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Homepage / Library / Customary Law and its Impact on Women’s Rights, Children's Rights and LGBTI- People in Southern Africa – the Botswana Example

Customary Law And Its Impact On Women’s Rights, Children's Rights And LGBTI- People In Southern Africa – The Botswana Example

This paper seeks to discuss customary law as practiced in Botswana and its impact on the equal rights of women and men, women’s rights, children and Lesbians, Gays, Bisexuals, Transsexuals and Intersexed (LGBTI) people.

Nr. 14 / 2013 | Prepared for Friedrich-Naumann-Stiftung für die Freiheit (FNF) by DITSHWANELO* Botswana – The Centre for Human Rights. Philomena Apiko and Tlasetso Palime. Edited by Alice Mogwe, Director DITSHWANELO. April 2013.
Executive Summary
Botswana has a dual judicial system, one based on customary law and the other on a combination of English and Roman-Dutch law (‘received law’). Both legal systems are used by people in Botswana and have courts established to adjudicate on matters between parties. This paper seeks to discuss customary law as practiced in Botswana and its impact on the equal rights of women and men, women’s rights, children and Lesbians, Gays, Bisexuals, Transsexuals and Intersexed (LGBTI) people. The paper will also briefly discuss the parallel judicial systems in other Southern African Legal Assistance Network (SALAN) member states as well as the work which DITSHWANELO (www.ditshwanelo.org.bw) does in the field of customary law.
1. Parallel Judicial Systems of Customary Law and Western Law in Botswana
The current hierarchy of Botswana courts is as follows: Court of Appeal, High Court, Magistrate Courts, Customary Court of Appeal and Customary Courts (urban and rural). There is an Industrial Court which adjudicates on trade disputes. It is at the same echelon as the High Court. The Small Claims Court deals with claims not exceeding P 10,000 Botswana Pula (± 956,00 Euro).
a) Western Law / Received Law
Western / received law consists of English law and Roman-Dutch law as it was in force at the Cape of Good Hope on 10 June 1891 and as amended by statute and interpreted by the courts.1 The Court of Appeal is the highest and final court in the land. It was incorporated under section 99 of the Constitution of the Republic of Botswana.2 It hears appeals from the High Court and is the final arbiter of all legal matters. The High Court was created under section 95 of the Constitution and has unlimited original jurisdiction to hear and determine all criminal and civil cases. The Magistrates’ Courts are statutorily created by the Magistrates’ Courts Act3 (MCA). They are subordinate to the High Court and are controlled and supervised by the High Court, which reviews their decisions and hears their appeals. The MCA determines which matters can be heard in Magistrates Courts. They do not have powers to hear cases attracting capital punishment, like murder, treason, manslaughter, and attempts to commit to those offences. In civil cases they can hear claims of up to P 40,000 Botswana Pula (± 3.826,00 Euro). The Court of Appeal, the High Court and the Magistrates Courts allow for legal representation in both criminal and civil matters. They apply the law according to common law, legislation and customary law where applicable.4 They also apply the doctrine of precedent to case law when deciding judgments. Proceedings in these courts are recorded and the judgments in the High Court and Court of Appeal are published in the Botswana Law Reports. 
b) Customary Law
Customary law is the law of any particular tribe or tribal community in so far as it is not incompatible with the provisions of any law contrary to morality, humanity and natural justice.5 Customary Courts offer speedy and cheap adjudication of disputes and are accessible to most Batswana. There are currently 429 customary courts in the country.6 Customary courts in Botswana derive their authority from the Customary Courts Act.7 Section 2 of the Customary Courts Act (CCA) defines a customary court as a lower court or higher court established or recognized under the provisions of the Act.8 The CCA grants the Minister of Local Government power to establish a customary court as he thinks fit. The Minister must issue a warrant that defines such a court’s jurisdiction and the cases it can hear.9 In rural areas, there is a higher customary court and a lower customary court. The lower customary court typically consists of the headman’s court and the chief’s representative court.10 The higher customary courts consist of the chief’s courts which operate at district level. They are headed by a chief (kgosi) whose title is hereditary. The customary courts in urban areas, which have been established by the Minister as authorised in the CCA are headed by presidents appointed by the Minister.11 
The Customary Court of Appeal hears appeals from the Customary Courts. Customary Courts have jurisdiction to hear both criminal and civil cases. However, criminal cases involving murder and rape are excluded from the jurisdiction of the court. Customary Courts apply customary law according to the customs of a particular tribe. Legal representation is not allowed in the customary courts, in both criminal and civil matters.12 However, a person has the right to have their case transferred to a Magistrate’s Court. Magistrates’ Courts have revisory powers over decisions of the customary courts or customary courts of appeal. Any person aggrieved by an order from the Customary Court of the Appeal may appeal to the High Court. The procedure in the customary courts is governed by the Customary Courts (Procedure) Rules. Customary Courts apply customary law but in criminal cases they are subject to statutory law. This is provided for in section 12(6) of the CCA which states that no person shall be charged with a criminal offence unless such offence is created by the Penal Code or some other written law.
