Princess Senate Masupha has lost her case before the Lesotho Constitutional Court. She sought to be named chief as the eldest daughter of a chief., a photo by Pan-African News Wire File Photos on Flickr.
Judges find that banning daughters from inheriting positions is not a discriminatory practice.
24 May 2013 00:00 - Eva-Lotta Jansson
South African Mail & Guardian
In a case brought by Senate Masupha, the first-born female child of a chief, Lesotho's Constitutional Court has reiterated that daughters cannot succeed their fathers to become chiefs. The court said last week that not allowing daughters to inherit the role, based on Lesotho's customary law, was not discrimination and therefore not unconstitutional.
"It is our view that the applicant cannot be said to be discriminated against on the basis of her sex, but even if that were the case, it does not violate the constitutional provision to the extent that Section 10 of the Chieftainship Act may be declared unconstitutional," said the panel of three Lesotho High Court judges sitting as a Constitutional Court, in its ruling delivered on May 16.
Lesotho does not have a Constitutional Court, but instead convenes a panel of judges from the high court when issues of constitutionality are raised. The verdict can now be appealed in the country's regular appeals court.
Speaking from Rome, where she is the acting ambassador for Lesotho, Masupha said: "I'm disappointed with the ruling. I didn't expect it. I believe that justice has to be done."
At the crux of the case is a section of the Kingdom's Chieftainship Act, encompassing customary law in Lesotho, which allows only males to succeed their fathers to chieftainship. The traditional chieftaincy structure has its roots in a system devised by King Moshoeshoe I, who founded Lesotho in the late 1800s. The chieftaincy is composed of the king, currently King Letsie III, 22 principal chiefs, and ward and village chiefs.
Customary law in Lesotho says that while wives can become "caretakers" of the chieftainship until a male heir takes over, or if their chief husbands become ill or die, women cannot, on the basis of their sex, inherit the role or succeed to chieftainship.
In the case brought by Masupha, her mother was appointed "caretaker" of the chieftainship when her father died. Then when her mother died, her brother and half-brother vied for the chief's position. Masupha then intervened, wanting to inherit the position as the chief's first-born child.
Kuena Thabane, a lawyer, and head of the Federation of Women Lawyers in Lesotho, said the federation was disappointed with the ruling. "This judgment takes us back to the stone age, referring to customary law and reiterating what is written in the books of law on male dominance," she said on the phone from Maseru. "Customary law is supposed to be dynamic and not written in cement."
The federation filed an amicus curiae brief supporting Masupha's case. Together with Masupha's lawyers and the other parties supporting her case, a decision had been made to appeal, said Thabane. "Since we still have room to appeal, we intend going on appeal over legal issues that were raised by the judgment."
The judgment went against the trend in the region to uphold the rights of women and was worth appealing, said Priti Patel, deputy director of the Johannesburg-based Southern Africa Litigation Centre (SALC), which also filed an amicus curiae brief in the case.
"I think what they are saying is that the fact that daughters can't succeed to chieftainship is not unconstitutional," Patel said about the ruling.
This is contrary to moves in other countries in the region to amend or repeal laws that explicitly promote gender discrimination, according to the centre. In South Africa the Constitutional Court 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.
The Lesotho court did consider arguments along these lines, but were not swayed by them, according to the ruling: "It coud [sic] be argued that Lesotho is in fact lagging behind in its policies of equality between the sexes.
That may be a fair comment; but it has equally not abolished the death sentence on the basis of the right to life; neither does this country consider itself bound by the principles of the rights of gay people to the extent of allowing same-sex marriages. Many countries in the world have not yet developed to that stage," said the ruling. "Each country must be allowed to make its choices in this respect."