Botswana -- Attorney-General v. Dow, Appeal Court, 1994 (6) BCLR 1 (locus standi)

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Attorney-General v Dow
Court of appeal, Botswana, 3 July 1992

Amissah JP
This appeal is brought by the Attorney-General against the judgment given by Horwitz AJ in favor of Unity Dow in her claim that her constitutional rights had been infringed by certain specified provisions of the Citizenship Act 1984.

The facts of the case which gave cause for the respondent`s complaint were well summarized by the learned judge a quo, and for convenience and with due apologies I will repeat that summary. As he said:
The Applicant Unity Dow is a citizen of Botswana having been born in Botswana of parents who are members of one of the indigenous tribes of Botswana. She is married to Peter Nathan Dow who although he has been in residence in Botswana for nearly 14 years is not a citizen of Botswana but a citizen of the United States of America.
Prior to their marriage on 7 March 1984 a child was born to them on 29 October, 1979 named Cheshe Maitumelo Dow and after the marriage two more children were born Tumisang Tad Dow born on 26 March 1985 and Natasha Selemo Dow born on 26 November 1987.
She states further in her founding affidavit that "my family and I have established our home in Raserura Ward in Mochudi and all the children regard that place and no other as their home.
In terms of the laws in force prior to the Citizenship Act of 1984 the daughter born before the marriage is a Botswana citizen and therefore a Motswana, whereas in terms of the Citizenship Act of 1984 the children born during the marriage are not citizens of Botswana (although children of the same parents), and are therefore aliens in the land of their birth.

The respondent claimed that the provisions of the Citizenship Act of 1984 which denied citizenship to her two younger children were sections 4, 5. Those sections read as follows:
4(1) A person born in Botswana shall be a citizen of Botswana by birth and descent if, at the time of his birth:- (a) his father was a citizen of Botswana; or (b) in the case of a person born out of wedlock, his mother was a citizen of Botswana. (2) A person born before the commencement of this Act shall not be a citizen by virtue of this section unless he was a citizen at the time of such commencement.
5(1) A person born outside Botswana shall be a citizen of Botswana by descent if, at the time of his birth: (a) his father was a citizen of Botswana; (b) in the case of a person born out of wedlock, his mother was a citizen of Botswana. (2) A person born before the commencement of this Act shall not be a citizen by virtue of this section unless he was a citizen at the time of such commencement.

I should hereby add that the respondent`s case before the court a quo also embraced discriminatory treatment which she claimed the Act gave to alien men married to Botswana women on the one hand and alien women married to Botswana men on the other. The section of the Citizenship Act of 1984 which, according to the respondent, perpetrated this distinction was section 15. But as the judgment of the court a quo did not refer to that aspect of the case in its determination of the injustice suffered by the respondent from the Citizenship Act, I shall refrain from going further into that aspect of the case.

The case which the respondent sought to establish and which was accepted by the Court a quo was captured by paragraphs 13 to 15, and paragraphs 18, 19, 21 and 22 of her founding affidavit. They read as follows:
13. I am prejudiced by the section 4(1) of the Citizenship Act by reason of my being female from passing citizenship to my two children Tumisang and Natasha.
14. I am precluded by the discriminatory effect of the said law in that my said children are aliens in the land of mine and their birth and thus enjoy limited rights and legal protections.
15. I verily believe that the discriminatory effect of the said sections, (4 and 5 supra) offend against section 3(a) of the Constitution of the Republic of Botswana.
18. I am desirous of being afforded the same protection of the law as a male Botswana citizen and in this regard I am desirous that my children be accorded with Botswana citizenship...
19. As set out above, I verily believe and state that the provisions of section 3 of the Constitution, have been contravened in relation to myself.
21. As a citizen of the Republic of Botswana, I am guaranteed under the Constitution, immunity from expulsion from Botswana and verily believe that such immunity is interfered with and limited by the practical implications of sections 4, 5, and 13 of the said Citizenship Act.
22. I verily believe that the provisions of the Constitution have been contravened in relation to myself.

The sections of the Constitution of the Republic which the respondent prayed in aid in this regard, therefore, are sections 3 and 14. Section 3 is the section which deals with the fundamental rights and freedoms of the individual. Section 14 deals with the protection of the freedom of movement. I shall have occasion to recite them and to refer to them in some detail in the course of this judgment.

After hearing the respondent, then the applicant in the case, and the Attorney General in opposition, the learned judge a quo found in favor of the former. The relevant parts of his judgment are as follows:
I therefore find that section 4 [of the Citizenship Act] is discriminatory in its effect on women in that, as a matter of policy,
(i) It may compel them to live and bear children outside of wedlock.
(ii) Since her children are only entitled to remain in Botswana if they are in possession of a residence permit and since they are not granted permits in their own right, their right to remain in Botswana is dependent upon their forming part of their father`s residence permit.
(iii) The residence permits are granted for no more than two years at a time, and if the applicant`s husbands permit were not renewed both he and applicant`s minor children would be obliged to leave Botswana.
(iv) In addition applicant is jointly responsible with her husband for the education of their children. Citizens of Botswana qualify for financial assistance in the form of bursaries to meet the costs of University education. This is a benefit which is not available to a non-citizen. In the result the applicant is financially prejudiced by the fact that her children are not Botswana citizens.
(v) Since the children would be obliged to travel on their father`s passport the applicant will not be entitled to return to Botswana with her children in the absence of their father.

What I have set out at length may inhibit women in Botswana from marrying the man whom they love. It is no answer to say that there are laws against marrying close blood relatives - that is a reasonable exclusion... It seems to me that the effect of section 4 is to punish a female citizen for marrying a non-citizen male. For this she is put in the unfavorable position in which she finds herself vis-à-vis her children and her country. The fact that according to the Citizenship Act a child born to a marriage between a citizen female and a non-citizen male follows the citizenship of the father [may] not in fact have that result. It depends on the law of the foreign country. The result may be that the child may be rendered stateless unless its parents emigrate. If they are forced to emigrate then the unfortunate consequences which I have set out earlier in this judgment may ensue. I therefore come to the conclusion that the application succeeds. I have also come to the conclusion that section 5 of the Act must join the fate of section 4.

The appellant has appealed against this decision on several grounds. He complains that the Court a quo erred in holding that the applicant had sufficiently shown that any of the provisions of sections 3-16 (inclusive) of the Constitution had been, was being, or was likely to be contravened in relation to her by reason of the provisions of section 4 or section 5 of the Citizenship Act so as to confer on her locus standi to apply to the High Court for redress pursuant to section 18 of the Constitution. After holding that the provisions of the Constitution should be given a "generous interpretation", the Court a quo erred in failing to give any or any adequate effect to other principles of construction, in particular, the principle that an Act of the National Assembly must be presumed to be infra vires the Constitution: the principle that an Act or instrument, including the Constitution should be construed as a whole; and with regard to section 15 (3) of the Constitution, the principle of "inclusio unius exclusio alterius", to which effect is given in section 33 of the Interpretation Act. The Court a quo also erred, in that instead of holding that the word "sex" had been intentionally omitted from section 15 (3) of the Constitution so as to accommodate, subject to the fundamental rights protected by section 3 thereof, the patrilineal structure of Botswana society, in terms of the common law, the customary law, and statute law, it held that section 15 (3) of the Constitution merely listed examples of different grounds of discrimination and was to be interpreted as including discrimination on the grounds of "sex", and that section 4 and/or section 5 of the Citizenship Act denied to the respondent by reason of sex her rights under the Constitution. The rights mentioned in the appellant`s grounds of his appeal being the respondent`s: her right to liberty and/or her right to the protection of the law under section 3 of the Constitution, her right to freedom of movement and immunity from expulsion from Botswana under section 14 of the Constitution, and her protection from subjection to degrading punishment or treatment under section 7 of the Constitution. According to the complaint neither section 4 nor section 5 in fact denied the respondent any of the rights and protections mentioned. Further, the complaint went on, the Court a quo, having extended the definition of discrimination in section 15 (3) of the Constitution, also erred in failing to consider and apply the limitations to the rights and freedoms protected by section 15 of the Constitution which are contained in sub-section 4 (c) (the law of citizenship being a branch of personal law), sub-section (4) (e) and sub-section (9) (to the extent that the Citizenship Act re-enacts prior laws), or to avert its mind to the special nature of citizenship legislation, and the fact that citizenship was not a right protected under Chapter II of the Constitution, nor was any right "to pass on citizenship" there created or protected. Finally, the complaint stated, the Court a quo erred in holding that section 4 and section 5 of the Citizenship Act were discriminatory in their effect or contravened section 15 of the Constitution.

Argument was offered before us on most of the grounds stated above, but rearranged to follow a somewhat different format. Apart from the locus standi point, the basic question was whether upon a proper interpretation of Chapter II of the Constitution, the Chapter on fundamental rights and freedoms of the individual, especially sections 3, 14, 15 and 18, the constitutional right which the respondent claimed to have been infringed had actually not been infringed with respect to her by sections 4 or 5 of the Citizenship Act of 1984. The other submissions were formulated as argument around that central theme.
It will be recalled from her founding affidavit which has been recited above that the respondent complained in the court below that she was prejudiced by section 4(1) of the Citizenship Act by reason of her being female from passing citizenship to her two children Tumisang and Natasha; that the law in question had discriminatory effect in that her children named were aliens in her own land and the land of their birth, and they thus enjoyed limited rights and legal protections therein; that she believed that the discriminatory effect of specified sections of the Citizenship Act offended against section 3 (a) of the Constitution; and that she believed that the provisions of section 3 of the Constitution had been contravened in relation to herself.

We are here faced with some difficult questions of constitutional interpretation. But our problems are to some extent eased by the fact that not all matters for our consideration were in dispute between the parties: neither party maintained that the Constitution had to be construed narrowly or restrictively. Both parties agreed that a generous approach had to be taken in Constitutional interpretation. Both sides also agreed that section 3 of the Constitution was a substantive section conferring rights on the individual. This, in my view, put an end to any argument about whether the section was a preamble or not. It also, in my view, totally undermines any judgement based on the premise that section 3 is only a preamble. The sections of the Constitution which arose for construction were also, more or less, agreed.