2. Parallel Judicial Systems in other SALAN Countries
a) South Africa’s Legal System
South Africa has a mixed legal system. Its doctrines and concepts are influenced both by Roman-Dutch law and English common law. Customary law is also part of the South African legal system, so long as it does not conflict with the Constitution.13 The Constitution vests the judicial authority in the courts, which are independent and subject only to the Constitution and the law.14 Section 166 identifies these courts as: the Constitutional Court, the Supreme Court of Appeal, (1947-1996 previously known as the Appellate Division), the High Courts, the Magistrates' Courts, and any other court established or recognized by an Act of Parliament. There are customary courts in existence that adjudicate matters between parties.
b) Malawi’s Legal System
Malawi has a parallel legal system. Its doctrines and concepts are based on English common law and traditional (customary) law. Section 10(2) of the Constitution provides that all customary law must be in line with the Constitution in order for it to be valid.15 The High Court is allowed to overturn any laws that are in conflict with the Constitution. The judiciary system consists of the following: the Supreme Court of Appeal, The High Court, Industrial Relations Court, Magistrate Courts, Courts of Resident Magistrates, Courts of Magistrates of the First Grade, Courts of Magistrates of the Second Grade, Courts of Magistrates of the Third Grade and Traditional Courts.
c) Zambia’s Legal System
Zambia has a parallel legal system which is based on English common law and customary law. The Constitution of Zambia is the supreme law of the land and any other law inconsistent with the Constitution shall, to the extent of its inconsistency, be void.16 The Zambian court structure is as follows: the Supreme Court, the High Court, Subordinate Magistrates Courts and Local Courts. 
d) Tanzania’s Legal System
Tanzania has a limited parallel legal system, based on the English common law and customary law. Customary law in Tanzania may only be used in civil matters. Zanzibar (which is an island in Tanzania) has its own judicial system, which is different to the rest of the country. The Tanzanian court system is as follows: the Court of Appeal, High Court of Tanzania, Resident Magistrates Courts, District Courts and Primary Courts. Tribunals have been established under numerous laws to adjudicate on matters such as cases that deal with land issues and tax.e) Zimbabwe’s Legal System
Zimbabwe’s legal system is a plural system which combines Roman-Dutch law and English law. Customary law is also a part of Zimbabwe’s legal system and deals with cases involving personal law matters. All law including customary law, is subject to compliance with the Constitution.17 The court system is as follows: the Supreme Court, the High Court, Magistrates’ Courts and Local Courts (‘Chiefs’ Courts’). Customary law in Zimbabwe is limited in scope in its application. It has no criminal jurisdiction whatsoever and it governs some areas of marriage, inheritance and guardianship only.
f) Mozambique’s Legal System
Mozambique has a mixed legal system, which is made up of Portuguese civil law, Islamic law and customary law. Legal pluralism is now a recognised constitutional principle in Mozambique.18 The Courts system in Mozambique is structured in the following way: Supreme Court (article 225 to 227 of the Constitution), Court of Appeals, Provincial Courts, District Courts, Administrative Court and Customs Court.
g) Namibia’s Legal System
Namibia’s legal system is a combination of common law, customary law and international law. The Constitution of the Republic of Namibia enjoys hierarchical primacy amongst the sources of law by virtue of its article 1(6).19 This means that any law which is not in accordance with the Constitution is invalid. The Namibian court system consists of the following courts: the Supreme Court, the High Court and the Lower Courts.
