A deadly blow for women’s rights in LesothoPosted: 19 June, 2014 | |
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.