nsereko, op cit, who at p 270, gives the example of the Ugandan Constitution, which contains provisions on affirmative action and which are designed to ensure that there must be at least ‘one woman representative for every district’.Google Scholar

⁵¹ See generally, US Department of State, Country Reports on Human Rights Practices, 2001, Botswana; and Botswana Council of Churches, Who Was (T)here First. An Assessment of the Human Rights Situation of the Basarwa, Occasional Paper No 10 (1992).Google Scholar

⁵² The CERD Report of 2002 in its point 13 states: ‘The Committee expresses concern at the ongoing dispossession of Basarwa/San people from their land, and about reports stating that their resettlement outside the Central Kalahari Gamer Reserve does not respect their political, economic, social and cultural rights. The Committee draws the attention of the State Party to its General Recommendation XXIII on indigenous peoples, and recommends that no decisions directly relating to the rights and interests of members of indigenous peoples is to be taken without their informed consent. The Committee recommends that negotiations with the Basarwa/San and non-governmental organisations be resumed on this issue, and that a rights-based approach to development be adopted.’Google Scholar

⁵³ See the Botswana Christian Council, Who Was (T)here First. An Assessment of the Human Rights Situation of the Basarwa, op cit, which at pp 22–3 reports of cases of Basarwa who came before Customary Courts, were remanded in custody because they could not understand Setswana.Google Scholar

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⁵⁵ During the 1990s, the Southern Kalahari San claimed extensive rights to a large portion of the Kalahari Gemsbok National Park in South Africa. After a process of protracted negotiations between the South African Government and the San Community, a settlement was arrived at, which recognized the San as a distinct group with rights to a large portion of their traditional land.Google Scholar

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⁶⁰ The Universal Declaration of Human Rights 1948, whose principles are today considered to have become part of customary international law, and the International Covenant on Civil and Political Rights confer the great majority of the rights they enumerate to ‘everyone’. Both the CEDAW and the Convention on the Rights of the Child, to which Botswana is a party, make no distinction between citizens and non-citizens, in the rights they establish. The 1985 UN General Assembly Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which they Live, also sets some standards of practice by states with respect to dealing with aliens.Google Scholar

⁶¹ See Republic of Botswana, Status of the 2002 National Response to the UNGASS Declaration of Commitment on HIV/AIDS. Government of Botswana Country Report, United Nations General Assembly Special Session on HIV/AIDS, Mar 2003, Gaborone (2003), at 13.Google Scholar

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⁶⁵ For some examples of this, see Mhone, Ditsebe, op cit, and Justice Marumo, MB, ‘The Roleof the Judiciary and the Legal Fraternity in Response to the HIV/AIDS Epidemic in Botswana’, and Justice De Villiers, ‘Employment Law and HIV/AIDS in Botswana’, in BONELA, Report, Seminar on Justice, Reason and Hope in the HIV Epidemic in Botswana, 26 Oct 2002, BONELA, Gaborone (2002) 13–14 and 18–24 respectively.Google Scholar

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⁷³ See, Tafa, AB, ‘Right to Sexual Orientation: The Line of the Botswana Government’, in Ditshwanelo, Conference on Human Rights and Democracy, 17–19 Nov 1998, Gaborone, Ditshwanelo, Gaborone (2000) 127–8.Google Scholar

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⁷⁵ Ibid, at 54.

⁷⁶ See Olivier, M, ‘The Reality of being Gay in Botswana’, in Ditshwanelo, Conference on Human Rights and Democracy, at 135.Google Scholar

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⁸² Botswana has an ombudsman who could also perform such functions, but his mandate is presently limited to investigating acts of maladministration. See generally, Fombad, , ‘The Enhancement of Good Governance in Botswana: A Critical Assessment of the Ombudsman Act, 1995’, 27 Journal of Southern African Studies (2001) 57–77.CrossRefGoogle Scholar

⁸³ The South African Human Rights Commission established under s 184 of the Constitution has the task of promoting and protecting the fundamental rights encapsulated in the bill of rights. The Commission may, on its own initiative or upon receipt of a complaint, investigate any alleged violation of a fundamental human right. Besides its supervisory role in relation to human rights, the Commission is authorized to provide financial assistance to complainants and other affected persons to enable them to seek redress for grievances in any appropriate forum.Google Scholar

⁸⁴ See further, Meron, T (ed), Human Rights in International Law: Legal and Policy Issues (OxfordClarendon Press 1984).Google Scholar