With regard to the approach to the interpretation of the Constitution, learned counsel for the appellant further drew our attention to the Interpretation Act of 1984 (Cap. 01:01) which in section 26 provides that:
Every enactment shall be deemed remedial and for the public good and shall receive such fair and liberal construction as will best attain its object according to its true intent and spirit.

He then submitted that by section 2 of the Act, each provision of the Act applied to every enactment, whether made before, on or after the commencement of the Act, including the Constitution. This section, he submitted, therefore, must be the section which has to be applied to the present case. I agree that the provisions of the Interpretation Act apply to the interpretation of the Constitution. The section cited, however, is not inconsistent with viewing the Constitution as a special enactment which in many ways differs from the ordinary legislation designed, for example, to establish some public utility or to remedy some identified defect in the body politic.

A written constitution is the legislation or compact which establishes the state itself. It paints in broad strokes on a large canvas the institutions of that state; allocating powers, defining relationships between such institutions and between the institutions and the people within the jurisdiction of the state, and between the people themselves. A constitution often provides for the protection of the rights and freedoms of the people, which rights and freedoms have thus to be respected in all further state action. The existence and powers of the institutions of state, therefore, depend on its terms. The rights and freedoms, where given by it, also depend on it. No institution can claim to be above the constitution; no person can make any such claim. The constitution contains not only the design and disposition of the powers of the state which is being established but embodies the hopes and aspirations of the people. It is a document of immense dimensions, portraying, as it does, the vision of the peoples` future. The makers of a constitution do not intend that it be amended as often as other legislation; indeed, it is not unusual for provisions of the constitution to be made amendable only by special procedures imposing more difficult forms and heavier majorities of the members of the legislature. By nature and definition, even when using ordinary prescriptions of statutory construction, it is impossible to consider a constitution of this nature on the same footing as any other legislation passed by a legislature which is itself established, with powers circumscribed, by the constitution. The object it is designed to achieve evolves with the evolving development and aspirations of its people. In terms of the Interpretation Act, the remedial objective is to chart a future for the people, a liberal interpretation of that objective brings into focus considerations which cannot apply to ordinary legislation designed to fit a specific situation. As Lord Wright put it when dealing with the Australian case of James v Commonwealth of Australia (1936) AC 578 at page 614:
It is true that a Constitution must not be construed in any narrow and pedantic sense. The words used are necessarily general, and their full import and true meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning.

We in this Court, however, are not bereft of previous authority of our own to guide us in our deliberations on the meaning of the Botswana Constitution. The present case does not present us with a first opportunity to explore unchartered waters and to interpret the Constitution free from all judicial authority. We do have some guidance form previous pronouncements of this Court as to the approach which we should follow in this matter.

In Attorney-General v Magi 1981 BLR 1 at page 32, Kentridge JA said:
a constitution such as the Constitution of Botswana, embodying fundamental rights, should as far as its language permits be given a broad constriction. Constitutional rights conferred without express limitation should not be cut down by reading implicit restrictions into them, so as to bring them into line with the common law.

In Petrus and Another v The State (1984) BLR 14, my brother, Aguda JA had occasion to review the courts` approach to constitutional construction. In that review, he said at page 34:
It was once thought that there should he no difference in approach to constitutional construction from other statutory interpretation. Given the British system of Government and the British judicial set-up, that was understandable, it being remembered that whatever statutes that might have the look of constitutional enactment in Britain, such statutes are nevertheless mere statutes like any others and can be amended or repealed at the will of Parliament. But the position where there is a written Constitution is different.

Aguda JA then cited in support, the view of Higgins J in the Australian High Court in Attorney-General for New South Wales v Brewery Employees Union of New South Wales (1908) 6 CLR 469 at pp 611-612, that:
...although we interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting - to remember that it is a Constitution a mechanism under which laws are to be made and not a mere Act which declares what the law is to be.

He also cited Sir Udo Udoma of the Supreme Court of Nigeria in Rain Rabin v The State (1981) 2 NCLR 293 ATP 326 where that learned judge said:
...the Supreme Law of the Land; that it is a written, organic instrument meant to serve not only the present generation, but also several generations yet unborn... that the function of the Constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities, must involve, ours being a plural, dynamic society, and therefore, more technical rules of interpretation of statues are to some extent inadmissible in a way as to defeat the principles of government enshrined in the Constitution.

Finally, he cited Justice White of the Supreme Court of the United States in South Dakota v North Carolina (1940) 192 US 268; 48 ED 448 at p 465, where the learned judge said:
I take it to be an elementary rule of constitutional construction that no one provision of the Constitution is to be segregated from all the others, and to be considered alone but that all the provisions bearing upon a particular subject are to be brought into view and to he so interpreted as to effectuate the great purpose of the instrument.

Aguda JA concludes his review in the Petrus Case by saying:
...it is another well known principles of construction that exceptions contained in constitutions are ordinarily to be given strict and narrow, rather than broad constructions. Corey v Knight (1957) Cal App 2d 671; 310 p 2d 673 at p 679.

With such pronouncements from our own Court as guide, we do not really need to seek outside support for the views we express. But just to show that we are not alone in the approach we have adopted in this country towards constitutional interpretation, I refer to similar dicta of judges from various jurisdictions such as Wilberforce in Minister of Home Affairs (Bermuda) and Another v Fisher and Another [1980) AC 319 al pages 328 to 329; Dicksen CJ in the Canadian case of R v Big M Drug Mart Ltd (1985) 1 SCR 295 at page 344 the Namibian case of Mwondingi v Minister of Defence, Namibia 1991 (1) SA 851 (run) at 8576 -858B; and the Zimbabwe cases of Hewlett v Minister of Finance and Another 1982 (1) SA 490(c) at 495D-496E and Ministry of Home Affairs v Bickle and Others 1984 (2) SA 439 per Georges CJ at page 447; United States cases such as Boyd v United States I 16 US 616 at 635 and Trop v Dunes 356 US 86.

In my view, these statements of learned judges who have had occasion to grapple with the problem of constitutional interpretation capture the spirit of the document they had to interpret, and I find them apposite in considering the provisions of the Botswana Constitution which we are now asked to construe. The lessons they teach are that the very nature of a constitution requires that a broad and generous approach be adopted in the interpretation of its provisions; that all the relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the constitution; and that where rights and freedoms are conferred on persons by the constitution, derogations from such rights and freedoms should be narrowly or strictly construed.

It is now necessary to examine the constitutional provisions giving rise to the dispute in this case. Section 3 states that:
3. Whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin„ political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and the public interest to each and all the following freedoms, namely:
(a) life, liberty, security of the person and the protection of the law;
(b) freedom of conscience, of expression and of assembly and association; and
(c) protection for the privacy of his home and other property and from deprivation of property without compensation, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, as being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."

The first impression gained from the opening ‘whereas’ is that section 3 is a preamble. If it were so, different consequences might arise from it when compared with the consequences arising from it being a substantive provision conferring rights on the individual. In section 272 of Bennion on Statutory Interpretation the effect of a preamble is given as follows:
The preamble is an optional feature in public general Acts, though compulsory in private Acts. It appears immediately after the long title, and states the reason for passing the Act. It may include a recital of the mischief towards which the Act is directed. When present, it is thus a useful guide to the legislative intention.

Obviously section 3 is not a preamble to the whole of the Constitution. An argument made that it is a preamble, therefore would have to limit its operative effect as such, if any, to Chapter II on the Protection of Fundamental Rights and Freedoms of the Individual. Were it a preamble, it would have to be taken as a guide to the intention of the framers of the Constitution in enacting the provisions of that chapter.

A careful look at the section, however, shows that it was not intended merely as a preamble indicating the legislative intent for the provisions of chapter 2 at all. The internal evidence from the structure of the section is against such an interpretation. Although the section begins with ‘whereas’, it accepts that ‘every person in Botswana is entitled to the fundamental rights and freedoms of the individual, . . . whatever his race, place of origin, political opinions, colour, creed or sex’ is, and continues to enact positively that ‘the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms (that is, the rights and freedoms itemised in (a), (b) and (c) of section 3), subject to such limitations as are contained in those provisions (that is, the provisions in the whole of Chapter 2), being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest’. That positively enacted part of section 3 alone should be sufficient to refute a suggestion that it is a mere preamble. But section 18(1) of the Constitution which finds itself in the same Chapter 2 put the matter beyond doubt. It provides that:
Subject to the provisions of subsection (5) of this section, if any person alleges that any of the provisions of sections 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.

If a preamble confers no right but merely provides an aid to the discovery of legislative intention, it is impossible to hold otherwise than that from section 18(1), it is clear that contravention of section 3 leads to enforcement by legal action.

From the wording of section 3, it seems to me that the section is not only a substantive provision, but that it is the key or umbrella provision in chapter 2 under which all rights and freedoms protected under that chapter must be subsumed. Under the section, every person is entitled to the stated fundamental rights and freedoms. Those rights and freedoms are subject to limitations only on two grounds, that is to say, in the first place, ‘limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others’, and secondly on the ground of ‘public interest’. Those limitations are provided in the provisions of chapter 2 itself, which is constituted by sections 3 (but effectively, section 4) to 19, of the Constitution.

The argument has been advanced that even if rights and freedoms are conferred by section 3, that section makes no mention of discrimination, and therefore, that section does not deal with the question of discrimination at all. Discrimination is mentioned only in section 15 of the Constitution; it is, therefore, that section only which we ought to look at in a case which basically alleges discrimination. But that argument assumes that section 15 is an independent section standing alone in chapter 2 of the Constitution. It is only if section 15 is considered as standing on its own, separate and distinct, and conferring new rights unconnected with the rights and freedoms stated in section 3 that it can be said that section 15 has no connection with section 3. As I have tried to demonstrate by the examination of the wording used in section 3, that assumption cannot be right. The wording is such that the rest of the provisions of chapter 2, other than those dealing with derogations under the general powers exercisable in times of war and emergency in sections 17 and 18, and the interpretation section 19 of the Constitution, have to be read in conjunction with section 3. They must be construed as expanding on or placing limitations on section 3, and be construed within the context of that section. As pointed out before, the wording of section 3 itself shows clearly that whatever exposition, elaboration or limitation is found in sections 4 to 19, must be exposition, elaboration or limitation of the basic fundamental rights and freedoms conferred by section 3. Section 3 encapsulates the sum total of the individual’s rights and freedoms under the Constitution in general terms, which may be expanded upon in the expository, elaborating and limiting sections ensuing in the Chapter. We are reminded of the lesson that all the provisions of a constitution which have a bearing on a particular interpretation have to be read together. If that is the case then section 15 cannot be taken in isolation as requiring separate treatment from the other relevant provisions of chapter 2, or indeed from those of the rest, of the Constitution.

