Previous 39 / 46 Next

"The right to take part in cultural life vests in the individual and should be protected as such by states parties ... It refers not only to the enjoyment of cultural activities and access to materials but to participation, policy-making and artistic freedom. "61 184. The Guidelines also indicate that Article 17(2) imposes an obligation on States party to the Charter to: a. Ensure participation at all levels in the determination of cultural policies and in cultural and artistic activities; 62 185. The Commission also takes note of the United Nations' General Comment N o.21 on the Right of everyone to take part in cultural life interpreting Article 15(1)(a) of the,Internahonal Covenant on Economic, Social and Cultural Rights. Under the discussion on Core Obligations, General Comment No. 21 stipulates thatthe right to-Cultural life enjoins States: (a) To take legi,slative and any other necessary steps to guarantee nondiscrimination and gender equality in the enjoyment of the right of everyone to take part in cultural life; (b) To respect the right of everyone to identify or not identify themselves with one or more communities, and the right to change their choice; (c) To respect and protect the right of everyone to engage in their own cultural practic;es, while respecting human rights which entails, in particular, respecting freedom of thought, belief and religi,on; freedom of opinion and expression; a person's right to use the language of his or her choice; freedom of association and peaceful assembly; and freedom to choose and set up educational establishments; (d) To eliminate any barrie_rs or obstacles that inhibit or restrict a person's access to the person's own culture or to other cultures, without discrimination and without consideration for frontiers of any kind; (e) To allow and encourage the participation of persons belongi,ng to minority groups, indigenous peoples or to other communities in the design and implementation of laws and policies that affect- them. In particular, States parties should obtain their free and informed prior consent when the preservation of their cultural resources, especially those associated with their way of life and cultural expression, are at risk. 63 186. The Commission recalls its findings above that the exclusion of the First Complaint succeeding her deceased father's throne, unjustifiably discriminates her on the basis of sex and gender. The very premise of her discrimination denies her, her ability to participate in the cultural life of her community particularly as the Chief. The Commission considers that the exercise of the role of Chieftaincy entails a nuanced cultural role and experience, which the F~t.:::::-::..,. . 61 h~~:r~::::-:~~, -<i,''o,:~\ /J,i ,~- (2011) (https://ac hpr,au,int/ind ex,p hp/en/node/871 ) Para 73, page 38 ~ , Para 76(a) page 38 ((~ 62 63 (2009 ) E/C12/GC/21 Para 55 (a), page 15 ,'g 8 1 t~ ~ 1\ ,:~.,, ' t1,ii,\1 ~!} 04 , 3W·UA ~I; [< I l!5 ~c,I'~l/.f'1/ ~o 4 ~ICA1NI:- 0~ ,._..,,11 .;:_ll?f ET nr:<; l'o/,~;,,; ~,,

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