By Pumza Fihlani
In many countries across Africa, the right of the firstborn male, or closest male relative, to inherit family property – is still standard practice. Women are denied the right to inherit the family estate purely because of their gender, a custom that is upheld by some traditional leaders.
But four sisters in Botswana did something that no-one there thought was possible – they took on tradition and won.
Last month, a five-year legal struggle ended with a landmark victory to Edith Mmusi (80) and her three sisters Bakhani Moima (83), Jane Lekoko (77), and Mercy Ntsehkisang (68).
Inside her modest home in a village in Kanye, a small town south of the capital Gaborone, Ms Mmusi has a wry smile as she speaks of the lengthy case.
“It took resilience and courage to get this far. It was a stressful time for the family that gave me many sleepless nights. I am glad it is finally over,” she says. This is the family’s ancestral home – a compound of some eight concrete houses in various sizes, built on the Ramantele family plot.
Over the years it was sub-dived to accommodate members of the family who wanted to live close to the elders. The house at the centre of the row was built on the land where Ms Mmusi’s old family home once stood.
What remains of that house is a wall of mud, bricks and mortar, the only reminder of the house Ms Mmusi and her sisters had lived in with their parents as young girls.
“This is the only home we’ve known here. We helped to build one of the first mud houses in this big yard,” she tells me, a big smile on her face.
It is easy to see that this place means a lot to them, as they share their childhood memories of growing up here.
When their father died, Ms Mmusi and her sisters contributed to the upkeep of the homestead and looked after their mother until her death in 1988.
In court the sisters argued that they were entitled to the family home as they had used their own finances to renovate the property.
The Appeals Court agreed, finding that denying them this right went against the constitution.
But this was not an easy victory.
Traditional values are held in high regard here, as in many rural areas in Africa.
Tswana custom prescribes that the family home is inherited either by the first-born or last-born son, depending on the community.
As a result, their nephew had earlier won the case at the Customary Court of Appeal which found that under his ethnic group’s customs, women could not inherit the family home.
That court had ordered that Edith and her sisters be evicted from the family home.
As a last-ditch attempt to avoid eviction, the sisters took the matter to the High Court and later the Appeals Court, which both ruled in the women’s favour.
But this has been a bitter-sweet time for the family, and the matter has caused divisions in the family.
Some male members feel the women belittled their culture by challenging it, Ms Mmusi tells me.
Something she says she hopes will change with time.
“Customs and culture have no place in the modern world because women are still oppressed in the name of culture.”
“What makes men [especially the staunch traditionalists] think they have power over us? We are all equal in God’s eyes,” she adds, the smile now gone.
Tradition vs modern society
But why are some people against women inheriting the family home?
In its broadest sense, traditionalists argue that the only way of preserving family wealth is by passing on the inheritance only to the males, arguing that women may take that wealth to another family after they marry.
But African cultural expert Moses Twala, of the Kara Heritage Institute, believes this ruling should compel traditional leaders to take a closer look at what they are doing.
“Culture is not static, culture is dynamic because it conforms to the times, especially with the fact that people are getting more and more modernised with the times,” he says.
He says inheritance should not be seen as something that will benefit one person, but rather as something that will see to the wellbeing of the entire family once the head of that home has died.
He argues that women are as capable of carrying that responsibility as males.
“A family is not one person only who is a male. Females also play a very big role also in uniting the very same family even when males are present,” he told the BBC.
But Botswana is largely a conservative country. While a handful of chiefs in Botswana are for promoting gender equality, they say this should be done in a manner that still shows respect to age-old traditions.
“Yes culture is dynamic but tradition is important, the role of tradition is to preserve our identity. We would like to preserve our culture and live in the way that our great-grandfathers lived,” says Chief Gaseintswe Malope II.
As head of the Bangwaketse people, the third biggest community in Botswana, he says it is his responsibility to make sure his people honour their traditions.
Modern law and African culture are in many instances still poles apart and sometimes in direct contradiction, according to women right’s activists.
Women’s Inheritance Now, a group advocating the inheritance rights of women, believes the judgment will go a long way to bring change to Botswana.
Back in Kanye, Ms Mmusi is hopeful that the case will inspire other women to stand up for what they believe in.
“It will give them motivation and comfort that they are not the only ones going through that, where they are. We hope they will say: ‘These women took action and they won’ and do the same too. We are overjoyed,” she says.