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to all matters concerning the interpretation and application of the Convention" 18 . 54. As such, Article 27 and by extension Article 32 of the Maputo Protocol explicitly establish the Comip.ission' s contentious jurisdiction. The pertinent question, however, is whether the Commission continues to exercise contentious jurisdiction over the Maputo Protocol. 55. Article 32 of the Maputo Protocol is designated as a 'Transitional Provision' . According to the Macmillan Dictionary, the term 1transitional 1 refers to 1the process or period of changing from one state or condition to another 119 . A transitional provision, therefore, broadly regulates the coming into operation of an enactment or provision and at times modifies its effect during the period of transition. 56. Article 32 regulates the C!Jming into operation of Article 27 of the Maputo Protocol and modifies its effects during the period of transition. In that, it prescribes transitional arrangements which take effect during the intervening period between the establishment of the Court. Accordingly, until the Court is established, Article 27 of the Protocol may be rea,d as inclusive of the African Commission which may be understood as _granting, the latter the authority to exercise its contentious jurisdiction over the Protocol. However, the Protocol does not elaborate on the term 11 establishment11 or its effects. 57. For-purposes of maintaining a logical sequence, this Commission shall proceed first to determine whether the Court has been established within the meaning of Article 32 before considering the effect of its" establishment" in the event the latter is·confirmed. 58. The term 'estabJishment' is derived from the root word 'establish', which denotes the act of initiating or bringing about20 • The term may also be understood as the state of being recognized and accepted. These two senses of the term' establish', inform the definition of' establishment', which refers to the act of "bringing [something/one] into being on a firm or stable basis" 21 . 18 19 Article 62 of the American Convention. https ://www. macm iIland ict io nary .co m/ d icti o nary/bri ti sh/ transit io naI 20 Id . 21 Id . pg . 11

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Communication 480/14 - Senate Masupha & Others v. the Kingdom of Lesotho

ACHPR Decision

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Type of Document

Decision

Keywords

Equality
Equality Before the Law
Freedom from Discrimination
Inheritance/Succession
Maputo Protocol
Participation in Government
Protection of Family and Vulnerable Groups
Right of Women to Inheritance
Right to Dignity
Right to Health
Right to Property
Women's Rights

Case Head Notes: The First Complainant states that, as the first-born child of the late Principal Chief, she was denied her legitimate right to be appointed as Principal Chief. The denial of the First Complainant's chieftanship occurred at a meeting where the alleged son of the First Complainant's father was appointed as Principal Chief, and another man was appointed as Acting Principal Chief until the son attained the age of majority. The Complainants state that the First Complainant is an active member of her community with a demonstrated desire and capacity to lead, and that the community continues to support her. The Complainants brought the case before the Courts in Lesotho, including the High Court of Lesotho, and state that they have exhausted domestic remedies. The Complainants state that, as provided by Section 10 of the Chieftanship Act of Lesotho, the blanket exclusion of first-born daughters from Chieftanship violates the African Charter and the Maputo Protocol. The Commission found a violation of Articles 2 and 18 of the Charter, and Article 2 of the Maputo Protocol because preventing first-born daughters from inheriting Chieftanship clearly represented differential treatment, as compared to first-born sons, and they stated that there was no legitimate aim for the exclusion and further that, if the objective is to retain the chieftaincy in their deceased father's "bloodline", excluding first-born daughters from Chieftanship is disproportionate to that aim. The Commission found a violation of Article 3 of the Charter and Article 8(f) of the Maputo Protocol because the relevant laws on Chieftaincy in the Respondent State, as well as the constitutional right to freedom from discrimination, are applied differently between men and women and, accordingly, treat them differently with no justification. The Commission found a violation of Article 17 of the Charter and Article 17 of the Maputo Protocol because the discrimination that the First Complainant was faced with denied her the ability to participate in cultural life as the Chief, a role the Commission noted is a nuanced cultural role, and experience. They further noted that being Chief also comprises the formulation of cultural polices, as contemplated by Article 17(2) of the Maputo Protocol, and stated that Section 10 of the Chieftancy Act, and its fortification in the Court of Appeals, denied the First Complainant the right to participate at all levels in the determination of cultural policy. Noting the significance of Chieftancy, and that Chiefs have a role in promoting welfare and lawful interests and maintaining public safety and order, the Commission stated that traditional leadership constitutes government under Article 13 and, accordingly, they found the Respondent State in violation of Article 13 of the Charter and Article 9 of the Maputo Protocol because they have discriminated against women, and prevented the First Complainant's participation in government. The Commission found a violation of Article 1 because the violation of any provision of the Charter automatically means a violation of Article 1 of the Charter. The Commission found no violation of Article 5 of the Charter and Article 3 of the Maputo Protocol because they were not convinced that the disputed chieftancy attached to the First Complainant's humanity, and therefore were not persuaded that denying her chieftancy would remove the dignity inherent to her humanity. They also state that there is not evidence that the First Complainant's personal suffering or humiliation reached the minimum level of intensity or severity, set out in jurisprudence, to establish cruel, inhuman or degrading treatment. The Commission found no violation of Articles 14 and 16 of the Charter and Articles 5, 14, and 21(2) of the Maputo Protocol because they stated that the Complainants did not demonstrate how Section 10 of the Chieftancy Act prevented the First Complainant from succeeding the property of her deceased father, and because the Complainants have not established what breach arises from the statistics they submitted related to HIV/AIDS. The Commission recommended that the Respondent State review the Chieftanship Act to put women on equal terms with men, that the Respondent State facilitate the development of customary practice to include women, on equal consideration with men, for consideration in customary leadership roles and requested that the Respondent State take further action to make communities aware of the legislative changes and allocate resources to ensure the equality of women.

Country

Lesotho

Outcome: Decided on Merits

Year Decided: Mar 8, 2024

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 1: General Obligations
ACHPR 13: Right to Participate in Government
ACHPR 14: Right to Property
ACHPR 16: Right to Health
ACHPR 17: Right to Education
ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 18.3: Protection of Rights of Women and Children
ACHPR 2: Freedom from Discrimination
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment

Rights Violated (ACHPR Provisions)

ACHPR 1: General Obligations
ACHPR 13: Right to Participate in Government
ACHPR 17: Right to Education
ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 18.3: Protection of Rights of Women and Children
ACHPR 2: Freedom from Discrimination
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law

Rights Not Violated (ACHPR Provisions)

ACHPR 14: Right to Property
ACHPR 16: Right to Health
ACHPR 5: Cruel Inhuman and Degrading Treatment

Duration of Procedure

Sep 10, 2014 ~ Mar 8, 2024

Country Geolocation

Latitude: -29.715041330987496

Longitude: 28.427124023437504

Country Geolocation (linked ACHPR Decision): Lesotho

Primary Documents

Senate Masupha & Others v Lesotho.pdf
English
ML TOC
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African Human Rights CLA 2.0

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Communication 480/14 - Senate Masupha & Others v. the Kingdom of Lesotho

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