A deadly blow for women’s rights in Lesotho
Posted: 19 June, 2014 Filed under: Bamisaye Olawaye Oyetola | Tags: ACHPR, African Charter of Human and Peoples’ Rights, Basotho, CEDAW, chieftainship, constitution, Convention on the Elimination of all forms of Discrimination against Women, customary law, democracy, human rights, ICECSR, inheritance, International Covenant on Economic, International Covenant on Economic Social and Cultural Rights, Kingdom of Lesotho, Lesotho, women's rights 30 Comments
Author: Bamisaye Olawaye Oyetola
LLM Candidate, Human Rights and Democratisation in Africa, Centre for Human Rights, University of Pretoria
This article is a result of field research in Lesotho conducted from 5-12 April 2014.
The Court of Appeal of Lesotho (apex court) gave a decision that will make the hearts of all human rights defenders bleed. The decision is a setback to the fight for equality and for the recognition of women’s rights as human rights.
The case in question is that of SENATE GABASHEANE MASUPHA V. THE SENIOR RESIDENT MAGISTRATE FOR SUBORDINATE COURT OF BEREA & OTHERS. (SENATE’S CASE). The judgment was delivered on 17 April 2014.
The facts of the case in brief are; the appellant is the first daughter and only legal child of the deceased chief in Lesotho. Upon her father’s death, the mother assumed the chieftainship position of the deceased. And not too long, the mother passed on and the appellant sought to inherit the chieftainship of her father which devolved to her late mother, she was denied her right. Her half-brother from another woman who her father had not legally married will be entitled to the said title, based on the fact that women are not allowed to succeed their father with regards to chieftainship matters under the customary law of the Basotho people.
The appellant angered by this discriminatory practice, challenged it at the constitutional court but did not succeed; she appealed the decision at the apex court to enforce her right to chieftainship but also had no success.
Lesotho takes pride in the fact that it is not only a democratic state but it is in compliance with the tenets of fundamental human rights. Section 1(1) of Lesotho Constitution declares it to be a democratic Kingdom and while section 4(1) of same constitution guarantees fundamental rights to ‘every person’ irrespective of their sex, religion, ethnicity etc. Lesotho has ratified various international human rights instruments including the Convention on the Elimination of all forms of Discrimination against Women (CEDAW).
The said Senate’s case is perceived to be discriminatory and against the relevant provisions of CEDAW, however as observed by the Constitutional court of Lesotho, Lesotho is said to have validly entered a reservation to the effect that when it comes to chieftainship issues, the CEDAW will not apply. This was why the constitutional court did not find any wrongfulness with the customary practice that discriminates against the female child as far as inheritance to chieftainship is concerned.
Notwithstanding that, Lesotho is excused from its obligation to abolish all discriminatory practices by virtue of its reservation under CEDAW; it cannot derail from its similar obligations under various international treaties which it has voluntarily entered.
For instance article 3 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) mandate states to ensure equal rights of women and men to the enjoyment of all… cultural rights contained therein. Article 2 of the African Charter on Human and Peoples’ Rights (ACHPR) provides among other things that ‘every individual’ shall be entitled to all rights contained in it without any form of distinction such as race, sex, ethnic group etc., while the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo convention) under article 2 urges states parties to combat all forms of discriminatory practices against women and article 21(2) guarantees men and women the right to inherit in equitable share of their parent property.
The court ought to have found in favour of the appellant, had it been it had considered the various treaties other than CEDAW. Right to inheritance should not be divided into segments i.e. by saying women only have the rights to inherit a particular property but not the other. There is either equality between men and women in a society or there is not. The court ought to have invoked the equality provision of Lesotho’s Constitution by upholding the right of the appellant to succeed her father notwithstanding her gender.
The apex court held that the constitution of Lesotho guarantees discrimination when it comes to chieftainship issues. In the words of the court:
The inequality of which the appellant complains is the result… of a constitutionally sanctioned discrimination in s 18. (para 29)
While in the modern fight against discrimination, the court is seen as a place of succor and vindication, the court has not lived up to that expectation as far as human rights law is concerned.