3. Description of the Customary Law situation in Botswana
a) Marriage
There is no single customary law applicable to marriages in Botswana as the requirements vary amongst the different tribes. Customary marriages in Botswana are potentially polygamous.20 Customary marriages are valid marriages recognized by the law in Botswana and full effect is given to their resulting consequences. Essential elements of customary marriages under customary law require: consent of the parties; capacity of the parties to marry and to marry each other; a marriage request for the woman made to her family by the representatives of the man’s family (patlo) and the acceptance of this request by the woman’s family; and the transfer of livestock (bogadi) from the man’s family to the woman’s family.21 In the case ofMphoyakgosi v Jakoba22 which dealt with marriage according to the Ngwato tribe, it was held that the transfer or payment of bogadi was not an essential element of a valid marriage although many people believe it strengthens the bond between families of the bride and the groom.
b) Property Rights in Marriage and after Divorce
Marriages under customary law are in community of property between a husband and wife. The property is the joint property of the spouses. However the property remains subject to the husband’s control as head of the family. There is no uniform customary principle regarding the determination of property rights following a divorce, and the manner of property distribution varies among different tribes. The general position is that when a couple is to be divorced, the household property is divided between them according to the circumstances of the case. The cattle forming the general herd all remain with the husband, including any that he may have allocated to his wife.23 However if the husband is at fault, he may be ordered to give his wife a few animals to support her.24 The wife is entitled to any property she may have acquired in her own right, for example, cattle and fields given to her by her parents as marriage portions or any cattle earned through trade or as a form of payment for work done.25 If she has any children, her cattle will be kept to be inherited by them. Fields cultivated by the parties during the marriage are retained by the husband, unless they were provided out of the allotment made to the wife's descent group.26 Where there are children of the marriage which is being dissolved and there is evidence that the husband intends to re-marry, animals may be taken from the general herd and distributed among the children of that marriage.27Personal belongings, such as clothes, go to their respective owners. Domestic utensils and furniture are normally awarded to the wife, but some may be awarded to the husband where she is seriously at fault.28 If the household utensils, have all been provided by the husband he may be allowed to keep some. The huts are generally left with the husband. The corn in the granaries is usually divided equally between husband and wife.29 
c) Succession and Administration of Estates
Under customary law, male children’s rights to inheritance takes precedence over female children’s rights, the latter sometimes being disinherited.30 Among the different tribes the customary rule is that the first born son will usually be the heir to his father’s property. Children born of the marriage can inherit from their deceased parents. Children born out of wedlock can only inherit from their mother and are not entitled to inherit or succeed their father. The Births and Death Registration Act31 does not permit the name of the father of a child born out of wedlock to be entered into the birth’s registry without his consent.32 The estate of a tribesman who does not leave a will must be devolved under customary law.33 A woman married under customary law can inherit from her deceased husband. A cohabiting partner cannot inherit under customary law. This rule was reiterated in Samsam v Seakarea34 where the court held that no amount of cohabitation can amount into a marriage and cannot elevate a woman cohabiting with a man to the status of wife. However, in the case of Obopile v the Attorney General,35 the Customary Court allowed the second respondent, a woman who had been living together with the deceased for six years as ‘husband and wife’, though not married, to inherit from his estate. This shows that customary law is an evolving concept and decisions depend on the merits of every case and on the practice on a particular tribe. 
d) Children, Maintenance and Custody
Children born of out of wedlock are deemed to ‘belong’ to the mother36 and consequently the mother has no maintenance rights under customary law. The father of the child is obliged to pay the mother’s father (maternal grandfather) compensation for damaging the family reputation, but has no duty to support the child.37 This is usually a ‘once off’ payment in the form of livestock. There is thus an overlap between the payment of customary damages for seduction (tshenyo) and the payment of maintenance for the child. The child’s maternal grandfather has a duty of support towards the child of his unmarried daughter. This situation reflects the view that a woman remains her father’s ‘property’ until marriage, when she becomes her husband’s ‘property’. Similarly, the father of the child has no visitation rights, as the child is considered to belong to the mother’s family. Section 6 of the Customary Law Act38 states that in any case relating to the custody of children, the welfare of the children will be of paramount consideration. This section does not differentiate between children born in and out of wedlock.
