## Facts

- Unity Dow, a citizen of Botswana, married an American citizen residing in Botswana.
- Botswana’s Citizenship Act 1982, as amended in 1984, allowed citizenship by descent through a citizen father, and through a citizen mother only for children born out of wedlock.
- As a result, a child born before Dow’s marriage was recognized as a citizen, while two children born during the marriage were denied citizenship and treated as non-citizens despite being born in Botswana.
- Dow alleged the statutory scheme threatened family unity and exposed her husband and children to adverse immigration consequences.
- Dow sought declaratory relief that the impugned statutory provisions were unconstitutional and void to the extent of inconsistency with the Constitution.
- The Attorney General opposed the application, including on jurisdiction and standing grounds.

## Issues

1. Whether the High Court had jurisdiction to review legislation and declare statutory provisions unconstitutional.
2. Whether Dow had locus standi to challenge the citizenship provisions affecting her children and family life.
3. Whether the citizenship provisions unlawfully discriminated on the basis of sex and violated constitutional guarantees of equality and protection of the law.

## Decision

- The High Court held it had power to review legislation and declare statutory provisions ultra vires the Constitution.
- The High Court held Dow had standing because the citizenship scheme directly affected her children and her own enjoyment of constitutional rights.
- The High Court held the challenged citizenship provisions were unconstitutional to the extent they prevented a citizen mother, married to a non-citizen, from transmitting citizenship to her children on equal terms with citizen fathers.
- The court declared the discriminatory aspects of the provisions invalid and of no force to the extent of their inconsistency with the Constitution.

## Legal Principles

- Constitutional rights provisions are interpreted broadly and purposively; permitted limitations on rights are construed narrowly.
- Equality and “protection of the law” prohibit sex-based discrimination in citizenship transmission where the constitutional text guarantees rights “whatever … sex.”
- A court may read related constitutional guarantees together to avoid interpretations that would authorize discrimination.
- A litigant has standing to seek constitutional relief where a statute concretely and adversely affects family life and the litigant’s enjoyment of constitutional rights.
- Citizenship rules that impose adverse legal consequences on women for marrying non-citizens, while not imposing comparable consequences on men, constitute unconstitutional discrimination.

## Conclusion

The High Court invalidated citizenship provisions that denied children citizenship through their citizen mother within marriage while allowing transmission through a citizen father, holding the scheme unconstitutional sex discrimination and confirming both judicial review jurisdiction and standing for directly affected applicants.


Dow v. Att’y Gen., Misca. No. 124/1990 (Bots. High Ct. June 11, 1991)