This decision is one that has dealt a deadly blow on equality between men and women not only in Lesotho but across the globe. It is sad that, in modern society, women are still considered unfit for some positions which men are entitled to. The courts should be more proactive and progressive in protecting and safeguarding the rights of women across the globe and not to be a clog in the wheel of progress in the fight against discrimination and inequality that exists in most African systems.
It is hope that in the not too distant future, there will be an end to this constitutionally sanctioned discrimination against women in Lesotho.
About the Author:
Bamisaye Olawaye Oyetola is a Barrister and Solicitor of the Supreme Court of Nigeria. Prior to enrolling in the LLM(Human Rights and Democratisation in Africa) at the Centre for Human Rights, University of Pretoria, he was an associate at the law firm of Consolex Legal Practitioners, a Corporate Law Firm which has its head office in Lagos, Nigeria. He holds bachelor of law (LLB) degree from the University of Lagos Nigeria and an B.L. from the Nigerian Law School. His research interests include human rights, youth rights, international criminal law, and comparative constitutional law.
AfricLaw 
The scenario is very clear and simple. She succeeds the chieftaincy throne if there is no male child to inherit the throne. It’ll be discriminatory not to acknowledge the existence and rights of the male child on grounds of circumstances of his birth. She’ll be in violation for not recognising the only surviving male child of his father as a result of her prejudice and insensitivity to the rule of primogenitor. Her role as the legitimate female child is never in doubt. The male succeeds his father’s throne,even if born by a harlot. If he’s lucid and of sound mind and competent,that seals it.
I do not quite agree, the case is actually a setback on the women’s eight jurisprudence an doesn’t show equality and fairness, the lady in the legal, social and moral sense was meant to be the rightful heir. The fact that ‘She succeeds the chieftaincy throne if there is no male child to inherit the throne’ is inherently discriminatory. Holding up the woman’s right would not have been discriminatory to the male as CEDAW in its article even recognizes special measures taken to ensure acceleration of De facto equality and such ll not b considered as Reverse Discrimination.
Nice article Bamisaye, you nailed the issue to a T. It is either there is equal rights in a society or there is not.
Splendid article… It beat my imagination that there is something like constitutionally sanctioned discrimination. Obviously,the judgement of the Apex Court is so unfortunate.
Please, kindly note that e.g. the Spanish law currently allows a female heir to the throne only if she has no brothers. Spain entered a reservation to CEDAW as follows: “The ratification of the Convention by Spain shall not affect the constitutional provisions concerning succession to the Spanish crown”. Therefore the situtation in Lesotho is not an isolated one.
it is simply repugnant to natural justice, equity and good conscience.
I Hail my good friend Bamisaye olawaye oyetola who has seen what the recent age and future of women’s rights discrimination in Africa with a perfect understanding that such practice is a bizarre on Human’ s Right. The Senate and court of lesotho has allowed a high degree of injustice to trail down the garment of Judiciary, tarnishing the image and sanity of The Court of Law. Where solace and succour is expected to be dished out in all sense of equality.
The appellant is reduced to a low class citizen(tagging her ineffectual), she is the legitimate child, let’s forget her sex. Looking at the senerio, the issue or rather the consideration of her half-brother to uphold the title is insane. Remember it was the Wife of the deceased that took the chieftancy as a women, why didn’t the illegible child hold up a claim. Are both not women?
So I am of the opinion that, the ratification of CEDAW in Lesotho killed the aims and objectives of the charter and their constitution has mocked the articles contained therein. If indeed we say will fight for equality and against gender discrimination, the compromise must be evicted. The world is a global village, and what so ever the women of lesotho suffer, all other women in the globe, including me suffers. To be Just, is being Pure and Fair with out preferences. Thank you!
Indeed, it’s a nice work. Keep the flag flying Sir.
Moraly d verdict of d court is wrng bt constitutionaly its justify couple wit d existing norms nd traditions of d people.Africa is a continent enriched wit cultural heritage.Meanwhile the idea of inequality between men and women its a natural phenomenon as God ordained man as d head of household.However,your article its vry informative and a call for gender balance in african system and social stratification.
