The actual and perceived conflicts between customary law and human rightslaw, especially in issues dealing with gender equality, have remained a majorchallenge in Africa. Some of these conflicts are further complicated by thevarying and contradictory interpretation of some customary laws by the courts.Different approaches have been adopted at different times and in differentplaces to deal with some of these conflicts. One of the most controversial areasof customary law has been the traditional exclusion of women from propertyinheritance. This paper takes a critical look at how the courts in Botswana havedealt with the issue of the right to inherit the homestead or family home.It examines this issue in the specific context of the recent case of Ramantele vMmusi in which the Court of Appeal had to consider the customary law ruleof male ultimogeniture – which permits only the last-born son to inheritthe homestead intestate to the exclusion of other siblings, especially females.It argues that courts need to be more proactive and progressive in theirapproach to dealing with such issues than they have been in the past in order torecognise the nature and extent of changes that are taking place today. Themain lesson that can be drawn from the Botswana case is that if customary lawis to survive and develop, more needs to be done to promote research andscholarship in this area and judges also need to take advantage of this research and deal with these customary law disputes with knowledge, understandingand sensitivity.
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