Previous 25 / 46 Next

which affirms the duty of State Parties "to dismantle ... all forms of discrimination, particularly those based on ... sex". In the case of Purohit and Moore v The Gambia, the African Commission stated that" Article 2 lays down a principle that is e·s sential to the spirit of the African Charter and is therefore necessary in eradicating discrimination in all its guises" 38 109. Section 10 of the Chieftainship Act, the Complainants propose, precludes first-born daughters from succeeding a chief, on the basis of their sex, while it confers differential treatment on women generally on the basis of marital status. This is clear from the decision of the Constitutional Court of Lesotho when it stated, at para 43: "It is .. . well established in our law that married women do have a right to succeed to the position of chief In this regard the distinction is between married and unmarried. However, a further requirement is that the married woman should be married to a chiefly family. It does not matter whether she be the firstborn daughter of a Chief or not, as ,long as $he gets to marry into a chiefly family she will have the right to succee_d, either in her own right or as regent. The regency case and subsequent authorities ha.ve resolved that aspect. It is to be noted that such a wife need 7?-0t come from a chiefly background. In the circumstances the Applicant's position, and chances would improve if she got herselfmarrie_d into another chiefly family. 'To this extent it may be equally or more r;ippropriate for her to claim discrimination on the basis of her status rather than her. sex. Unmarried women cannot be chiefs under an[y] circumstances while men do not have to get married to be chiefs. Furthermore, any woman married into a chiefly family could be a chief while girls or unmarried women can never be because of their marital status." 110. It is the Complainants submission that by attempting to treat the present case as turning on a distinction between married and unmarried women, and suggesting that Ms. Senate Masupha' s position, and chances of succeeding as chief, would improve if she got herself married into another chiefly family, the Constitutional Court of Lesotho failed to realize that the law clearly permits discrimination against first-born daughter of chiefs on the basis of sex and women generally on the basis of marital status. 111. The submission of the Complainant is therefore that discriminatory content of section 10 of the Chieftainship Act is unacceptable and impermissible, regardless of whether first-born daughters and women generally who wish to succeed as chief can get married into chiefly families or not. First-born daughters of chiefs and women generally should not have to marry into a chiefly family to increase their chances of succeeding as chiefs, when first-born sons of chiefs and men generally do not have to t ;;J: ~,&. 11.q;-.-,:)~ additional legal step to become chiefs in Lesotho. ;Jf'"):'i,,cP.~, "' t;f Q I~~)~:(\"'\\ _, n 38 Communication 241/01, Purohit and Moore v The Gambia at para 49 ',~ ~ ~ W;. . w ,, . ~ i:: ~ 't-i,,~ ,,,o'<''lt.: 6: ~~<~-qh"'"1pfic;;',~i'- ox:,v·?'·«-"' \\~".i -:.:;~£001:s~ ' ·....;,~ --:::=;;::~

Select target paragraph3

● ● ●

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

ACHPR Decision

Preview

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
Download View

African Human Rights CLA 2.0

Select target paragraph3

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

Primary Documents

Notifications