4. Description of Human Rights Challenges/ Infringements due to the Customary Law in Botswana with special Emphasis on Women, Children and LGBTI
a) Women
Customary law is patriarchal in nature and women are still under the guardianship of a male either as a father or a husband. Married women are still under the guardianship of their husband as head of the household. The Abolition of Marital Power Act39 abolished the common law marital power of husbands over their wives. However, this Act only applies to marriages under the common law.40 In the absence of a will, the estate of a tribesman will devolve under customary law. The laws of inheritance are unfavorable to women as the rules of inheritance give preference to male children as heirs. In the case of Mmusi and Others v Ramantele,41 four women challenged the Ngwaketse customary law rule which allows for the youngest son to inherit the family home. The women challenged the customary law rule stating that it infringed on their constitutional right to equality. The High Court overturned the decision of the Customary Court and held that it was an infringement of the women’s right to equality as it allowed only male children to inherit the family home.42 This is a victory for women’s rights under customary law but it still remains to be seen if the other tribes will adopt a similar view and allow women to inherit. Mr Ramantele has appealed the decision of the High Court to the Court of Appeal as final arbiter.43 
Customary marriages are in community of property and upon divorce, the property is divided among the spouses. Research shows that the woman is usually given little, especially if the property in the marriage is not from her own descent group.44This is because under customary law there is an assumption that the wife will be returning to live among the members of her own descent group, and that she can rely on them for maintenance.45 The cattle forming the general herd usually remain with the husband, which is unfair to the women as it is forms a significant amount of the marital estate. Women who are prejudiced often have to turn to the High Court to appeal the distribution of the customary courts. Women in cohabiting relationships cannot inherit from the male partners unless they had a universal partnership46. This disadvantages many women in Botswana as a significant number of women are in cohabitation relationships. Inheritance to the title of chief (kgosi) was reserved for the principal son of a deceased chief. Women were in the past not elected as paramount chiefs. However, currently the chief of the Balete people, Mosadi Seboko, is a female. This shows that there is a move to allowing women to inherit positions of chieftaincy.b) Children
Children born out of wedlock cannot inherit from their father under customary law. The only exception is if there is a subsequent marriage to legitimise them or where they are adopted under customary law. The rule was illustrated in the case ofHendrick v Tsawe47 which was an appeal from the decision of the Customary Court of Appeal in which the applicant an ‘illegitimate’ son had been ordered to return the cattle he had taken from his father’s estate. The High Court upheld the decision of the Customary Court of Appeal that an ‘illegitimate’ child could not inherit from his father. The problem with this rule is that it denies children born out of wedlock inheritance from their fathers thereby placing them at a disadvantage. The Affiliation Proceedings Amendment Act48 which is a statutory instrument, allows the mother or a guardian of a child born out of wedlock to claim maintenance from the child’s father until the child is 18 years of age. Children, especially girls, are at a risk of being forced into early marriage. Although the Marriage Act prescribes the age of marriage as 21 years of age without the need for parental consent or 18 years of age with the need for consent, this provision does not apply to customary marriages. Under customary law, the measure of whether one is ready for marriage is normally the age of puberty or the initiation into a regiment.49 For example among the remote area dweller communities, notably the Basarwa/San community, girl children can be married off at the age of 10 years.50 Such children are expected to bear and raise children and end up dropping out of school.51
Children do not generally attend or speak at the kgotla (an assembly at which tribal issues are discussed and major decisions taken) where issues of significance in a community have traditionally been and continue to be discussed. There is therefore a culture of believing that adults know what is best for children and that they are in a position to articulate the views of their children. Customary law allows for corporal punishment of children as a form of discipline and as punishment for a crime. This may be subject to abuse where the number of strokes is not commensurate to the commission a crime punishable by corporal punishment. Studies have shown that customary courts award more multiple punishments for one offence than the formal courts.52 Children who are for example found guilty of theft will be subject to imprisonment and strokes.