This is a well-conceived/informed opinion; an evidence of sound scholarship! Unfortunately, discrimination against women is just one among the scads of issues of Human Right violations against the ideals of social justice. In fact, it may largely be considered natural, which explains the mild irritation it elicits, compared to the violent crimes of child rape and domestic violence that have gained the most popularity! It appears practically impossible to fight discrimination generally to zero-level, as even in a nuclear family unit a parent has their own favourite of the children who gets the coat of many colours. While we crave a society that is sensitive to the need to protect the weak against the strong by rising in defence at every occurence of such violations, we must on our part not stop shouting and calling for justice. You have lend your voice to the fight- a quite commendable one at that!
Nice article bamisaye. The major causes of women discrimination are religion, custom and culture. To stop gender discrimination in africa requires the full implementation of cultural rights for everybody in the community, which is nt base on gender, stereotype, sexism and prejudice. And also 1979 convention on the elimination of all form of discrimination against women. Article 2 states that” the abolition of law and custom which discriminate against women, for equality under the law to be recognised, and for the states to ratify and implement existing UN human rights instrument against discrimination”.
Good article. Kip it up
Good work indeed sir.
I just want to chip in one or two things.women in Lesotho are undergoing a traumatizing and suffocating experience in the hands of the law.but something can still be done. if the government are not helping matters, then let her take it to God in prayer. nice work BAMI. I am really proud of you
Well done bamishaye. There will be the need for the legislature in lesotho to amend their constitution to provide for equality of all men and women without any qualification. The right of any individual is inalienable and essential to their existence as humans..this can b traced to the doctrine of social contract. My que is if the legislature is refusing to the needful, what is the role of international law and I.C.J in view of the fact that lesotho has ratified various convention guaranteeing same? Is there any sanction?
What a powerful write up, Gender Equality is part of the UN chatter and I believe there shouldn’t be discrimination between the two genders. Ur article can change such belief so bro kip d work going. One Luv.
Nice article and interesting case. However, you have neglected the fact that excluding the male child from inheritance on the basis of being an illegitimate child is also a form of discrimination itself.
Nice effort Bamisaye. Just a couple of comments. I think a ‘cultural and contextual particularities’ approach(to borrow An-Naim’s phrase) to universal norms of human rights will present a more nuanced analysis. For instance,the South African Constitutional Court’s outlawing of the rule of primogeniture (see the literature on similar case of Shilubana for instance) has itself been criticised for viewing equality from the prisms of the common law. And what about African matrilineal societies where the reverse of primogeniture is the norm? Eminent scholars like Hotoundji, An-Naim, Mamdani, Ake, and Fannon, among many others have pointed out the futility of viewing African culture and ways of life strictly from western notions and perspectives. This is not to say that Africa and Africans are in any way different from the rest of the world. It will at the same time be naïve to ignore local and contextual experiences and peculiarities. My point, a more nuanced approach is called for.
Lesotho, in my opinion, is far from being a democratic state if it blatantly discriminates against women in this manner. I believe women can do more and be more if given adequate support by the male folks. Kudos, Barrister Bamisaye.
we law with discrimination is totally a bad law, why should inheritance be fashioned on gender line, that is barbaric and totally obnoxious in the face of it. Africa should carry this 21st century crusade with much enthusiasm and pragmatic approach
Bamisaye, my President, i must confess that i feel honoured reading this article.
However, i will disagree with you on this to the extent that the issue is that of inheritance of chieftaincy title and not that of inheritance of property. Had it been the latter, i would have totally concur with you.
Most of these so called international laws were made without proper consultations with Africans and without giving due considerations to our culture and practices. To this extent, i would say that they are repugnant to our cultures and ways of life.
The issue of custumary titles are very sensitive and must not be subjected to the whims and caprises of the European’s views. There are practices that must be strictly adhered to in other to preserve the people’s culture. Why cant they make the British throne free for all? Because according to their culture, its the preserve of the royal family. In Spain, Why cant a woman become the king?