Support is given to this view by a look at other provisions of chapter 2. A number of rights and freedoms dealt with in section 3 are not specifically referred to in the express terms in which they are later dealt with in the succeeding sections of chapter 2.

Take, for example, section 6 of chapter 2 which details the protection against slavery, servitude or forced labour. Section 3 does not specifically mention the words ‘slavery’, ‘servitude’ or ‘forced labour’. But clearly these words can, and in the structure of the Constitution must, be subsumed under some general expression or term in section 3. That section confers the right and freedom to ‘liberty’ and ‘security of the person’. A person who is put in slavery or servitude or made to do forced labour cannot be said to enjoy a right to liberty or security of his person. Infringing section 6 will automatically infringe section 3. Take section 7 of the same chapter 2 which gives protection against torture or inhuman or degrading treatment. Section 3 does not specifically mention ‘torture’, ‘inhuman treatment’ or ‘degrading treatment’. But section 3(a) confers the right to ‘life, liberty, security of the person and the protection of the law’. It would be strange to propound the argument that a person who has been subjected to torture, inhuman or degrading treatment has only his right under section 7 infringed, but that his right to life, liberty, security of the person and the protection of the law remains intact because torture, inhuman or degrading treatment are not specifically mentioned in section 3. The same applies to section 14 which deals with freedom of movement. Again freedom of movement is not mentioned in section 3 although the person deprived of such freedom cannot be said to be enjoying his ‘liberty’ or ‘security of the person’ which are mentioned in section 3.

The United States constitution makes no specific reference to discrimination as such. Yet several statutes have been held to be in contravention of the Constitution on the ground of discrimination. These cases have been decided on the basis of the 14th Amendment of the Constitution passed in 1868 which forbids any state to ‘deny to any person within its jurisdiction the equal protection of the laws’ (see, for example, Reed v Reed 404 US 71; Craig v Boren, Governor of Oklahoma, et al 429 US 190; Abdiel Caba v Kazim Mohammend and Maria Mohammend 441 US 380) or on the equally wide due process clause in the 5th Amendment passed in 1791 (for example, Frontiero v Richardson, Secretary of Defence 411 US 677; Weinberger, Secretary of Health, Education and Welfare v Wiesenfeld 420 US 636), or sometimes on both Amendments.

In Botswana, when the Constitution, in section 3, provides that ‘every person . . . is entitled to the fundamental rights and freedoms of the individual’, and counts among these rights and freedoms ‘the protection of the law’, that fact must mean that, with all enjoying the rights and freedoms, the protection of the law given by the Constitution must be equal protection. Indeed, the appellant generously agreed that the provision in section 3 should be taken as conferring equal protection of the law on individuals. I see section 3 in that same light. That the word ‘discrimination’ is not mentioned in section 3, therefore, does not mean that discrimination, in the sense of unequal treatment, is not proscribed under the section.

I also conclude from the foregoing that the fact that discrimination is not mentioned in section 3, does not detract from section 3 being the key or umbrella provision conferring rights and freedoms under the Constitution under and in relation to which the other sections in chapter 2 merely expound further, elaborate or limit those rights and freedoms. Section 15, which specifically mentions and deals with discrimination, therefore does not, in my view, confer an independent right standing on its own.

One other possible argument may be advanced against section 3 as the section of the Constitution conferring rights and freedoms: it arises from the question whether the proposition can seriously be maintained that the section gives the same right to every person in Botswana. What, it may be asked in this connection, about children? Do they have the same rights and freedoms as adults? What about aliens? Can they claim the same rights and freedoms as citizens? The answer to both questions is, while under the jurisdiction of the State of Botswana, yes. But subject to whatever derogations or limitations may have been placed by specific provisions of the Constitution with respect to them. With regard to a child, section 5 which gives protection against deprivation of personal liberty, for example, makes in subsection 1(f) an exception by restrictions imposed on him ‘with the consent of his parent or guardian, for his education or welfare during any period ending not later than the date when he attains the age of eighteen years’. Section 10(11)(b) places a limitation on the right of persons under the age of eighteen to free access to proceedings in court. The qualifications for the office of President (section 33) places a minimum age of thirty five on the capacity to be elected President, and a minimum age limit of twenty-one years is placed on the capacity for election of a member of Parliament. These are all limitations to his freedoms under the Constitution.

Aliens, on the other hand, have their rights and freedoms curtailed by, for example, section 14(3)(b) which permits the imposition of restrictions on the freedom of movement of any person who is not a citizen of Botswana; and by section 15(4)(b) which permits discrimination ‘with respect to persons who are not citizens of Botswana’.
Where other derogations or limitations are made to the general rights and freedoms conferred by section 3 of the Constitution, they are made in sections 4 to 16 or through specific provisions of the Constitution which are inconsistent with the rights or freedoms conferred.

If my reading of sections 3 to 16 of the Constitution is correct, and if section 3 provides, as I think, equal treatment to all save in so far as derogated from or limited by other sections, the question in this particular case is whether and how section 15 derogates from the rights and freedoms conferred by section 3(a) which requires equal protection of the law to all persons irrespective of sex.

The case made for the appellant in this respect is, to put it succinctly, that section 15 is the section of the Constitution which deals with discrimination; that, significantly, whereas section 3 confers rights and freedoms irrespective of sex, the word ‘sex’ is not mentioned among the identified categories in the definition of ‘discriminatory’ treatment in section 15(3); that the omission of sex is intentional and is made in order to permit legislation in Botswana which is discriminatory on grounds of sex; that discrimination on grounds of sex must be permitted in Botswana society as the society is patrilineal and, therefore, male oriented. The appellant accepts that the Citizenship Act 1984 is discriminatory, but this was intentionally made so in order to preserve the male orientation of the society; that Act, though discriminatory, was not actually intended to be so, its real objective being to promote the male orientation of society and to avoid dual citizenship, the medium for achieving these ends being to make citizenship follow the descent of the child; and that even if the act were as a result discriminatory, it was not unconstitutional.

Before I attempt to answer the question whether any of the sections of the Citizenship Act infringes the rights and freedoms conferred by section 3(a), as the respondent has complained that they do, it is necessary that one or two incidental matters put forward in support of the central theme described be disposed of. It was submitted by the appellant that Parliament could enact any law for the peace, order and good government of Botswana, and that the Citizenship Act was a law based on descent which was required to ensure that the male orientation imperative of Botswana society and the need to avoid dual citizenship be advanced. There is no doubt that the Citizenship Act is an Act of Parliament. I also accept that an Act of Parliament is presumed to be intra vires the Constitution. But it must be added that that presumption is not irrebutable. The power of Parliament to legislate in the terms propounded is found in section 86 of the Constitution. It is a provision which, I daresay, is found in the constitutions of all former colonies and protectorates of Britain, and which gives the legislature the amplitude of power to legislate on all matters necessary for the proper governance of a country. In Britain, the power of Parliament to legislate is uncircumscribed. The fact was what led Philip Herbert, fourth Earl of Pembroke and Montgomery, in a speech at Oxford on April 11, 1648 to say that, “My father said, that a Parliament could do anything but make a man a woman, and a woman a man”.

But as we know, when in the 19th Century Kay LJ gave a property and mathematical rendition of the same sentiment by saying in Metropolitan Railway Co v Fowler (1892) 1 OB 165 at 183, that, ‘Even an Act of Parliament cannot make a freehold estate in land an easement, any more than it could make two plus two equal five.’ Scrutton LJ in Taff Vale Railway Co v Cardiff Railway Co (1917) 1 Ch 199 at 317 countered by saying, ‘I respectfully disagree with him, and think that ‘for the purposes of the Act’ it can effect both statutory results.’ (See Megarry A Second Miscellany-at-Law.)

Scrutton LJ’s statement is correct because Britain does not live under a written constitution; no piece of legislation by Parliament has primacy over others and Parliament cannot legislate to bind future Parliaments. We, therefore, speak of the supremacy of Parliament in Britain. What the British Parliament has done or is capable of doing is no sure guide to us trying to understand a written constitution. The American revolution which started off the era of written constitutions changed all that. With a written constitution, under which the existence and powers of the legislature are made dependent on the constitution, the power to legislate is circumscribed by the constitution. As section 86 of the Botswana Constitution put it, the power of parliament ‘to make laws for the peace, order and good government of Botswana’, is ‘subject to the provisions of the Constitution’. Parliament cannot, therefore, legislate to take away or restrict the fundamental rights and freedoms of the individual, unless it is on a subject on which the Constitution has made an exception by giving Parliament power to do so, or the Constitution itself is properly amended. Instead of the supremacy of Parliament, we have, if anything, the supremacy of the Constitution.

As the legislative powers of Parliament in Botswana are limited by the provisions of the Constitution, where the Constitution lays down matters on which Parliament cannot legislate in ordinary form, as it does in chapter 2, for example, or guarantees to the people certain rights and freedoms, Parliament has no power to legislate by its normal procedures in contravention or derogation of these prescriptions. This view of a constitution is, of course, contrary to the law and practice of the British Constitution under which the normal canons of construction of Acts of Parliament are formulated.

Our attention has been drawn to the patrilineal customs and traditions of the Botswana people to show, I believe, that it was proper for Parliament to legislate to preserve or advance such customs and traditions. Custom and tradition have never been static. Even then, they have always yielded to express legislation. Custom and tradition must a fortiori, and from what I have already said about the pre-eminence of the Constitution, yield to the Constitution of Botswana. A constitutional guarantee cannot be overridden by custom. Of course, the custom will as far as possible be read so as to conform with the Constitution. But where this is impossible, it is custom not the Constitution which must go.