c) LGBTI Rights
Under customary law same sex relationships and marriages are taboo and are not recognized. This means that two people of the same sex cannot get married. Culturally, sexual activities are viewed as heterosexual between a man and a woman. Homosexuality is criminalised under sections 164 and 167 of the Botswana Penal Code53 and same sex sexual relationships are deemed ‘carnal knowledge of any person against the order of nature’. Homosexuality has been referred to by some chiefs in Botswana as a ‘mental illness’54 and as an ‘alien behavior that comes with foreigners’.55 Homosexuality is however found in all areas of Botswana including rural areas.56 There are reports of gay and lesbian children who have been chased away from their families but are scared to approach the kgotla and ask the chief or headman to deliberate on the issue.57 This is because by doing so they will have to disclose the reasons why they have been chased away from their home, resulting in them making their sexual orientation known. Since homosexuality is viewed as illegal, many gay and lesbian people are scared to disclose their sexuality due to the stigmatisation and discrimination faced by LGBTI people. Under Customary Law, because same-sex marriages are not recognized, in the absence of a will, one partner cannot inherit from the other in the event of a death59
*Outline of DITSHWANELO’s Work in the Fields of Customary Law
DITSHWANELO has published booklets entitled Know Your Law on various topics including customary law, inheritance rights and land rights. The Customary Law booklet provides information on customary law issues such as marriage and divorce. The Inheritance booklet provides information on inheritance under customary law, including inheritance in the cases of polygamy and cohabitation. The Organisation has issued press statements concerning the rights of women under customary law. In addition to this, DITSHWANELO has a legal aid project which deals with a number of cases including customary law issues like divorce and custody of children.
Furthermore, DITSHWANELO as coordinator of the Universal Periodic Review (UPR) NGO Working Group submitted a Stakeholder Report recommending that the Government of Botswana reform customary law in order to eliminate discrimination against women concerning access to property. In the same document the UPR NGO Working Group expressed concerns regarding corporal punishment of children, including under customary law, and recommended that it be abolished to protect children from the risk of physical abuse.
DITSHWANELO also facilitated the establishment of Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo) in 1998. In the same UPR Report the organisation also expressed concerns about the non-registration of LeGaBiBo. The stake-holder report recommended that the government allow for the registration of LeGaBiBo in order to promote LGBTI rights, including in relation to customary law. DITSHWANELO also recommended that government ensure that the Penal Code and any discriminatory laws and practices (including those under customary law) are brought into conformity with the Constitution, with regards to LGBTI rights. 
DITSHWANELO’s Success Stories 
DITSHWANELO through its legal aid project instructed Mr. Tshiamo Rantao to act as the attorney in the case of Mmusi v Ramantele. This case dealt with the Nwakgetse customary rule in which the youngest son inherits the family home. The High Court held this rule allowing for male-only inheritance of the family home, to be a violation of the right to equality protected in the Constitution of Botswana. Since 1998, DITSHWANELO has been involved in raising awareness about LGBTI rights and in 2001 we participated in procuring legal representation in the case of Kanane v The State. This case challenged the constitutionality of sections 164 and 167 of the Botswana Penal Code. Although the court upheld the constitutionality of these sections, the case was instrumental in highlighting the various forms of discrimination faced by LGBTI people, including customary law rules which prohibited same sex relationships. A summary of the case is available on DITSHWANELO’s website.59
1Human Rights Council, Working Group on Universal Periodic Review, Third Session, National Report submitted by Botswana, 2008, A/HRC/WG.6/3/BWA/1.
2The Constitution of the Republic of Botswana 1966.
320 of 1974 (Chapter 4:04).
4Customary Law Act 51 of 1969 (Chapter 16:01), sections 3 states that courts shall within the limits of their jurisdiction apply customary law in all cases and proceedings in which customary law is properly applied and where it is not properly applied such courts shall apply the common law. Section 4 provides for customary law to be applied to certain civil cases and proceedings between tribesmen.
5Customary Law Act ibid section 2; Customary Courts Act, section 2.
6Statistic received from website of the Ministry of Local Government available at http://www.gov.bw/en/Ministries--Authorities/Ministries/Ministry-of-Local-Government-MLG1/FAQ/Tribal-Admnistration/ [accessed on 18 April 2013].
7Customary Court Act (Chapter 4:05) hereafter CCA.
8Section 2 of the CCA.
9Section 7 of the CCA.
