There are no provisions in the 1982 Citizenship Act of Botswana with respect to the acquisition of Botswana citizenship by marriage to a Motswana woman (Botswana Aug. 1982). However, the following information may be of interest.

The Citizenship Act of Botswana of 31 December 1982 stipulates that a "woman who marries a citizen may be immediately granted citizenship if preceding the date of application she has been a resident for a continuous period amounting to a two and a half years" (US Mar. 2001, 38). However, dual citizenship is not recognized, but

children who acquire the citizenship of a foreign country may maintain their dual citizenship until the age of 21. Upon reaching the age of majority, the person must renounce the foreign citizenship, take an oath of allegiance, and make declaration concerning future residency (United States Mar. 2001).

The citizenship law which was enacted in 1984, entitles the children of a Motswana man married to a foreign woman the rights of citizenship while depriving children of a Motswana woman married to a foreign man the same rights (AI Winter 1999).

In 1990, Unity Dow, a Motswana woman married to a foreigner, challenged the Botswana Citizenship Act "in a landmark lawsuit that ultimately overturned Botswana's Citizenship Act, which restricted the ability of women to transmit nationality to their children" (ibid.). Although the government of Botswana appealed the decision, arguing that "discrimination on the grounds of sex must be permitted in Botswana society as the society is patrilineal and therefore male oriented," in 1992 the Court of Appeal found that section 4 of the Act was "unconstitutional and inconsistent with international human rights standards" (HRW Sept. 1994, 2).

The United Nations Fund for Women (UNIFEM) provides the following clarification about Dow's case:

The Botswana Citizenship Act was passed in 1984. It was intended to bring citizenship law into conformity with Tswana customary law, and this meant that the nationality of a child born on Botswanan soil would be determined exclusively by the father's nationality (regardless of where the parents were married). For almost two decades before this law was enacted, Botswana's constitution had guaranteed that mothers could also pass their nationality on to children born into a marriage, but this part of the constitution was now repealed.

A Botswanan lawyer and activist, Unity Dow, challenged the Citizenship Act in the Botswana High Court in 1990 (Unity Dow v Attorney General). She was married to an American, and two of her three children had been born in Botswana after 1984. These two children required residence permits to stay in the country, could leave the country only on their father's passport, would not be allowed to vote, and would be denied the free university education available to citizens. Dow argued that by ordering this treatment, the Citizenship Act violated the constitution's guarantees of liberty, equal protection of the law, immunity from expulsion, and the right to be free from degrading treatment. She also made the more difficult argument that the Act was discriminatory. The constitution's protection against discrimination said nothing about discrimination on the basis of sex, although it did specifically prohibit other forms of discrimination.

The High Court found that the constitution should be interpreted as prohibiting sex discrimination: "The time that women were treated as chattels 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." (Dow, at 623). The Government had not ratified CEDAW, but it had made other international commitments supporting women's human rights. ...

The Government appealed this decision to Botswana's Court of Appeal, arguing that the constitution was intended to discriminate against women, in order to preserve traditional Tswana values. The Court of Appeal rejected this argument and again referred to Botswana's international commitments to find that the constitution prohibited sex discrimination.

This decision was released in 1992, and it was not immediately clear what practical results would follow. The court had left the Government with the choice of either changing the Citizenship Act, or amending the constitution to explicitly allow sex discrimination. There was speculation in the Botswanan press that the Government would never enforce the Dow decision, as there was not a great deal of public support for reforming the nationality law. In 1993, the Government actually considered holding a referendum on changing the constitution to explicitly permit sex discrimination but abandoned the idea in the face of international and local objections. It was not until 1995, when Botswana was preparing to ratify CEDAW, that the Citizenship Act was finally amended. These changes have been maintained, and the Act is now gender-neutral, giving equal rights to men and women with respect to the citizenship of their children (Nov. 1998).

Additional information on the Dow's case is contained in a 1994 Human Rights Watch publication, "Botswana: Second Class Citizens: Discrimination Against Women Under Botswana's Citizenship Act," available at Documentation Centres.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

Amnesty International. Winter 1999.Tim Ledwith. "The Journey of Unity Dow: Activist Turned Judge Makes Her Mark on Botswana High Court." http://www.amnestyusa.org/feats/unity_dow.html [Accessed 19 June 2003]

Botswana. august 1982. Citizenship Act, 1982. http://www.unhcr.ch/cgi-bin/texis/vtx/rsd [Accessed 24 June 2003]

Human Rights Watch (HRW). September 1994. Human Rights Watch/Africa. Human Rights Watch Women's Project. Vol. 6. No. 7. "Botswana: Second Class Citizen: Discrimination Against Women Under Botswana's Citizenship Act." New York: Human Rights Watch.

United Nations (UN). November 1998. United Nations Development Fund for Women (UNIFEM). "Bringing Equality Home: Implementing the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)." http://www.unifem.undp.org/resources/cedaw/cedaw06.html [Accessed 16 June 2003]

United States (US). March 2001. Office of Personnel Management, Investigations Service. Citizenship Laws of the World. http://www.opm.gov/extra/investigate/IS-01.pdf. [Accessed 19 June 2003]

Africa Confidential

Africa Research Bulletin: Political, Social and Cultural Series

Amnesty International

Botswana, Department of Immigration and Citizenship

Country Reports 1999-2002

High Commission for the Republic of Botswana, Washington, DC

LEXIS/NEXIS

Internet sources, including:

Africa Online

AllAfrica.com

Search engines:

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