The Student Representative Council of the Molepolole College of Education filed a claim against the Attorney General as representative of the Principal of the Molepolole College of Education and the Permanent Secretary in the Ministry of Education (“Respondents”) on behalf of students affected by regulations of the Teacher’s Training College. Specifically, the Council challenged Regulation 6 of the Teacher’s Training College which demanded that students inform the college authorities as soon as a pregnancy was confirmed. According to the regulation, students who became pregnant between December and April would be forced to leave the college immediately, due to the academic year schedule, and those whose pregnancy was confirmed between May and November would required to miss the next academic year. If a student became pregnant for the second time while at college, the institution had the right to expel her.
Appellant argued that Regulation 6 violates Section 15(3) of the Botswana Constitution, which prohibits sex-based discrimination.
The Court examined whether Regulation 6 discriminated against female students on the basis of sex.
The Court noted that differential treatment between women and men does not per se violate Sections 3 and 15(3) of the Constitution. In some cases, the law must differentiate between the sexes to achieve a legitimate objective of the public interest or for redress. However, any law that treats the sexes differently must be “reasonable and fair [and] made for the beneﬁt of the welfare of the gender.” Taking this reading into consideration, the Court stated that a regulation that forces pregnant students to leave school for a whole year is unreasonable.
The Court reasoned that it is unfair to deny pregnant female students the opportunity to continue their studies. Moreover, the Court recognized that it appeared from testimonies that pregnant students who are married would be permitted to continue their education, and the Court reasoned that such testimony demonstrated that the regulation was designed to punish unmarried pregnant women, rather than assist them. Further, a male student who impregnates a woman is not punished under Regulation 6.
The Court rejected the respondents’ argument that forcing the pregnant student to withdraw from the institution was beneficial to her and to her future child and that the regulation was clearly discriminatory against women and was contrary to the Constitution. The Court held that the enforced withdrawal could not be compared to a maternity leave. It considered that the provisions were designed to ensure that mothers “stay[ed] away” from the college.
The Court therefore held that Regulation 6 violates Sections 3 and 15(3) of the Botswana Constitution.