The case was about the constitutionality of the Citizenship Act, 1982, which provided that children born in Botswana to a citizen father and a non-citizen mother were automatically citizens by birth, but children born in Botswana to a citizen mother and a non-citizen father were not. The respondent, Unity Dow, was a citizen of Botswana who was married to a non-citizen and had three children born in Botswana. She challenged the validity of the Citizenship Act on the grounds that it violated her right to equal protection of the law and freedom from discrimination on the basis of sex under sections 3 and 15 of the Constitution. She sought a declaration that her children were citizens by birth and an injunction to restrain the government from denying them passports or other privileges of citizenship.
The High Court upheld the respondent’s claim and declared that the Citizenship Act was unconstitutional, null and void. The court applied a broad and generous approach to interpreting constitutional provisions and held that:
– The Citizenship Act discriminated against women and their children on the basis of sex, which was contrary to section 15 of the Constitution, which prohibited any law or treatment that was discriminatory either of itself or in its effect. The court rejected the government’s argument that the discrimination was justified by historical, cultural or social reasons, such as patrilineal succession, prevention of statelessness or protection of national security. The court found that none of these reasons were valid or relevant in the modern context of Botswana as a democratic and sovereign state.
– The Citizenship Act also violated section 3 of the Constitution, which guaranteed every person in Botswana the fundamental rights and freedoms of the individual, subject to respect for the rights and freedoms of others and for the public interest. The court found that the Citizenship Act infringed on the rights and freedoms of women and their children, such as the right to life, liberty, security of person, protection of law, freedom of expression, assembly and association, and protection from deprivation of property without compensation. The court also found that there was no public interest that could justify such infringement.
The government appealed to the Court of Appeal, which dismissed the appeal and affirmed the decision of the High Court. The Court of Appeal agreed with the High Court’s reasoning and conclusions, and added that:
– The Citizenship Act was not only discriminatory but also arbitrary and irrational, as it created different classes of citizens based on their parentage and not on their birthplace or allegiance. The court observed that citizenship was a fundamental right and status that should not be subject to whimsical or capricious legislation.
– The preamble of the Constitution expressed the aspirations and values of the people of Botswana, such as democracy, unity, peace, justice and liberty. The court stated that these values should guide and inform the interpretation and application of the Constitution and its provisions.
The relevance of this case is that it illustrates the scope and limits of sections 3 and 15 of the Constitution, which protect the rights and freedoms of individuals from discrimination and violation by the state. It also shows how the courts apply a broad and generous approach to interpreting constitutional provisions and a narrow or strict approach to derogating from them. This case is cited as an authority on constitutional law and citizenship law in several textbooks and articles on Ghanaian legal system¹².
(1) ATTORNEY-GENERAL v. DOW 1992 BLR 119 (CA) Citation: 1992 BLR 119 (CA …. https://citizenshiprightsafrica.org/wp-content/uploads/1992/07/AG-vs-Dow-CA.pdf.
(2) Unity DOW CASE – Law case – ATTORNEY-GENERAL v. DOW 1992 BLR 119 (CA …. https://www.studocu.com/row/document/university-of-botswana/introduction-to-law/unity-dow-case-law-case/38809836.
(3) Court of Appeal, Attorney-General v. Dow, 3 July 1992, BLR 119 (CA). https://compendium.itcilo.org/en/compendium-decisions/court-of-appeal-attorney-general-v.-dow-3-july-1992-blr-119-ca.
(4) Attorney General v. Unity Dow | Women And Justice | US Law | LII …. https://www.law.cornell.edu/women-and-justice/resource/attorney_general_v_unity_dow.
(5) Botswana: Attorney-General v. Dow (Court of Appeal). https://citizenshiprightsafrica.org/attorney-general-v-dow-court-of-appeal/.
Law Author 