In this connection a document entitled Report of the Law Reform Committee on: (i) Marriage Act (ii) Law of Inheritance (iii) Electoral Law and (iv) Citizenship Law was put before us for our consideration. The report apparently covered the activities of the Committee from June to December 1986, and was laid before parliament in March 1989. The Committee had, apparently, gone round the country finding out the reaction of the people to the laws named. The authority for placing the report before us was said to be section 24(1) of the Interpretation Act which provides that:
24(1) For the purpose of ascertaining that which an enactment was made to correct and as an aid to the construction of the enactment a court may have regard to any textbook or other work of reference, to the report of any commission of enquiry into the state of the law, to any memorandum published by authority in reference to the enactment or to the Bill for the enactment, to any relevant international treaty, agreement or convention and to any papers laid before the National Assembly in reference to the enactment or to its subject matter, but not to the debates in the Assembly.
The object of putting the report before us was, presumably, to demonstrate that the majority of the people whose views were collected wanted or agreed to the differentiation or discrimination made between men and women under the Citizenship Act. It is noticed, however, from the report itself that the expression of the people was made in the form of answers to questions. The manner in which those questions were put does not appear in the report. Neither do we know the explanations made to the people before they came out with the recorded answers. There is nowhere in the report where a reference is made to the fact that the provisions of the Citizenship Act, at least, may possibly be affected by the Constitution. For this reason, the report loses much of its value as an expression of the people after all relevant facts and considerations had been placed before them.

Besides, the report is a document prepared some years after both the Constitution and Citizenship Act were passed. The Constitution was promulgated in 1966. The Act was passed in 1984. The activities of the Committee resulting in the report were in 1986, and the document was laid before Parliament in 1989. I must say that with the interpretation of the provisions of the Citizenship Act I have no difficulty whatsoever. Its provisions are clear. What difficulty I have is in respect to the Constitution which we are trying to unravel in this case, not the Citizenship Act, I would have derived some value from the report if the activities of the Committee leading to it had been before, not after, the Constitution was promulgated. For then, I would have got some indication of what the people of Botswana thought was the overriding characteristic of their society which should not be altered by any rights or freedoms to individuals conferred by the Constitution. That would have given me some assistance, other defects aside for the moment, in determining the intention of the framers of the Constitution in enacting the fundamental rights and freedoms chapter. But that is not the case here. Even if, therefore, the report qualifies under section 24(1) under “any papers laid before the national assembly in reference to the enactment or to its subject matter”, I do not think it in any way aids my efforts at interpreting the Constitution, which is the question at hand, or whether provisions of the Citizenship Act, which to me are quite clear, infringe the Constitution.

It seems to me that the argument of the appellant was to some extent influenced by a premise that citizenship must necessarily follow the customary or traditional systems of the people. I do not think that view is supported by the development of the law relating to citizenship. Botswana as a sovereign republic dates from 30 September 1966. Before then persons who were within the territorial area which is now Botswana acquired their citizenship under British laws. The law of citizenship in Britain is now governed by legislation. But the development of the concept of citizenship, like most other political concepts, dates as far back as from ancient Greece. Walker in The Oxford Companion to Law describes citizenship as
The legal link between an individual and a particular state or political community under which the individual receives certain rights, privileges, and protections in return for allegiance and duties. Whether an individual has citizenship of a particular state depends on its own legal system and by reason of differences between legal systems some individuals may be stateless and others have citizenship of more than one state.
In ancient Athens only some of the population were citizens; resident aliens, women, and slaves were excluded. The Romans similarly initially had a restricted concept of citizenship, but gradually extended it until in AD 212. Caracalla’s Constitutio Antoniana gave citizenship to most of the freemen of the Empire. The concept was in abeyance in the middle ages until city dwellers became a third force in politics, with the nobles and clergy. Citizenship was the relationship to a city implying certain liberties. The American and French Revolutions gave a new meaning to citizenship, contrasting it with ‘subject’, while in the twentieth century the movement for women’s rights has further extended the concept.
In modern practice what rights and duties attach to citizenship depends on the municipal law of each state.

Mr Justice Gray of the American Supreme Court in United States v Wong Ark 169 US, 18 Sup Ct 456, 42 L Ed 890 (1898) saw the development of the law on citizenship in the following terms
II The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called ‘legality’, ‘obedience’, ‘faith’, or ‘power’, of the King. The principle embraced all persons born within the king’s allegiance and subject to his protection. .
It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction, of the English sovereign; and therefore every child born in England of alien parents was a natural born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.
III The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.

That must also have been the position with Botswana until independence. All who were born within the protection or jurisdiction of the sovereign power became citizens by birth. That, however, is not claimed to have interfered with the male orientation of Botswana customary society.

The old classic, Oppenheim on International Law volume 1 (Peace) (8ed 1955) gives the international law aspect of the matter. At 645, it makes the following distinction:
‘Nationality’ in the sense of citizenship of a certain state, must not be confused with ‘nationality’ as meaning membership of a certain nation in the sense of race. Thus, according to international law, Englishmen and Scotsmen are, despite their different nationality as regards race, all of British nationality as regards their citizenship. Thus further, although all Polish individuals are of Polish nationality qua race, for many generations there were no Poles qua citizenship.

By this, I understand that Botswana nationality in the sense of the identity of the Batswana people, which like the Poles would be a matter of descent, need not be the same as Botswana nationality in the sense of citizenship. Although it is possible that citizenship should by municipal law be based on descent or guardianship, there is no historical reason for compelling any state to so base its citizenship laws, especially where there is some serious obstacle like a constitutional guarantee in the way. Even in Britain, where until the Guardianship Act of 1973, all parental rights, including guardianship, were vested in the father, unless the child was born out of wedlock, nationality was not based on descent or guardianship. I find, therefore, no necessary nexus mandating that citizenship should be based on traditional or customary ideas of descent or guardianship. The British concept of citizenship, which at one time must have governed the position in Botswana, had started with a question of allegiance, and been conferred on a basis of birth within the territorial jurisdiction. In Taswell-Langmead’s Constitutional History (11ed 1960) by TFT Plucknett, at 678, the position of the alien, the opposite of the citizen, was contrasted with that of the citizen in these words
By way of a conclusion we may consider the position of the alien who strictly had no civil liberties. There were many reasons for this. He was often a merchant intent on the dangerous operation of taking money out of the realm; he was sometimes a usurer; he might be a cleric with obnoxious bulls and provisions from Rome; he might be an enemy; after the Reformation his theology as well as his trading might arouse antipathy.

It is clear that what the State of Britain was trying to guard against was not purity in descent or guardianship, but a host of prejudicial activities which those not within the sovereigns allegiance threatened. Of course in modern states, it is the municipal law which determines the citizenship of the individual. The legislature may choose which prescription to follow. The basis may be birth to parents who are themselves citizens irrespective of where the child is born, or may be birth within the territorial jurisdiction, while yet a third course may have a mixture of both. There may be other prescriptions. It is all a matter for the State legislature. But whatever course municipal law adopts must comply with two prerequisites: it must, in the first place, conform to the constitution of the state in question, and secondly it must conform to international law. For as Oppenheim points out, at 643-4,
While it is for each state to determine under its law who are nationals, such law must be recognised by other states only ‘in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality’.

As he points out by way of example, a state which imposes its nationality upon aliens residing for a brief period in its territory or upon persons resident abroad, may not have the privilege so conferred accepted by other members of the international community.
I may mention also in passing that the fact that different states follow different criteria in conferring citizenship means that whatever Botswana provides in its citizenship laws may not achieve the objective of eliminating dual citizenship, if that indeed is what is desired, because where some states confer citizenship by birth to parents, whether through the male or the female line, and others confer citizenship by birth within a territorial area, cases will occur where a child born to citizens of state A, which follows the descent principle, within the territorial jurisdiction of state B, which follows the territorial area principle, will initially acquire the citizenship of both states A and B. Other combinations between the parents may produce similar results. In this very case, the respondent’s eldest child, Cheshe, who acquired Botswana citizenship at birth because her parents were not married at the time, also became, and presumably still is, an American citizen by descent. Such a child may continue with this dual citizenship for the rest of his or her life. But those states which want to avoid dual nationality would then require the child to opt for the citizenship which he or she wishes to continue with upon attaining majority. The device for eliminating dual citizenship does not, therefore, appear to me to lie in legislation which discriminates between the sexes of the parents.

As far as the present case is concerned, the more important prerequisite which each legislation must comply with is the requirement that the legislative formula chosen must not infringe the provisions of the Constitution. It cannot be correct that because the legislature is entitled to lay down the principles of citizenship, it should, in doing so, flout the provisions of the Constitution under which it operates. Where the legislature is confronted with passing a law on citizenship, its only course is to adopt a prescription which complies with the imperatives of the Constitution, especially those which confer fundamental rights to individuals in the State.

With those considerations in mind, I come now to deal with the central question, namely, whether section 15 of the Constitution allows discrimination on the ground of sex. The provisions of the section which are for the moment relevant to this issue are subsections (1), (2), (3) and (4). They state as follows:
15(1) Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall make any provision that is discriminatory either of itself or in its effect.
(2) Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
(3) In this section, the expression ‘discriminatory’ means affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or accorded privileges or advantages which are not accorded to persons of another such description.
(4) Subsection (1) of this section shall not apply to any law so far as that law makes provision–
a. for the appropriation of public revenues or other public funds;
b. with respect to persons who are not citizens of Botswana;
c. with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law
d. for the application in the case of members of a particular race, community or tribe of customary law with respect to any matter whether to the exclusion of any law in respect to that matter which is applicable in the case of other persons or not; or
e. whereby persons of any such description as is mentioned in subsection (3) of this section may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to these persons or to persons of any other such description, is reasonably justifiable in a democratic society.

Subsection (1) mandates that ‘no law shall made any provision that is discriminatory either of itself or in its effect’. Subsection (2) mandates that ‘no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority’. Subsection (3) then defines what discriminatory means in this section. It is ‘affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or accorded privileges or advantages which are not accorded to persons of another such description’. The word ‘sex’ is not included in the categories mentioned. According to the appellant, therefore, ‘sex’ had been intentionally omitted from the definition in section 15(3) of the Constitution so as to accommodate, subject to the fundamental rights protected by section 3 thereof, the patrilineal structure of Botswana society, in terms of the common law, the customary law, and statute law.

