arrangements may be employed to ensure the first Complainant as well as any
other female heir may be succeeded by someone from their father's bloodline.
The Commission therefore takes the view that the discriminatory law and
practice of excluding eldest-daughters from succession is disproportionate to
the objective of retaining the chieftaincy in their deceased father's bloodline.
153.
It is prudent to revisit the findings of the Commission in Constitutional
Rights Project and Others v Nigeria to the effect that:
The justification of limitations must be strictly proportionate with and
absolutely necessary for the advantages which follow. Most important, a
limitation may not erode a right such that t~e 'right itself becomes illusory. 52
154.
In view of the foregoing, the Commission considers that the operation
of S10 of the Chieftainship Act and its interpretation in the decision of the Court
of Appeal unjustifiably discriminates against the 1st C:omplainant and eldest
daughters of chiefs broadly speaking, on the basis of their sex and gender.
Further, the Commission takes the view that its continued application and
consistent reiteration as illustrated by the C9urt of Appeal's judgment is
compelling evidence of the Respondent State's failure to eliminate all forms of
discrimination against women in the Kingdom of Lesotho as observed in
Article 2 of the Maputo Protocol.
155.
Accordingly, the Commission finds that the Respondent State has
violated Articles 2 and 18(3) of the Charter and Article 2 of the Maputo Protocol.
Alleged Violations of article 3 .of the African Charter and article B(f) of the Maputo
Protocol
156.
Article 3 of the Charter provides for the right to equality as follows:
"(1) Every individual shall be equal before the law.
(2) Every individual shall be entitled to equal protection of the law."
157.
The Commission observes that article 8 of the Maputo Protocol further
outlines the steps States must take to ensure women's fundamental right to
equality:
52
{2000) AHRLR 227 {ACHPR 1999), para 42