Wever

Case Name: Attorney-General v Unity Dow

Court: Court of Appeal of Botswana (Full Bench), 1992

Judges: Amissah P, Aguda JA, Bizos JA, Schreiner JA, Puckrin JA

Facts:

Unity Dow, a Botswana citizen married to a non-citizen (an American), challenged the constitutionality of certain provisions in Botswana's Citizenship Act. The Act allowed children to claim citizenship through their father but not through their mother if the mother was a Botswana citizen and the father was not.

Issue:

Do the provisions of the Citizenship Act that prevent children from obtaining Botswana citizenship through their mother, but allow it through their father, violate the constitutional right to freedom from discrimination?

Holding:

Yes, the provisions are unconstitutional. The denial of citizenship through the mother, but not the father, amounted to unlawful discrimination on the ground of sex.

Reasoning:

• The Constitution's anti-discrimination provisions (Section 15) must be interpreted generously and purposively to protect fundamental rights
• Constitutional rights should be read with the widest possible scope unless there is a clear and express limitation
• The sections of the Citizenship Act violated Section 3 and Section 15 of the Constitution

Significance:

Landmark case establishing that gender discrimination by government is unconstitutional. Set precedent for "generous and purposive" approach to constitutional interpretation, frequently cited in Botswana and other Commonwealth courts.