If that is so, the next question is whether the definition in section 15(3) in any way affects anything stated in section 3 of the Constitution. We must always bear in mind that section 3 confers on the individual the right to equal treatment of the law. That right is conferred irrespective of the person’s sex. The definition in section 15(3) on the other hand is expressly stated to be valid ‘in this section’. In that case, how can it be said that the right which is expressly conferred is abridged by a provision which in a definition for the purposes of another section of the Constitution merely omits to mention sex? I know of no principle of construction in law which says that a fundamental right conferred by the Constitution on an individual can be circumscribed by a definition in another section for the purposes of that other section. Giving the matter the most generous interpretation that I can muster, I find it surprising that such a limitation could be made, especially where the manner of limitation claimed is the omission of a word in a definition in that other section which is valid only for that section. What the legal position, however, is, is not that the Courts should give the matter a generous interpretation but that they should regard limitations to fundamental rights and freedoms strictly.

If one comes imploring the Court for a declaration that his or her right under section 3 of the Constitution has been infringed on the ground that, as a male or female, unequal protection of the law has been accorded to him or her as compared to members of the other gender, the Court cannot drive that person away empty handed with the answer that a definition in section 15 of the Constitution does not mention sex so her right conferred under section 3 has not been infringed. How can the right to equal protection of the law under section 3 be amended or qualified by an omission in a definition for the purposes of section 15? We are told that the answer lies in an application of the rule of construction expressio unius exclusio alterius.

Before testing the validity of that maxim in this case, I think we should examine further the manner in which limitations on the fundamental rights and freedoms of chapter 2 of the Constitution are set out in the Constitution itself. A number of sections in the chapter make exceptions or place limitations on the rights and freedoms conferred. A close reading of the provisions of the chapter discloses that whenever a provision wishes to state an exception or limitation to a described right or freedom, it does so expressly in a form which is bold and clear. In some cases the form of words used occurs so frequently that it can even be characterised as a formula. In section 4(2) the protection of the right to life is limited by–
4(2) A person shall not be regarded as having been deprived of his life in contravention to subsection (1) of this section if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justified– (a) for the defence of any person from violence or for the defence of property . . .

In section 6(3) the protection from slavery, servitude and forced labour is limited by–
6(3) For the purposes of this section, the expression ‘forced labour’ does not include– (a) any labour required in consequence of the sentence or order of this court . . .

In section 7(2) the protection from inhuman treatment is limited by–
7(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment that was unlawful in the former Protectorate of Bechuanaland immediately before the coming into operation of this Constitution.

The expression “nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention . . . of this section to the extent that the law ‘authorises’ or ‘makes provision for’”, in particular, is often used to create the required exceptions. It is again used in section 8(5) with respect to the protection from deprivation of property; in section 9(2), with respect to the limitations on the protection for privacy of home and other property; in section 10(12), with respect to limitations to the provisions to secure protection of law; in section 11(5) with respect to limitations on the protection of freedom of conscience; in section 12(2) with respect to limitations on the protection of freedom of expression; in section 13(2), with respect to the limitation to the protection of freedom of assembly and association; and in section 14(3) with respect to the limitation on the protection of freedom of movement. Section 16(1) which gives a general and comprehensive power to derogate from fundamental rights and freedoms in time of war or where a state of emergency has been declared under section 17 uses a variation of the formula.

Even section 15 follows that pattern. As we have seen, subsection (1) proscribes laws which make any provision which is discriminatory either of itself or in its effect, and subsection (2) proscribes discriminatory treatment in actions under any law or public office or authority. Then subsection (4) places the limitations on that proscription. It opens by saying, “Subsection (1) of this section shall not apply to any law so far as that law makes provision–” and proceeds to itemise the provisions which are exempted from the application of subsections 15(1) and (2). Then in subsection (5) a limitation is placed on the protection from discrimination with respect to qualifications for service as a public officer etcetera by the use of what has been described before as the formula, “Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) of this section . . .” And in subsection (9), where savings are made from the protection with respect to laws in force immediately before the coming into force of the Constitution or to written laws repealed and re-enacted, a variation of the same formula is used.

If the makers of the Constitution had intended that equal treatment of males and females be excepted from the application of subsections 15(1) or (2), I feel confident, after the examination of these provisions, that they would have adopted one of the express exclusion forms of words that they had used in this very same section and in the sister sections referred to. I would expect that, just as section 3 boldly states that every person is entitled to the protection of the law irrespective of sex, in other words giving a guarantee of equal protection, section 15 in some part would also say, again equally expressly, that for the purposes of maintaining the patrilineal structure of the society, or for whatever reason the framers of the Constitution thought necessary, discriminatory laws or treatment may be passed for or meted to men and women. Nowhere in the Constitution is this done. Nowhere is it mentioned that its objective is the preservation of the patrilineal structure of the society. But I am left to surmise that the Constitution intended sex-based legislation by the omission of the word “sex” from section 15(3) and that the reason for the word’s omission was to preserve the patrilineal structure of the society. I find it a startling proposition. If that were so, is it not extraordinary that equal protection is conferred irrespective of sex at all by section 3? What is even more serious is that section 15 would then, under subsection (1), permit not only the making of laws which are discriminatory on the basis of sex, but under subsection (2) it would permit the treatment of people in a discriminatory manner by “any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority”. Does this mean that differential treatment is permissible under the Constitution by any person in the performance of any public office or any public authority depending on whether the person being dealt with is a man or a woman? That interpretation boggles the mind.

Faced with the remarkable consistency in the manner in which the Constitution makes exceptions to or places limitations on the protections that it grants, I have the greatest difficulty in accepting that the Constitution chose only the all important question of sex discrimination to make its desired exception by omission in a definition. Why did the framers of the Constitution choose, in this most crucial issue of sex-based discrimination, required to preserve the male orientation of traditional society, to leave the matter to this method? Why did they make the discovery of their intention on this vital question dependent on an aid to construction, an aid which is not conclusive in its application, when in other cases desired exclusions had been so boldly and expressly stated? I can find no satisfactory answers to these questions. My difficulty is further compounded when I consider that this omission in the definition is expected not only to exclude “sex” from a protection conferred in section 15 but also to actually limit or quality a right expressly conferred by section 3, the basic and umbrella provision for the protection of fundamental rights and freedoms under the Constitution.

The application of the expressio unius principle to statutory interpretation in Botswana, which has to compete for supremacy in this case with conclusions derived from the positive internal evidence of the Constitution itself as to how it makes exceptions when desired, is, according to the argument of the appellant, provided for by section 33 of the Interpretation Act (Cap 01:04) which states that:
33. Where an enactment qualifies a general expression by providing that it shall include a number of particular matters or things, any matter or thing which is not expressly included is by implication excluded from the meaning of the general expression.

It is true that “sex” is omitted from the categories mentioned in the definition in section 15(3) of the Constitution. But even if that definition through the omission qualifies any general expression found in the subsection, it appears to me that it does not qualify any general expression in section 3, which is the section under which the respondent complained. Nevertheless, as the appellant submits that the respondent could challenge the provisions of the Citizenship Act, if at all, only on the ground that her rights under section 15 of the Constitution have been contravened, the expressio unius principle calls for examination. In any event, section 24(2) of the Interpretation Act admits all aids to the construction of an enactment in dispute when it provides that:
24(2) The aids to construction referred to in this section (that is, those dealing with what material could be used by a Court as an aid to construction) are in addition to any other accepted aid.

The occasions on which the expressio unius principle applies are summarised in Bennion on Statutory Interpretation at 844 as:
. . . it is applied where a statutory proposition might have covered a number of matters but in fact mentions only some of them. Unless these are mentioned merely as examples, or ex abundanti cautela, or for some other sufficient reason, the rest are taken to be excluded from the proposition . . . (it) is also applied where a formula which in itself may or may not include a certain class is accompanied by words of extension naming only some members of that class. The remaining members of the class are then taken to be excluded. Again the principle may apply where an item is mentioned in relation to one matter but not in relation to another equally eligible.

The competing claims in this case are that the omission was deliberate and intended to exclude sex-based discrimination, the alternative being that the omission was neither intentional nor made with the object of excluding sex-based discrimination. I have already shown how exclusions from the protections in the fundamental rights chapter of the Constitution have in other cases been made. The method is wholly against the argument based on the application of the exclusio unius principle. Further, when the categories mentioned in sections 3 and 15(3) of the Constitution are compared, it will be seen that they do not exactly match. Not only is “sex” omitted from the definition in section 15(3) although it appears in section 3, but “tribe” is added to the definition in section 15(3) so that it reads, “race, tribe, place of origin, political opinions, colour or creed”, although “tribe” does not appear in section 3. The appellant explained the addition of “tribe” on the ground that it was specifically included because of the concern that the framers of the Constitution had for possible discrimination on that ground. That indicates that the classes were mentioned in order to highlight some vulnerable groups or classes that might be affected by discriminatory treatment. I find this conforming more to mention of the class or group being ex abundanti cautela rather than with the intention to exclude from cover under section 15 a class upon which rights had been conferred by section 3. Here, as Bennion points out at 850, the ruling maxim is abundans cautela non nocet (abundance of caution does not harm) (see the Canadian case of Docksteader v Clark (1903) 11 BCR 37, cited by EA Driedger in The Construction of Statutes). I do not think that the framers of the Constitution intended to declare in 1966 that all potentially vulnerable groups or classes who would be affected for all time by discriminatory treatment have been identified and mentioned in the definition in section 15(3). I do not think that they intended to declare that the categories mentioned in that definition were forever closed. In the nature of things, as far-sighted people trying to look into the future, they would have contemplated that with the passage of time not only the groups or classes which had caused concern at the time of writing the Constitution but other groups or classes needing protection would arise. The categories might grow or change. In that sense, the classes or groups itemised in the definition would be, and in my opinion, are by way of example of what the framers of the Constitution thought worth mentioning as potentially some of the most likely areas of possible discrimination.

