Children Born Out of Wedlock and their Right to Inherit from their Fathers under Customary Law in Botswana – Baone Kealeboga & Anor v Tidimalo Mercy Kehumile & Anor

Abstract

For centuries, children born out of wedlock have been subjected to many forms of discrimination under customary law in Botswana. One such example is succession, whereby a child born out of wedlock is prohibited from inheriting from or through its father. This discrimination had adverse implications on such children’s rights to equality, non-discrimination and dignity. The aim of this comment is to discuss and appraise the judgment of the Court of Appeal of Botswana in Baone Kealeboga & Anor v Tidimalo Mercy Kehumile & Anor which abrogated the customary law rule that a child born out of wedlock cannot succeed its father ab intestato. The gist of this comment is that the court’s decision in this case is ground-breaking in that it recognises and affirms (for the first time in Botswana) that children born out of wedlock are equal to, and worthy of the same respect and consideration as those born in wedlock.