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Lesotho: Constitutional Court Denies Women the Right to Inherit Customary Titles

(May 20, 2013) On May 16, 2013, Lesotho’s High Court (Constitutional Division) upheld a provision in the Chieftainship Act giving the exclusive right to inherit the customary title of Chief to the firstborn male offspring, denying female children the same rights on the basis of gender. (Press Release, Southern Africa Litigation Centre, Lesotho Court Fails Women by Denying Them the Right to Succeed to Chieftainship (May 16, 2013).) The judgment may be appealed to the highest court in the country, the Court of Appeal. (Id.)

Case Background

The petitioner, Senate Masupha, is the firstborn, female child of a late principal Chief, David Masupha, who died in 1996. (Id.) Upon his death, because there were no firstborn males in his immediate family, Masenate Gabashane Masupha, who was the late Chief’s wife and the petitioner’s mother, was appointed as a caretaker Chief in accordance with the Chieftainship Act. (Id.; Chieftainship Act 22 of 1968, §10(4), XIII THE LAWS OF LESOTHO (1968).) Following the death of the late Chief’s wife in 2008, his younger brother instituted a claim for inheritance of the chieftainship before a magistrate’s court, and his claim was challenged by the late Chief’s son from a second wife and that son’s mother. (Lesotho Constitutional Court to Hear Chieftainship Case Tomorrow, Southern Africa Litigation Centre website (Aug. 26, 2012).)

Senate Masupha, who had not been included in the proceedings before the lower court, then intervened and petitioned for a change of venue to the Constitutional Court, so that she could challenge the constitutionality of the provision in the Chieftainship Act under which she was excluded from laying claim to her father’s seat. (Id.)

Legal Arguments

Masupha argued that the Chieftainship Act does not necessarily exclude her from inheriting the chieftainship. (Masupha v The Senior Resident Magistrate for the Subordinate Court of Berea and Others: A Case Summary, Southern Africa Litigation Centre website (last visited May17, 2013).) The provision in question stated that “[w]hen an office of Chief becomes vacant, the firstborn or only son of the first or only marriage of the Chief succeeds to that office … .” (Chieftainship Act, §10(2).)

This appeared to be a compelling argument, given that the Chieftainship Act softened the language on eligibility from what was used in the previously applicable laws, the Laws of Lerotholi. This superseded law did not leave any doubt that women were to be excluded from consideration to inherit chieftainships, stating “[t]he succession of chieftainship shall be by right of birth: that is the first born male child of the first wife married: if the first wife has no male issue then the first born male child of the second wife married in succession shall be the chief.” (I THE LAWS OF LEROTHOLI IN BASUTHOLAND [Lesotho’s name until independence in 1966]) (Witwatersrand University Press, 1953); PATRICK DUNCAN, SOTHO LAWS AND CUSTOMS: A HANDBOOK BASED ON DECIDED CASES IN BASUTHOLAND TOGETHER WITH THE LAWS OF LEROTHOLI (Oxford University Press, 1960).) The Chieftainship Act repealed this language and replaced it with the phrase “the firstborn or only son.” (Chieftainship Act, § 40.)

Masupha alternatively argued that if the above provision of the Chieftainship Act in fact excludes her from eligibility to inherit her father’s office, it should be struck down because it violates multiple provisions of the Constitution. These are section 2 (on the supremacy of the Constitution), section 4 (on fundamental rights and freedoms), section 18 (on freedom from discrimination), and section 19 (on the right to equality before the law and the equal protection of the law). (Southern Africa Litigation Centre as Amicus Curiae, Senate Gabasheane Masupha v. His Worship, Senior Resident Magistrate for the Subordinate Court of Berea & Others, Constitutional Case No. 5/2010, at 8 (Jan. 12, 2012); Constitution of Lesotho (Apr. 2, 1993, as amended in 2001), World Intellectual Property Organization website.)

In their rebuttal, the respondents argued that the language in the Chieftainship Act clearly excludes women, but it does not violate the Constitution because the office is a customary institution and the Constitution makes an exception for discriminatory customary laws. (Masupha v The Senior Resident Magistrate for the Subordinate Court of Berea and Others: A Case Summary, supra.)The Constitution states that the constitutional provision on freedom from discriminatory laws “shall not apply to any law to the extent that that law makes provision …for the application of the customary law of Lesotho with respect to any matter in the case of persons who, under that law, are subject to that law … .” (Constitution of Lesotho, § 18.)

Court Decision

The Court dismissed Masupha’s petition that the Chieftainship Act provision preventing female offspring from inhering chieftainships, section 10(2), is discriminatory and therefore unconstitutional. (Court Rules Lesotho Princesses Can’t Be Chief, AFP (May 16, 2013).) The Court did not base its decision on the respondents’ argument that the constitutional clause of discrimination was inapplicable; instead it found that the Chieftainship Act was not discriminatory.

The Court used the provision in the Chieftainship Act that allows the senior wife to inherit the title as a caretaker if there are no living first-born males from any of the deceased’s marriages as a reason why the Act is not discriminatory toward women. (Chieftainship Act, § 10(4).) The Court stated, “[o]nly a male first born of the chief may take up the chieftainship failing which if the chief has no other son the wife of the chief may take over the chieftainship … . This shows that women are not discriminated against but have to be in a certain position to take over the vacant position.” (Court Rules Lesotho Princesses Can’t Be Chief, supra.)

When a wife succeeds her husband as a caretaker, as in this case in which Masupha’s mother became a chieftain following the death of her husband in 1996, the right to inherit reverts back to the male line of the family upon the death of the female chief. (Chieftainship Act, § 10(4).) In this instance, “the eldest legitimate surviving brother of the male Chief who held the office last before the woman, succeeds to that office or failing such an eldest brother, the eldest surviving uncle of that male Chief …” takes the office. (Id.)