I am fortified in this view by the fact that other classes or groups with respect to which discrimination would be unjust and inhuman and which, therefore, should have been included in the definition were not. A typical example is the disabled. Discrimination wholly or mainly attributable to them as a group as such would, in my view, offend as much against section 15 as discrimination against any group or class. Discrimination based wholly or mainly on language or geographical divisions within Botswana would similarly be offensive, although not mentioned. Arguably religion is different from creed, but although creed is mentioned, religion is not. Incidentally, it should also be noticed, that although the definition mentions “race” and “tribe”, it does not mention “community”, yet the limitation placed on subsection 15(1) by section 15(4) refers to “a particular race, community or tribe”. All these lead me to the conclusion that the words included in the definition are more by way of example than as an exclusive itemisation. The main thrust of that definition in section 15(3) is that discrimination means affording different treatment to different persons wholly or mainly attributable to their respective characteristic groups. Then, of course, section 15(4) comes in to state the exceptions when such differential treatment is acceptable under the Constitution. I am, therefore, in agreement with the learned Judge a quo when he says that the classes or groups mentioned in section 15(3) are by way of example.

On the basis of the appellant’s argument, the legislature relying on the omission of “sex” in section 15(3), could, for example legislate that the women of Botswana shall have no vote. Legislation in Botswana may also provide in that case that no woman shall be President or be a member of parliament. The appellant states that the legislature will not do that because there will be no rational basis for it, and in any case it will not, under subsection 15(4)(e), be reasonably justifiable in a democratic society. But is not the basis for such legislation the same as the preservation of the patrilineal structure of the society which, as has been urged, led to the deliberate omission of “sex” in the definition of discrimination? In any case, the appellant cannot, for this purpose, take advantage of the exception provided in section 15(4)(e) which permits discrimination which is reasonably justifiable in a democratic society to support his argument on the rationality of the basis of the legislation, because in the first place that would be using the exception for purposes directly opposite to what was intended, and secondly, on his own argument, if “sex” is deliberately left out of the definition of discrimination in subsection (3) in order to perpetuate the patrilineal society, it is left out for all purposes of section 15, including the provisions of subsection (4)(e). That provision in subsection 15(4)(e) expressly refers to “persons of any description as is mentioned in subsection (3) of this section . . .” That, by the argument of the appellant, cannot include anything done on the basis of the sex of the person.

Fundamental rights are conferred on individuals by constitutions not on the basis of the track records of governments of a state. If that were the criterion, fundamental rights need not be put in the constitution of a state which is known for the benevolent actions of its government. In any event, if the constitution is the basic or founding document of the particular state, that state would have no track record for anyone to go by. In the best of all possible worlds, entrenchment of fundamental rights in a constitution should not be necessary. All that these rights require in such state would be accorded as a matter of course by the government. Fundamental rights are conferred on the basis that, irrespective of the government’s nature or predilections, the individual should be able to assert his rights and freedoms without reliance on its goodwill or courtesy. It is protection against possible tyranny, oppression or deprivations of those self same rights. A fundamental right or freedom once conferred by the constitution can only be taken away or circumscribed by an express and unambiguous statement in that constitution or by a valid amendment of it. It cannot be taken away or circumscribed by inference. It is for these reasons that I find it difficult to accept the argument of the appellant which asks us to infer from the omission of the word “sex” in the definition of discrimination in section 15(3) that the right to equal protection of the law given in section 3 of the Constitution to all persons has, in the case of sex-based differentiation in equality of treatment, been taken away.

Questions as to whether every act of differentiation between classes or groups amounts to discrimination and what categories of persons are protected under section 15 may arise. If the categories of groups or classes mentioned in section 15(3) are but examples, where does one draw the line as to the categories to be included? Of course, treatment to different sexes based on biological differences cannot be taken as discrimination in the sense that section 15(3) proscribes. With regard to the classes which are protected, it would be wrong to lay down any hard and fast rules. The vulnerable classes identified in sections 3 and 15 are well known. I would add that not only the classes mentioned in the definition in section 15(3), but, for example, the class also mentioned in subsection (4)(d), where it speaks of “community” in addition to “race” and “tribe” have to be taken as vulnerable. Civilised society requires that different treatment should not be given to people wholly or mainly on the ground of membership of the designated classes or groups. But as has been shown with respect to race and gender based discrimination the development of thought and conduct on these matters may take years. One feels a sense of outrage that there was a time when a Chief Justice of the United States would say, as did Taney CJ in Dred Scott v Sanford 19 How 393 (1857):
The question then arises, whether the provisions of the Constitution, in relation to personal rights and privileges to which the citizen of a state should be entitled, embraced the Negro African race, at that time in this country . . . In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as part of the people, nor intended to be included in the general words used in that memorable instrument . . . They had for more than a century before been regarded as beings of an inferior order; and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit . . . This opinion was at that time fixed and universal in the civilised portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

Today, it is universally accepted that discrimination on the ground of race is an evil. It is within the memory of men still living today in some countries that women were without a vote and could not acquire degrees from institutions of higher learning, and were otherwise discriminated against in a number of ways. Yet today the comity of nations speaks clearly against discrimination against women. Changes occur. The only general criterion which could be put forward to identify the classes or groups is what to the right thinking man is outrageous treatment only or mainly because of membership of that class or group and what the comity of nations has come to adopt as unacceptable behaviour.

One point was taken by the appellant in his grounds of appeal but not developed further by him before us. That is the argument that in section 15(4)(c) of the Constitution there is an exclusion from the provisions of subsection (1) “with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law”, and that an exclusion with regard to the law of citizenship is an exclusion which qualifies under “other matters of personal law”. I raise this point here only to show that it has not been overlooked, and that in my view it is not valid. In the first place, as stated in connection with the argument which prayed in aid the provisions of section 15(4)(3), the underlying argument that on the basis of the omnibus clause in section 15(4)(c) discriminatory laws on citizenship could be made on the basis of sex is defeated by the fact that section 15 as a whole does not deal with discrimination on the basis of sex at all. Proceeding from that general exclusion to exclude further from the section discrimination in citizenship cases on the ground of sex seems to me to be excluding sex-based discrimination from a provision which does not in any case apply. That cannot achieve the desired object. On the other hand, there is a sense in which the expression “personal law” may be used to describe the aggregate of elements affecting the legal status of a person. That would be the case, for example, when one is considering matters of personal law as opposed to the law of things. But it does not seem to me to be the use made of that expression here. The more common meaning of personal law is the system of law which applies to a person and his transactions determined by the law of his tribe, religious group, case, or other personal factor, as distinct from the territorial law of the country to which he belongs, in which he finds himself, or in which the transaction takes place. (See Walker in The Oxford Companion to Law.) That, I think, is the sense in which personal law is used here. Apart from the laws on “adoption, marriage, divorce, burial, devolution of property on death” of the communities to which persons belong which are expressly mentioned in the provision, I would expect the omnibus clause, “other matters of personal law”, to cover related matters of family law on, for example, domicile, guardianship, legal capacity, and rights and duties in the community and such matters. Otherwise, if the wider meaning of all laws affecting personal legal status is taken as the correct meaning, the omnibus clause in the exception would serve to wipe out practically all protections given to individuals as persons. In the usual narrow sense, however, citizenship, which is conferred by statute on a state-wide basis is not a matter of personal law.

The point was also mentioned, though not developed, that the provisions of the Citizenship Act questioned were re-enactments of previously existing legislation, and, therefore, were saved from challenge by section 15(9)(b) which states that:
15(9) Nothing contained in or done under authority of any law shall be held to be inconsistent with the provisions of this section – (b) to be extent that the law repeals and re-enacts any provision which has been contained in any written law at all times since immediately before the coming into operation of this Constitution.

Serious examination of this provision shows that it clearly does not apply to the situation in this case. It would apply if sections 4 and 5 of the Citizenship Act had existed as laws before the Constitution came into effect. We know they did not. Even sections 21 and 22 of the Constitution which they were intended to replace were not in existence as laws prior to the coming into operation of the Constitution. But above all, I think that section 15(9)(b) applies only when a written law in existence before the Constitution, and therefore, one which is protected whatever its terms by section 15(9) if it continues after the Constitution, is repealed and re-enacted exactly or at least substantially in the same form as before. By this test, the provisions of section 4 and 5 would not qualify, even if they had replaced some written law in existence before the Constitution. They were not exactly the same or even substantially the same as the provisions before.

The point was rightly taken that if discrimination on the basis of sex was disallowed by the Constitution, the Constitution itself proceeded to break its prescription by providing in the original form, after section 21 which dealt with births within Botswana in terms which were gender neutral, section 22 which provided that:
22. A person born outside Botswana or after 30 September 1966 shall become a citizen of Botswana at the date of his birth if at that date his father is a citizen of Botswana.

Obviously, the Constitution there treated children of Botswana men differently from children of Botswana women, in that the children of Botswana men acquired citizenship which children of Botswana women did not necessarily acquire. In their wisdom, the framers of the Constitution at the time, thought that the prescriptions they provided for the acquisition of nationality for persons born outside its territory or jurisdiction should be limited to descent through the male line. It made no distinction between birth within wedlock or otherwise. It made no provision with respect to the mother of the child. That was how the Constitution framers thought Batswana citizens born outside Botswana should be traced. We cannot declare a provision in the Constitution unconstitutional. It would otherwise be a contradiction in terms. The Constitution had always had the power to place limitations in its own grants. If it did so, what it enacted was as valid as any other limitation which the Constitution placed on rights and freedoms granted. What a constitutional provision can do, however, ordinary legislation cannot necessarily do. The same limiting provision which the Constitution places on a grant, if put into ordinary legislation may be open to review on the ground of vires, and if found to infringe any of the provisions of the Constitution will be declared unvalid, unless it could otherwise be justified under the Constitution itself. The fact that the Constitution differentiated between men and women in its citizenship has to be accepted as a legitimate exception which the framers thought right. But that does not provide a general license for discrimination on the basis of sex. My view on the meaning of sections 3 and 15, therefore, is not altered by the original provision in section 22.

Incidentally, it would be noticed from the original constitutional provisions on citizenship that no distinction was drawn between descent through the male or female line in the case of persons born within the jurisdiction. If the framers had intended that a distinction in citizenship be made dependent on the nationality of the father in order to preserve the male orientation of Botswana society, this was where it would have been found. It was the most important provision on the acquisition of citizenship because it was the provision governing the acquisition of citizenship by the overwhelming number of Botswana. Yet the repealed section 21 of the Constitution simply stated that: “Every person born in Botswana on or after 30 September 1966 shall become a citizen of Botswana.”

