30 March 2012
In Lesotho, Tabitha Phaloane was a village chief, governing the affairs of about 3 000 rural people. In Johannesburg she is a domestic worker, taking care of a couple’s two children and cleaning their house.
Although an acting chief in the village of Ha-Phaloane for almost 10 years, she was ousted in 2009 by her relatives because she is a woman.
“They say I can’t be a chief because I’m not married and a girl,” she said when we met at a mall near where her employers live on the West Rand.
The Constitutional Court of Lesotho is scheduled to hear a case in May that could repeal parts of the country’s Chieftainship Act, which allows only sons to succeed their fathers to chieftainship.
Structure started by Moshoeshoe
The traditional chieftaincy structure has its roots in a system devised by King Moshoeshoe I, who founded Lesotho in the late 1800s. The country has 22 principal chiefs, mainly Moshoeshoe’s descendants. The chieftaincy is composed of the king, currently King Letsie III, principal chiefs and then ward and village chiefs.
Senate Gabashane Masupha, the first-born daughter of one of Lesotho’s late principal chiefs, David Gabashane Mashupa, brought the case to the Lesotho Constitutional Court. She argues that being denied chieftainship because she is a woman violates her constitutional rights to equality and freedom from discrimination.
The Southern Africa Litigation Centre has filed an amicus curiae brief in the case.
“Universally denying women the ability to succeed to chieftainship entrenches the view that women are subordinate members of society and is a fundamental breach of their constitutional rights,” said Priti Patel, the centre’s deputy director.
The case is part of a trend to amend or repeal laws that explicitly promote gender discrimination, according to the centre. In South Africa, the Constitutional Court has invalidated laws denying women the right to inheritance and succession to chieftainship. Laws denying women inheritance based on gender have also been struck down in Ghana, Kenya, Nigeria and Tanzania.
Phaloane’s father died in 1998, after which her mother took over his duties. Her mother then fell ill and Phaloane began acting as chief.
“My father had three daughters. Two married and I was the only one who was in the family. During those times, no one complained of what I was doing on behalf of my mother.”
Phaloane said her father bequeathed his property to her son, born in 1993, who would assume the chieftainship when he became old enough. In the interim, Phaloane carried on with her duties, including recording births and deaths, supervising the branding of cattle and maintaining a register for them and allocating land for residences, farming and burial.
Mothers death brings trouble
The villagers seemed content when her mother was still alive, but Phaloane’s troubles began when her mother died in 2008. She said some relatives on her father’s side of the family then began to argue that she, an unmarried woman, could not hold the position for her son because he had been born out of wedlock.
Phaloane said that if it had not been for the support of the area chief — who has jurisdiction over her and nearby villages — she would have given up. “Because of the chief above my father who was supporting me, they were not able to chase me out,” she said. “The chief said I must go on with the work I’m doing. I mustn’t leave the people. And I did the work because he was so supportive of me and I didn’t want to disappoint him.”
Acting unofficially as chief, Phaloane did not receive a salary.
“I think I worked for two years without any pay. It was terrible,” she said. “At that time, no one was supporting me. I was alone with my kids and my sister’s kids.”
The only surviving sister of three, Phaloane is the caretaker of seven children, two of whom are her own.
In 2009 her relatives appointed another acting chief — Motha Phaloane, a distant relative — who lives in another village. At the end of that year, Tabitha Phaloane stepped down. A report in Lesotho’s Sunday Express in 2009 quoted Motha Phaloane as saying that the most senior male had to take over the chieftaincy. “In Sotho custom, that boy, although he is our child, cannot be our head and therefore cannot be our chief,” he was quoted as saying.
However, in 2010 Tabitha Phaloane was reinstated as the village chief by the late ward chief’s son. It had been determined that Motha Phaloane was, in fact, illegitimate in terms of the Phaloane family line of succession.
Malefetsane Soai (29), who grew up and still lives in Ha-Phaloane village while commuting to an office job in Maseru, said having a female chief was not an issue.
“Tabitha’s mother was my chief throughout my childhood. I did not feel any difference [compared with a male chief]. She was surrounded by male advisers. When there was conflict, they were normally there and the chief would oversee the whole process. They respected her. There was no one there to challenge her chieftainship,” he said. When her daughter Tabitha became chief “we respected her”, Soai said.
Back and forth
Phaloane was again made a commoner in 2011 when relatives appointed yet another man, Ntsane Phaloane, also from a distant village. Phaloane said that because he did not have any experience of serving as chief, she kept up her duties in the village in the meantime.
Kuena Thabane, a lawyer with the Federation of Women Lawyers in Maseru, explained that although in recent times there had been amendments to the Chieftainship Act to “capacitate women married to chiefs to succeed to the office of the chief if that chief had no son, the daughter has no business of succeeding, so that is the crux of the Masupha case [before the constitutional court]”.
“There is a Chieftainship Act, but the general perspective is that chieftainship affairs are governed by the traditions and customs of the Basotho. And in terms of tradition and customs, chieftainship is the domain of the male within any chieftainship family,” said Thabane.
The federation and the research organisation Women and Law in Southern Africa are filing another amicus curiae brief with the Constitutional Court in the Masupha case to ask it to look beyond the Constitution when it rules later this year. “We are emphasising that the Constitutional Court shall also take into consideration international instruments, such as the Convention on the Elimination of all Forms of Discrimination against Women,” said Thabane.
Phaloane said she had to leave Lesotho to get a job for her children’s sake. Normally, she would also live off maize, which she grew on her late father’s land, but erratic weather patterns have meant the failure of Lesotho crops recently.
“I decided to leave. Even when I’m working I get no pay. My kids have nothing to eat, nothing to wear.” One of her sisters died of tuberculosis and the other complained of stomach problems. The children’s fathers had also passed away.
While Phaloane works in Johannesburg, the youngest of her children remain alone in her father’s house. She sends them money for food and school fees and is grateful for her salary. “It is not enough, but they have something to put on the table and I manage to pay for their [school] fees.” She misses her children, whom she phones every day, and she worries about her people in the village to which she hopes to be able to return one day.