In 1984, Botswana citizen Unity Dow (“Applicant”) married U.S. citizen Peter Nathan Dow. The couple had lived in Botswana for 13 years and were raising three children there. According to Sections 4, 5, and 13 of the Citizenship (Amendment) Act of 1984 (“Act”), a person is a citizen of Botswana if at the time of birth, his or her father was a citizen, or the child was born out of wedlock and their mother is a citizen. A child born to a citizen mother and an alien father therefore acquired citizenship only if born outside of wedlock. The Applicant challenged the law as discriminatory, alleging that because she was married to a noncitizen, she could not pass her citizenship to her children and the Act renders her children aliens in their home country and land of birth. She also argued that such discriminatory treatment relegated women’s legal status to that of a child. Sections 4, 5, and 13 of the Act thus violated Section 7 of the Constitution of Botswana (“Constitution”), which prohibits degrading treatment toward persons. The Applicant further argued that the Act discriminates against women married to foreign husbands and men married to foreign wives. She argued that this treatment violates Section 3(a) of the Constitution, which prohibits discrimination on various stated grounds; neither sex nor gender is one of the stated grounds. However, a separate provision of the Constitution provides that every person in Botswana is entitled to fundamental rights and freedoms, regardless of race, place of origin, color, creed, or sex. The High Court decided in favor of Applicant, holding that the immigration law was discriminatory and degrading. The Attorney General appealed against the High Court’s decision.
The Court noted that under the existing law, the children were registered as part of their father’s residence permit. If the father failed to renew his permit, the children would be forced to leave Botswana. Moreover, as aliens, the children could not enjoy citizenship beneﬁts, such as a free university education. When the family left the country, the children could only travel with their father’s passport, and as a result, Applicant could not return to Botswana with her children in the absence of their father.
The Court therefore decided that the law was discriminatory and thus unconstitutional. The Court agreed with the High Court’s holding that by granting citizenship to children born outside of wedlock to a citizen mother and noncitizen father, the law compelled women “to live and bear children outside of wedlock.” The Court further stated that notwithstanding the absence of a provision prohibiting discrimination on the grounds of sex, the deﬁnition had to be read as if such discrimination were expressly mentioned therein. The Court concluded that reference to “sex” or “gender” must have been omitted in error. Two justices dissented, taking issue with the majority’s interpretation of the Constitution.
The Court affirmed the High Court’s decision, and held that it is unconstitutional to deny citizenship rights to children born to a citizen mother and an alien father.