The learned Judge a quo referred to the intentional obligations of Botswana in his judgment in support of his decision that sex-based discrimination was forbidden under the Constitution. That was objected to by the appellant. But by the law of Botswana, relevant international treaties and conventions, may be referred to as an aid to interpretation. We noticed this in our earlier citation of section 24 of the Interpretation Act which stated that, “as an aid to the construction of the enactment a court may have regard to . . . any relevant international treaty, agreement or convention . . .” The appellant conceded that international treaties and conventions may be used as an aid to interpretation. His objection to the use by the learned Judge a quo of the African Charter on Human and Peoples’ Rights, the Convention for the Protection of Human Rights and Freedoms, and the Declaration on the Elimination of Discrimination against Women, was founded on two grounds. In the first place, he argued that none of them had been incorporated into the domestic law by legislation, although international treaties became part of the law only when so incorporated. According to this argument, of the treaties referred to by the learned Judge a quo, Botswana had ratified only the African Charter on Human and Peoples’ Rights, but had not incorporated it into domestic law. That, the appellant admitted, however, did not deny that particular charter the status of an aid to interpretation. The appellant’s second objection was that treaties were only of assistance in interpretation when the language of the statute under consideration was unclear. But the meaning of both section 15(3) of the Constitution and sections 4 and 5 of the Citizenship Act was quite clear, and, therefore, no interpretative aids were required.

I agree that the meaning of the questioned provisions of the Citizenship Act is clear. But from the strenuous efforts that the appellant has made in justification of his interpretation of section 15(3) of the Constitution his claim that the meaning of that subsection is clear seems more doubtful. The problem before us is one of discrimination on the basis of sex under the Constitution. Why, one may ask, do sections 3 and 15 of the Constitution apparently say contradictory things? It is the provisions of the Constitution itself which give rise to the difficulty of interpretation, if any; not the Citizenship Act. What we have to look at when trying to determine the intentions of the framers of the Constitution, is the ethos, the environment, which the framers thought Botswana was entering into by its acquisition of statehood, and what, if anything, can be found likely to have contributed to the formulation of their intentions in the Constitution that they made. Botswana was, at the time the Constitution was promulgated, about to enter the comity of nations. What could have been the intentions and expectations of the framers of its Constitution? It is to be recalled that Maisels P in the Petrus case, referred to earlier, at 714 to 715 said in this connection that:
. . . Botswana is a member of a comity of civilised nations and the rights and freedoms of its citizens are entrenched in its constitution which is binding on the legislature.

The comity of civilised nations was the international society into which Botswana was about to enter at the time its Constitution was drawn up. Lord Wilberforce in the case of Minister of Home Affairs (Bermuda) v Fisher (1980) AC 319, at 329 to 329 spoke of this international environment acting as one of the contributory influences which fashioned and informed the approach of the framers of the Constitution of Bermuda in words which could, with slight modification, have been written equally for Botswana. He said:
“Here, however, we are concerned with a constitution, brought in force certainly by Act of Parliament, the Bermudian Constitution Act 1967 of the United Kingdom, but established by a self-contained document. . . . It can be seen that this instrument has certain special characteristics. 1. It is, particularly in Chapter 1, drafted in a broad and ample style which lays down principles of width and generality. 2. Chapter 1 is headed protection of fundamental rights and freedoms of the individual.
It is known that this chapter, as similar portions of other constitutions instruments drafted in the post-colonial period, starting from Nigeria, and including the constitutions of most Caribbean territories, was greatly influenced by the European Convention for the protection of human rights and fundamental freedoms (1953) . . . That convention was signed and ratified by the United Kingdom and applied to dependent territories including Bermuda. It was in turn influenced by the United Nations Universal Declaration of Human Rights of 1948. These antecedents, and the form of Chapter 1 itself, call for a generous interpretation, avoiding what has been called ‘the austerity of tabulated legalism’, suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.

The antecedents of the Constitution of Botswana with regard to the imperatives of the international community could not have been any different from the antecedents found by Lord Wilberforce in the case of Bermuda. Article 2 the Universal Declaration of Human Rights of 1948 states that:
Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The British Government must have subscribed to this declaration on behalf of itself and all dependent territories, including Bechuanaland, long before Botswana became a State. And it must have formed part of the backdrop of aspirations and desires against which the framers of the Constitution of Botswana formulted its provisions.

Article 2 of the African Chapter on Human and Peoples’ Rights provides that:
Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

Then paragraphs 1 and 2 of article 12 state that:
1. Every individual shall have the right to freedom of movement and residence within the borders of a state provided he abides by the law.
2. Every individual shall have the right to leave any country including his own, and return to his country. This right may only be subject to restriction, provided for by law for the protection of national security, law and order, public health and morality.

Botswana is a signatory to this charter. Indeed it would appear that Botswana is one of the credible prime movers behind the promotion and supervision of the charter. The learned Judge a quo made reference to Botswana’s obligations under such treaties and conventions. Even if it is accepted that those treaties and conventions do not confer enforceable rights on individuals within the State until Parliament has legislated its provisions into the law of the land, in so far as such relevant international treaties and conventions may be referred to as an aid to construction of enactments, including the Constitution, I find myself at a loss to understand the complaint made against their use in that manner in the interpretation of what no doubt are some difficult provisions of the Constitution. The reference made by the learned Judge a quo to these materials amounted to nothing more than that. What he had said was:
I am strengthened in my view by the fact that Botswana is a signatory to the OAU Convention on discrimination. I bear in mind that signing the convention does not give it power of law in Botswana but the effect of the adherence by Botswana to the convention must show that a construction of the section which does not do violence to the language but is consistent with and in harmony with the convention must be preferable to a ‘narrow construction’ which results in a finding that section 15 of the Constitution permits unrestricted discrimination on the basis of sex.

That does not seem to me to be saying that the OAU convention, or by its proper name the African Charter of Human and Peoples’ Rights, is binding within Botswana as legislation passed by its Parliament. The learned Judge said that we should so far as is possible so interpret domestic legislation so as not to conflict with Botswana’s obligations under the charter or other international obligations. Indeed, my brother Aguda JA referred in his judgment at 37 to the charter and other international conventions in a similar light in the Petrus case. I am in agreement that Botswana is a member of the community of civilised states which has undertaken to abide by certain standards of conduct, and, unless it is impossible to do otherwise, it would be wrong for its Courts to interpret its legislation in a manner which conflicts with the international obligations Botswana has undertaken. This principle, used as an aid to construction as is quite permissible under section 24 of the Interpretation Act, adds reinforcement to the view that the intention of the framers of the Constitution could not have been to permit discrimination purely on the basis of sex.

I now come to the submission in locus standi. I have left the point until the end because like the appellant who himself admitted in his submissions that, “This is a case where in view of the ‘circularity’ of some of the arguments, it may be necessary for the Court to consider the merits before coming to a conclusion on the locus standi”, I feel that it could not have been determined without first going into the merits. With respect to the point, the appellant argued that the Court a quo erred in holding that the respondent had locus standi to ask to pass on either section 4 or 5 of the Citizenship Act. The appellant, it was submitted, is a practising lawyer, who on marrying on 7 March 1984, freely married into an existing citizenship regime carrying with it all the consequences referred to by the Judge a quo, namely, that not only her husband but by her children by the marriage were liable to be expelled from Botswana, and that if her husband were to decide to leave both Botswana and herself, the children, assuming that they were left behind, could only continue to live in Botswana if granted residence permits. She was, went on the argument, at the time of her marriage exercising her right to liberty, and could not now be heard to complain of a consequence which she had consciously invited. Nor could she rely on the choice she freely made as an infringement of her rights which should confer jurisdiction under section 18 of the Constitution. In any event, the appellant argued, there was no threat or likelihood of it alleged by the respondent of expulsion of her husband, who had been in Botswana for fifteen years, and potential adverse consequences of a speculative nature was not sufficient to confer locus standi under section 18. Section 5 of the Citizenship Act, the appellant argued had no relevance at all to the respondent; the argument advanced that she was still of child-bearing age and might choose to have another child outside Botswana was too remote for consideration.

And, in the case of her present children, it was submitted that there were strong reasons for holding that she was not sufficiently closely affected by any action taken against them as a result of section 4 of the Act to enable her to claim that the provisions of the Constitution were being or likely to be contravened in relation to her by such action as required by section 18.

I do not think a person should be prejudiced in the enjoyment of his or her constitutional rights just because that person is a lawyer.

On the locus point, the appellant further argued that the popularis actio of Roman law, which gave an individual a right of action in matters of public interest was not a part of Roman-Dutch common law. The principle of our law being that a private individual must sue on his own behalf; the right he sought to enforce must be available to him personally, or the injury for which he or she claimed redress must be sustained or apprehended by himself. The cases of Darymple v Colonial Treasurer 1910 TS 372; Director of Education, Tvl v MacCagie 1918 AD at 621; Veriava v President of SA Medical and Dental Council 1985 (2) SA 293 (T) at 315; and Cabinet of the Transitional Government of SWA v Eins 1988 (3) 369 (A) were cited as authorities to show that section 18 of the Constitution reflected this principle when it provided that the wrong (that is, the actual threatened contravention of the relevant sections) must be in relation to the applicant. But the point made by those authorities has been distinguished in cases affecting the liberty of the subject by the South African Appellate Division in Wood v Odangwa Tribal Authority 1975 (2) SA 294 (A) at 310 where Rumpff CJ, after analysing the proposition that the actio pupularis did not apply in Roman-Dutch law, said:
Nevertheless, I think it follows from what I have said above, that although the actiones populares generally have become obsolete in the sense that a person is not entitled ‘to protect the rights of the public’, or ‘champion the cause of the people’ it does not mean that when the liberty of a person is at stake, the interest of the person who applies for the interdict de libero homine exhibendo should be narrowly construed. On the contrary, in my view it should be widely construed because illegal deprivation of liberty is a threat to the very foundation of a society based on law and order.