Just take the issue of polygamy for instance. Should marriage not be a contract between two consenting people? If a man decides to marry more than one wife (and the first wife did not object by divorcing the man), is he not exercising his rights to make choices? Why is polygamy not recognised by the so called Europeans? The answer is simple, its SIMPLY EUROCENTRISM!!!
it’s pathetic that not only is there a discrimination but it is constitutionally n judicially recognised. clearly this is discrimination against all. nice work Mr Oyetola
i most confess dat dis is a fantastic article. Bami it wuld be vry good if u really work on dis issue becos it has been a major issue in our society and d problem started from d home for example in africa wen it comes to sharin of will in d family d male has d highest part of it,becos of wat if u ask those father’s,they tell becos he is d one dat will later continue bearin my and sum kind of filthy excuses apart frm our society dis tins occur also in many families even some fathers prefer to invest more on d male dan his female children becos he tinks d male are an asset to him all dis must stop in our families and also in our society bt i feel dat we should start making amendments and changes from our home then we will see d change won’t get to d society. At d same tym ma dear bami u culd be of help too if u wuld do more of dis and make sure pple reads it and be able to pick out some gud point out of it. Bami am proud of you kip d good work goin more sufficient Grace to do moreexcellently well
To eradicate discrimination, the court must remain committed and interested in eliminating this scourge. Expectedly, this should be the judicial wave around all jurisdictions but in the aforementioned case above, the constitutional court as well as the apex court jettisoned their opportunity to rule against discrimination vis-a-vis chieftancy matters. This for me is a case of “misplaced priority” on the part of the judiciary. It is sadonic that in the 21st century, discriminatory practises like this are still judicially favoured. The priciple “Pacta sunt servanda” to the effect that “All agreements are Binding” is not in doubt as such since the state has ratified the ICESCR and the ACPHR which provisions kick against discrimination, then the judiciary must comply by the provisions in good faith. I hope that the lesotho judiciary do the needful as far as enforcing fundamental huma right is concerned.
It is just unfortunate that, even now, gender is being used as a mechanism to disenfranchise people. Hopefully this article will cause great discomfort in the hearts of the persons who continue this discriminatory practice. Equality should no longer be a farfetched concept, by now it should be seen as an imperative part of human reality.This is an informative and well written article Mr.
Bamisaye Oyetola.
I am immensely grateful for all the comments (both that of the concurring and dissenting views), your views are highly respected and appreciated!
Bami..this is a nice write-up but I slightly disagree with you considering that its an issue of chieftancy and not property. If it was the latter, then you are spot on but you cannot take away the customary rules as regards to chieftancy especially in African context. Bringing in some European laws to overrule customary issues is wrong in my opinion. Interestingly it funny how only a woman is allowed to rule the UK and other provinces around the world…I think laws should be made to open up such positions too…Av a great day!!
Brilliant write up…;)
First, Bami am sorry for reading this week’s after I got the link. Good thing is I read.
The African culture is one that has its foundation on the reasoning that one would only see clearly the defects it’s trying to cure for the want of having a strong and contimuous society, but no doubt that some of these customary tenets are in today’s time repugnant to Natural Justice, Equity and Good Conscience. Though I still ask whose conscience would we use as the litmus test paper to see the objectivity in this principle?
If the first comment on this page represents the true state of the law, then my question on Repugnance test goes further to ask, why should it be that, that position is for the male chilf and not all children, the question of legitimacy or illegitimacy further strengthening my point on this for I can argue on both sides.
The role of gender should turn to the role of humanity. The question should be on the face of bit, without any mischief, who is fit for this position by inheritance, if the female is fit for it why chose the male over her on the sole ground of gender? This to me screams discrimination from a giant trumpet. We are in 2014, the LesothoJudiciary just threw away a golden opportunity to use the pragmatic approach all developing nations are encouraged to adopt, and interpret laws to move the nation forward and mitigate the harshness of laws that will impede on a person fundamental right. One will only hope in the face of this unfortunate judgment that in future cases it is expected that there should be a rethinking towards a positive change in judicial attitude, for an error of law should not be condoned indefinitely. The judiciary needs to have an open mind to be bias free, to interpret and pronounce rights and help move Africa forward.
Ok…. pardon all my typo errors. No thanks to my mobile.continous not contimuous, child not chilf, on the face of it not on the face of bit…..I hope that is all ooooo. Good one Bami