Pushing the boundaries of customary law jurisprudence in Botswana: social science and the law in the case ofRamantele vs. Mmusi

In Ramantele vs. Mmusi and others (2013), Botswana's Court of Appeal decided that the family home in Kanye, Botswana belonged to Edith Mmusi and her sisters instead of Mmusi's nephew, Molefi Ramantele. Through an analysis of the Mmusi case, this article speaks to legal scholars’ interest in customary law jurisprudence and gender issues. It reflects on recent attempts by lawyers and activists to use social science evidence and the prism of living law, to tackle gender inequality through litigation. The article proposes that under certain conditions, it is possible to use evidence of nuanced social realities to destabilise the forms of knowledge on which courts usually adjudicate and to challenge the marginalisation of women's voices that tends to accompany these court hearings. In the Mmusi case, the introduction of certain social science evidence and methods opened a space for the Court of Appeal to consider Mmusi's argument about customary law, rather than dismissing it as having no place in debates on custom or glossing over it as a repeat of an argument about “Western” rights. However, the Mmusi case also hints at the limits of incorporating arguments about the living nature of local or customary law into institutional legal settings.