I need not, however, go into these cases in detail. Section 18 speaks for itself. I have recited the relevant provisions in subsection (1) earlier on in this judgment. It says that “if any person alleges that any of the provisions of sections 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him”, that person may apply to the High Court for redress. The section shows that the applicant must “allege” that one of the named sections of the Constitution has been, is being or is likely to be infringed in respect of him. He must therefore sue only for acts or threats to himself. But the section does not say that the applicant must establish as a matter of proof that any of these things has or is likely to happen to him. The meaning of “allege” is “declare to be the case, especially without proof” or “advance as an argument or excuse” (see Concise Oxford Dictionary (8ed 1990)). I believe that in the context of section 18(1), it is the earlier of the two meanings that the word has. Of course, the allegation to enable the applicant to seek the aid of the courts must not be frivolous or without some foundation. But that is not the same thing as a requirement to establish positively. In my opinion, we here see an example of a case where constitutional rights should not be whittled down by principles derived from the common law, whether Roman-Dutch, English or Botswana. Under section 18(1), an applicant has the right to come before the courts for redress if he declares with some foundation of fact that the breach he complains of has, is in the process of being or is likely to be committed in respect of him. Where a person comes requesting the aid of the courts to enforce a constitutional right, therefore, the question which has to be asked in order that the courts might listen to the merits of his case is whether he makes the required allegation with reasonable foundation. If that is shown the courts ought to hear him. Any more rigid test would deny persons their rights on some purely technical grounds. In this connection I refer to a parallel situation in the case of Craig v Boren cited earlier in which the United States Supreme Court at 194 et seq demonstrated, on the point of locus to bring a constitutional challenge on the ground of discrimination, that persons not directly affected within the class discriminated against could bring the action if they could show that they were or could bring the action if they could show that they were or could be adversely affected by the application of the law. In that case, the question was whether a law prohibiting the sale of “non-intoxicating” 3.2% beer to males under the age of 21 and to females under the age of 18 constituted gender based discrimination that denied males between 18 and 20 years of age the equal protection of the laws. The Court held that a licensed vendor of the beer had standing to challenge the law.

Did the applicant allege that her constitutional right had been, was being, or was likely to be infringed? That question I now proceed to answer in the case of the respondent. We recall from the paragraphs of her founding affidavit which are recited in the earlier part of this judgment that after setting out what she believed to be the constitutional provisions which had been infringed, she continued in paragraph 19 thereof to state that as set out above she verily believed that “the provisions of section 3 of the Constitution had been contravened in relation to myself”. I do not think the allegation could be clearer.

Has that allegation some basis of truth? No doubt due to a mixture of some adventitious claims made by her with respect to her husband, who is without doubt an alien and could under the Constitution be placed under some disabilities, her case seems to have been misunderstood. It was, for example, argued by the appellant that the Citizenship Act laid down how citizenship should be acquired and taken away, and therefore, for a person to attack the Act he or she must be shown to be a person who did not enjoy the rights of citizenship, not one, like respondent who was enjoying full rights of citizenship. In this case, the respondent’s children might, according to the argument, have been affected by the Citizenship Act, not herself. But the Citizenship Act, although defining who should be a citizen, has consequences which affect a person’s right to come into, live in and go out of this country, when he likes. Such consequences may primarily affect the person declared not to be a citizen. But there could be circumstances where such consequences would extend to others. In such circumstances, the courts are not entitled to look at life in a compartmentalised form, with the misfortunes and disabilities of one always kept separate and sanitised from the misfortunes and disabilities of others.

The case which I understand the respondent to make is that due to the disabilities under which her children were likely to be placed in her own country of birth by the provisions of the Citizenship Act, her own freedom of movement protected by section 14 of the Constitution was correspondingly likely to be infringed and that gave her the right under section 18(1) to come to court to test the validity of the Act. What she says is that it is her freedom which has been circumscribed by the disabilities placed on her children. If there is any substance to this allegation, the courts ought to hear her. The argument that a mother’s relationship to her children is entirely emotional and that an emotional feeling cannot found a legal right does not sound right to me. Nor am I impressed by the argument that a mother has no responsibility towards a child because it is only the guardian who has a responsibility recognised by law, and in Botswana, that guardian is the father. The very Constitution which all in Botswana must revere recognises a parent’s, as distinct from the guardian’s, responsibility towards the child. Recall that section 5(1)(f) states that:
5(1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say – (f) under order of a court or with the consent of his parent or guardian, for his education or welfare during any period ending not later than the date when he attains the age of 18 years.

This provision assumes that before the child is 18 years of age, the parent, a term which we all must agree includes a mother, also has some responsibility towards the child’s education and welfare. In any case he or she can control what happens to the child. During that period, especially at the younger end of the infant’s life span, the parents’, especially, the mother’s, movements are to a large extent determined by the child’s. At about this same time, the welfare of a child in a broken home is generally considered better protected in the custody of the mother than that of the father. It is totally unrealistic to think that you could permanently keep the child out of Botswana and yet by that not interfere with the freedom of movement of the mother. When the freedom of the mother to enter Botswana to live and to leave when she wishes is indirectly controlled by the location of the child, excluding the child from Botswana is in effect excluding the mother from Botswana. If the exclusion is the result of a determination of the child’s citizenship which is wrong, surely this would amount to an interference with, and therefore an infringement of, the mother’s freedom of movement.

But, then, the argument goes, the respondent has not shown that there was any likelihood of her non-Botswana children being kept out of Botswana. The answer to that is that governments with a discretion to exercise do not always give advance notice of how they intend to exercise that discretion. It is not unknown for a government which decides to deport or expel an alien to do so without prior notice of its intention. Must the person who is subject to, or may indirectly be affected by, such expulsion wait until the expulsion order is made before he or she can bring legal proceedings? When is he or she threatened with the likelihood that an order could be made? To the question whether the immigration officers in Botswana had a discretion to turn away an alien from entering the country, the appellant’s reply was that they had.

The appellant also put in an affidavit made by the immigration officers at the Gabarone Airport with respect to the latest entry into Botswana of the respondent’s husband and her non-citizen children. I believe this was intended to refute allegations indicating various forms of harassment or inconveniences that the respondent claimed the husband and children had suffered. I quote it because it is educative. The senior immigration officer in charge of the department’s affairs at the airport on the date of arrival deposed to the fact that the respondent was known to her, and that at no time did the respondent complain to her of any harassment or threats made to her family by the immigration officers. She had consulted her officers, none of whom had any recollection of the incident referred to by the respondent. Then she proceeded to state the normal procedure followed by persons arriving at the airport. She said:
When passengers arrive at Sir Seretse Khama Airport Botswana passport holders are not required to fill in forms, but proceed straight through the booth reserved for them to the immigration checkpoint, then on to clear customs. In the case of visitors or returning residents holding foreign passports, these fill in entry forms which they produce with their passports to the immigration officers in the booths reserved for foreign passport holders. If everything is in order they are given a green card which is presented at the immigration checkpoint and they pass through to customs.
1 If there is a query then the passport holder is given a red card to present at the immigration checkpoint, where further inquiries are made and the problem is sorted out. Where a returning resident does not have a valid residence permit or visitor’s permit endorsed in his passport then one of two things will happen – either
(a) a form 7 is served upon the visitor, requiring him to appear before an immigration officer at a given time for examination as to whether he is entitled to remain in Botswana; or
(b) his passport is endorsed for a short period to enable him to regularise his stay in Botswana.
(c) The latter is what appears to have happened to Mr Dow and his non-citizen children, as it appears that his passport did not reflect a valid residence permit or visitor’s permit at that time. The record of his entry is not, however, available as this was over twelve months ago.

Botswana is entitled to deal with aliens in the manner described. The Constitution allows it and international law and practice recognises it. The respondent in the affidavit to which the senior immigration officer’s was in answer alleged that she was in the company of her husband and her three children on that occasion, all having arrived back from holiday. She and the eldest daughter, the Botswana citizen, were granted unconditional entry into Botswana, while the husband and her other two children were put through the alien treatment. The senior immigration officer’s affidavit did not deny that the respondent and the eldest daughter were also present at the time. It also, at least, confirmed that different treatment was normally accorded to citizens and non-citizens. The chief immigration officer also made an affidavit in answer to the respondent’s. In it he said:
4. According to the file Mr Dow arrived in Botswana on 12 October 1977 as a United States Peace Corps Volunteer teacher. He remained exempted from holding a residence permit as an employee of the Botswana Government until 21 January 1990. On 16 July 1990 Mr Dow submitted an application for a residence permit for himself and his two younger children. While his application was being processed, he continued his studies on the basis of three months waivers, which is standard procedure in a case such as this. This was the situation during December 1990/January 1991.
5. Mr Dow’s application was duly approved by the Immigration Selection Board on 17 April 1991. After preparation of the permit, this was despatched to the Dean of Students, University of Botswana on 29 May 1991, marked ‘for Peter Nathan Dow’. It appears from the affidavit that Mr Dow did not receive the permit, but merely continued having the waiver certificate in his possession stamped every three months by his nearest immigration officer.
6. On 8 January 1992, at his request, a replacement permit was issued to Mr Dow, including the two children and valid 17 April 1991 to 30 June 1992, when his course was to expire.

I do not think I need comment on the disturbing experiences of a mother who finds different and unfavourable treatment as to residence meted by authority to some of her three children in comparison to others who are accorded completely opposite treatment by the same authority. Whether or not the authorities think that eventually the required permission sought by the disadvantaged children will be given, during her wait she must go through a period of uncertainty, anxiety and mental agony. In this case, it seems that for some time, at least, two of the respondent’s three children had no more than three months granted each time for their stay in Botswana. Chasing after the extensions itself cannot be a matter of joy. The mother’s concern for permission for her children to stay cannot be lightly dismissed on the ground that it was no business of hers, the responsibility being the children’s father’s. Well-knit families do not compartmentalise responsibilities that way. As long as the discretion lies with the governmental authorities to decide whether or not to extend further the residence permit of the husband, on whose stay in Botswana the stay of the respondent’s children depend, the likelihood of the children’s sudden exhaustion of their welcome in the country of their mother’s birth and citizenship is real. Those with the power to grant the permission have the power to refuse. Were they to be refused continued stay, not only the children’s position but the mother’s enjoyment of life and her freedom of movement would be prejudiced. It does seem to me not unreasonable that a citizen of Botswana should feel resentful and aggrieved by a law which puts her in this invidious pos