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Gender and Land Rights Database

Botswana

Customary norms, religious beliefs and social practices that influence gender-differentiated land rights

- Traditional laws place unmarried women under the guardianship of their fathers and, upon the father’s death, under the guardianship of his heir(s), who is also granted ownership of the assets. Some traditional systems have relaxed this practice and now grant unmarried women legal inheritance rights to varying degrees (19).

- Women married under traditional law, or in common property, are considered legal minors and need their husband’s consent for access to property other than land, access to bank loans and any other legally binding contract (19).

- Parental authority within marriage generally rests with the father of the child. According to traditional law, a child born to an unmarried woman “belongs” to the mother’s family (19).

- Under customary law and in common rural practice, men have the right to chastise their wives. The law does not specifically prohibit violence against women, including domestic violence which remains widespread (6).

- Polygamy is legal under traditional law with the consent of the first wife, but it is rarely practiced (6).

Traditional authorities and customary institutions

Chiefs of the respective areas administered customary land. The chiefs’ duties were to allocate land, imposing restrictions on the use of land and authorizing changes of land use, and to hear land disputes and appeals.
The Tribal Land Act of 1968 transferred all the powers that had vested in the Chief in relation to land to the Land Boards (23).

Inheritance/succession de facto practices

- The surviving spouse automatically assumes sole ownership of the family property. However, when a man dies, the eldest son, if mature, assumes his father’s position as head of the family. When a man dies before marriage or without a male issue, his property, if any, is inherited by his father, brother, paternal uncle or any other male relative.

- When both parents are deceased or if the widow chooses to divide the estate of the deceased spouse, the type and amount of property each child is entitled to inherit is dictated by the child’s sex and position in the family. The largest share of the deceased man’s estate goes to the eldest son or principal heir on the assumption that he would look after his siblings. Daughters receive smaller shares than sons on the premise that female siblings would get married and become someone else’s concern. The youngest son inherits the homestead and the family ploughing fields as well (18).

Discrepancies/gaps between statutory and customary laws

The Constitution forbids discrimination on the basis of ethnicity, race, nationality, creed, sex or social status. However, neither the Constitution nor other laws prohibit discrimination by private persons or entities (6).

Sources: numbers in brackets (*) refer to sources displayed in the Bibliography