However, the Constitutional Court maintains that the ruling is non-discriminatory since Lesotho’s customary law states that daughters, based on their sex cannot succeed their fathers to chieftainship.
Masupha, daughter of Chief Ha ‘Mamathe, brought the case to court after her brother and half-brother vied for the position of chief after their father died. As the first-born child, Masupha believes the role is rightfully hers to inherit. However, Section 10 of the Kingdom's Chieftainship Act only allows men to inherit the role of chief.
In its judgement, the court also relied heavily on provisions of Article 18 of the 1993 Constitution of Lesotho that allows discrimination, provided it is based on culture and custom.
In 1995, Lesotho ratified the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), with the exception however of Article Two, which relates to inheritance and succession to the throne.
Local and international gender equality activists have been calling for full commitment to CEDAW and the repeal of this section of the Constitution, as many believe it has no place in a modern Lesotho that seeks to recognise all women as equal citizens of the country.
Lesotho also signed and ratified the SADC Protocol on Gender and Development, which requires member states to commit to 28 targets for achieving gender equality by 2015. The SADC Gender Protocol requires member states to enshrine gender equality in their constitutions and to ensure that this is not undermined by any tradition, custom or practise.
In compliance with the Protocol, Lesotho enacted the Legal Capacity of Married Persons Act 2006, which removes men's exclusive marital power and gives women the same rights as men. The country also incorporated gender equality in the National Assembly Electoral Act 2011, the Local Government Elections Act 1998 and the Land Act 2010.
According to the SADC Gender Protocol Barometer, published by Gender Links and the Southern African Gender Protocol Alliance, with 49% women in local government following the 2011 elections, Lesotho continues to have the highest proportion of women in any area of political decision making in the SADC region.
Furthermore, Lesotho’s 2003 Sexual Offences Act protects women from sexual abuse; the 2008 Companies Amendment Act allows women to be directors of companies and the 2008 Lesotho Bank Amendment Act removes the minority status of women when seeking credit and making financial transactions and investments.
Thus, the court’s ruling comes as a shock. It contradicts all these strides in achieving gender equality and goes against a regional trend to uphold the rights of women. Other countries such as South Africa, Tanzania, Kenya, Nigeria and Ghana have repealed or amended laws that deny women the right to inheritance and succession to chieftainship based on gender.
Based on this judgement, it is clear that while Lesotho is signatory to regional and international instruments, customary laws still prevail. It also highlights the other customary practices, specifically those regarding citizenship and employment that still stand in the way of gender justice, reminding us that women’s struggle for equality continues.
Lesotho and other SADC countries need to commit unconditionally to ending inequality and all forms of discrimination against women. SADC states need to address the contradictions between progressive Constitutions that have provisions for gender equality on the one hand, but still bow to “claw back” clauses and customary laws on the other.
It is also time to give ordinary Basotho women and men an opportunity to voice their opinions on inheritance, chieftainship and on how they view the space for their daughters in modern-day Lesotho. Culture and custom evolves with time and should not be exempt from challenge and critique, especially if aspects of it perpetuate the minority status of women.
Advocate ‘Mabolae Mohasi is the former Coordinator of the Democracy and Human Rights Commission within the Lesotho Council of NGOs and is currently a Consultant at Pholo & Partners Consultants. She writes in her individual capacity. This article is part of the Gender Links Opinion and Commentary Service that provides fresh views on everyday news.