The Application of Non-Discrimination in Botswana in Light of Attorney-General of Botswana v. Unity Dow: Judicial Approach and Practice*

Abstract

The principle of non-discrimination takes a pivotal position in human rights debate both nationally and internationally. Elaborate provisions in international human rights instruments and national Constitutions recognise this right as one of the most basic guarantees of the individual. This means that national legal systems should create a conducive environment for the enforcement of this right. This article discusses judicial application of the principle of non-discrimination in Botswana. It assesses the extent to which this concept has been implemented in the national law of Botswana in light of the Attorney General of Botswana v. Unity Dow.1 This case does not only outlaw sex-based discrimination in Botswana but it is one of the few judicial decisions in the country in which non-discrimination provisions of the Constitution were extensively analysed. The article also examines the judicial approach to the interpretation of constitutional human rights clauses and the possible influence of the decision within the constitutional order of Botswana and the Southern African region generally. It is argued that the principles enunciated in the case should inform and guide not only the Botswana judiciary but also courts in the region especially the approach adopted by the court in interpreting nondiscrimination clauses of the Constitution.