10Charles M Fombad, 2004 ‘Customary courts and traditional justice in Botswana: Present challenges and future perspectives, Stellenbosch Law Review Vol 15(1) 166 at 177.
11Section 7 of the CCA.
12Section 32 of the CCA.
13The Constitution of the Republic of South Africa 1996, section 2 states that the Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be full- filled.
14Section 165 of the Constitution of South Africa.
15The Constitution of the Republic of Malawi 1994, section 10(2). 
16The Constitution of the Zambia 1996, article 1(3).
17The Constitution of the Zimbabwe as amended in 2004.
18The Constitution of the Mozambique 1990, article 4.
19The Constitution of the Republic of Namibia 1990, article 1(6).
20E K Quansah, Introduction to Family Law in Botswana 4th Edition 2006. Pula Press at 36.
21Ibid at 37.
22[1997] B.L.R. 604 at 608.
23Isaac Schapera, A Handbook of Tswana Law and Custom 3rd Edition 1994. International African Institute, Hamburg at 160.
24Ibid.
25Ibid.
26Ibid.
27Ibid.
28Ibid.
29Ibid.
30See DITSHWANELO, Gender Equality available at http://www.ditshwanelo.org.bw/gender.html#gencust [accessed on 19 April 2013].
3148 of 1968 (Cap 30:01).
32Ibid section 19.
33Administration of Estates Act 20 of 1972 (Cap 31:01), section 2 defines a tribesman as a member of a tribe or tribal community of Botswana or a member of a tribe or similar group of any other country in Africa prescribed for the purposes of this Act.
342004 (1)BLR 378.
352005 91) BLR 86 (CA).
36Unity Dow and Alice Mogwe (Women and Law in Southern Africa Research Project), ‘The Convention on the Rights of the Child and the Legal status of children in Botswana’, A Consultancy Report for UNICEF Botswana, June 1992. UNICEF Gaborone. Also see
37Ibid.
3851 of 1969 (Cap 16:01).
3934 of 2004 (Chapter 29:07).
40Section 3 of the Abolition of Marital Power Act.
41Mmusi and Others v Ramantele and Another (MAHLB-000836-10) [2012] BWHC 1 (12 October 2012). Available at http://www.africanlii.org/bw/judgment/high-court/2012/1 [accessed 19 April 2013].
42See DITSHWANELO, ‘Press statement on the landmark customary inheritance law decision’, 12 October 2012. Available at http://www.ditshwanelo.org.bw/Press_2012-Oct12.html [accessed on 19 April 2013].
43Ramantele v Mmusi and Others, Court of Appeal case number CACGB-104-12, 16 November, 2012. Available at http://www.southernafricalitigationcentre.org/cases/ongoing-cases/mmusi-and-another-v-ramantele-and-another/ [accessed on 19 April 2013]. 
44Quansah ibid note 20 at 48.
45Ibid.
46See Samsam v Seakarea ibid note 33.
472008 3 BLR 447 HC.
4850 of 1970 (Chapter 28:02) as amended by Act 8 of 1999, sections 3 and 8.
49Quansah ibid note 20 at 38.
50DITSHWANELO ibid note 30.
51Duma G Boko, Scoping Study on Child Labour in Botswana 2003 Dawie Bosch and Associates, Pretoria, August 2003, cited in DITSHWANELO ibid note 30.
52Ikanyeng S Malila, 2012 ‘Severity of multiple punishments deployed by magistrate and customary courts against common offences in Botswana: A comparative analysis’ International Journal of Criminal Justice Sciences Vol 7(2) 618.
53Chapter 8:01
54Aubrey Lute, Homosexuality is rubbish--Mfa, The Botswana Gazette, May 24-30, 2006.
55Ibid.
56See Botswana Network on Ethics, Law and HIV/AIDS (BONELA) and the Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo), ‘The Violations of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in BOTSWANA: A Shadow Report’, March 2008. 
57Personal correspondence with Pilot Mathambo the Coordinator of the Pilot Mathambo Cente for Men’s Health.
58Mike Olivier. ‘The reality of being gay in Botswana’ cited in DITSHWANELO Conference on Human Rights and Democracy (2000), Creda Communications Johannesburg, South Africa. 
59Summary available at http://www.ditshwanelo.org.bw/gay.html [accessed on 20 April 2013].
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