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168. In Equality Now, the Commission has interpreted the right to dignity as follows: " ... Article 5 of the Charter guarantees that every individual shall have the right to respect of the dignity inherent in a human being. Human dignity is the fountain of all other rights. At the core of human dignity is the idea and recognition that a human being has unique worth, value and significance that is innate, and not acquired. It also entails that a human being is a moral agent possessed ·with the conscience and personal volition to decide what happens to his or her body. The right to respect of dignity is a guarantee that a human being should not be subjected to acts or omissions that degrade or humiliate him or her. " 169. The Commission notes that the Complainants have not established how the First Complainant's dignity has been stripped by the acts complained of. The Commission is not convinced that the disputed Chieftaincy attaches to the Complainant's humanity, meriting the conclusion that . without it, the recognition to the dignity inherent to her humarity ceases. 170. Similarly, the Commission is not con,fident that the Complainant's submissions or indeed her circumstances in g~neral invoke a violation of cruel, inhuman and degrading treatment. The Commission's jurisprudence has established the scope of inhuman .and degrading treatment, which does not only include physical but also psychological suffering. In International Pen and Others v. Nigeria, the Commission held that: Article 5 of the African Charter prohibits not only torture, but also cruel, inhuman or degrading treatment. This includes not only actions which cause serious physical or psychological suffering, but which humiliate the individual or force him or her to act against his will or conscience55 171. The Commission has held previously in Curtis Doebler v Sudan that: "While ultimately whether an act constitutes inhuman degrading treatment or punishment depends on the circumstances of the case. The African Commission has stated that the prohibition of torture, cruel, inhuman, or degrading treatment or punishment is to be interpreted as widely as possible to encompass the widest possible array of physical and mental abuses"56 (the emphasis is ours) 172. The Commission observes that a fundamental element in proving allegations of cruel, inhuman and degrading treatment is showing the compromise of integrity, either mental or physical, put differently, evidence of ill-treatment. ~~°"" '1,0\ . r,":'•i· ,1:.cF<n 4f1l,qJ- 0 / / ,-,.: 'ld" 11.:., ss Communications 137/94, 139/94, 154/96 & 161/97, para 79 56 Co mmunication 236/2000, para 37 ,. ::; ,{ 8 '. - ?, ~~ O,i, ,t.,:,.l f t) AU-UA ~<2.i \ w 0 f·\\1 ~: J ~~':' <:,Q 0 0 .<1-"}?,eW1N~ "' •"'" ...1'-i:t: -.j? ; ~ I fl 1i

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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
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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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