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Customary law provides for male succession only
The case demonstrates how customary practices can hinder attainment of equality – SALC

The Constitutional Court in Lesotho has reserved judgment in the case of a Mosotho woman, Senate Masupha, who is challenging succession to chieftainship under customary law.

Masupha’s petition says the Chieftainship Act that only provides for male succession to chieftainship, is discriminating her on the basis of her sex to succeed as chief of her village; yet the country’s Constitution provides for non-discrimination based on sex.

Masupha, a single woman in her 30s who currently lives in Rome, Italy, where she works for the Lesotho Embassy, is suing her half-brother and her uncle among others for the right to succeed her father as chief of her village.

It is the first case of its kind in Lesotho. Masupha’s father married her mother – his first marriage – and bore a girl child, Senate. Masupha’s father subsequently entered into a relationship – whose nature is in dispute, with some parties arguing that it is a second customary law marriage and others claiming that it cannot be considered an actual marriage- and bore a son.

When her father died, Masupha’s mother took over as Chief as permitted under Lesotho’s Chieftainship Act that a wife can succeed her husband and upon her death it reverts to the eldest son.

What is clear under the Chieftainship Act is that a daughter, regardless of whether she is the eldest, cannot succeed to chieftainship. It is this blanket ban that Masupha is challenging because she says it violates her right to equality.

Commenting on the case, Priti Patel, Deputy Director and HIV Programme Manager, Southern African Litigation Centre (SALC), said it demonstrates how customary laws and practices can be a hindrance to the attainment of equality.

“This case cuts to the heart of women’s rights and cultural equality in Lesotho. It also magnifies deeply embedded notions of the role of women within society. During oral arguments in the matter, the bench as well as counsel for the half-brother and uncle expressed their anxiety about this possible change. They raised concern specifically that if the woman married and had children, who would succeed her.

“Yet outside the courtroom numerous people indicated that they knew of instances in Lesotho where women had succeeded to chieftainship at the behest of the community. They have indicated that this conundrum is not only resolvable but is already being addressed within communities.

“Lesotho is not the only SADC country with discriminatory laws in place. Despite most SADC countries having constitutions that enshrine non-discrimination and non-discrimination based on sex, as well as provisions for equality before the law, a number of laws remain on the books which explicitly discriminate against women.

“In Botswana, there is a case currently before the High Court where three sisters are suing their nephew for the right to inherit the family home that according to customary law devolves to the youngest son and his heirs, not the youngest child, which in this case is a daughter. The Attorney General argued that though this law may discriminate against women, such discrimination should be allowed to stand because Botswana society is not ready to embrace equality.

“If such has been the thinking of courts around the world, then it is a wonder that we have achieved equality in law with respect to race relations in America, or equality for same-sex relationships in South Africa. It also fundamentally misinterprets the role of the court, which is to uphold the constitution and rule of law, not to cater slavishly to public opinion.

“But the unequal status of women in law throughout the region is not due solely to entrenched discrimination. Indeed, in other sectors such as HIV, great gains towards ending discrimination in law have been made. Why is that not the case with respect to women?

“Some of the explicitly discriminatory law continues in part because many SADC countries have claw back clauses in their constitutions. This means that though there is protection against discrimination on the basis of sex or gender, this protection does not extend to matters related to customary law. It also doesn’t extent to matters of personal law such as inheritance, divorce, adoption and burial. This makes it harder for successful challenges.

“Regardless of these legal hurdles, which are arguably surmountable, very few women have been willing to even bring such cases in courts. This is due in part to the fact that few women who are affected are aware of their rights, and even if they are, few if any, have access to lawyers who can bring such cases on their behalf.

“At the just ended 67th UN General Assembly, the UN Secretary General Ban Ki-Moon emphasized at a side event on Women’s Access to Justice the need to invest more to help women overcome their obstacles to justice; repeal laws that discriminate against women and girls; and to dedicate at least 15% of overall rule of law funding to breaking down the barriers to justice for women.

“This is where strong social movements of which we have seen in the region around HIV and previously in South Africa around women’s rights can step in. They can provide support to women who are willing to challenge these laws and construct a broader campaign to address the unequal laws through parliamentary structures. However, these movements remain largely absent in southern Africa.

“In Botswana, where the challenge to an unequal customary law rule is one of the first cases of its kind in the High Court, the notable absence of women’s rights organisations, or even women apart from those involved in the case, is of concern.

“If there is to be real change in the status of women in southern Africa, there will have to be serious investment both financial and human in building grassroots movements.

There is a need to identify those issues that affect women most and ensuring a women-led movement to push for changes.

“Otherwise, Masupha will remain one of the lone voices pushing for equality for all,” Patel observed.


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