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Complainant is deprived of under the status quo. Being the Chief also comprises not only participation in the culture on a different level but also the participation in the formulation of (cultural) policies as imagined by Article 17(2) of the Maputo Protocol. 187. The Commission recalls the scope and content of the rights protected in Article 17(2) in the analysis above, most pertinently, ensuring indiscriminate access, and the elimination of barriers to the enjoyment of and participation in cultural life and the formulation of policy. The Commission considers that S10 of the Chieftaincy Act and its fortification in the Court of Appeals denies the First Applicant her right to live in a positive cultural context and participate at all levels in the determination of cultural policy. 188. The Commission notes the views of the UN Committee on Economic, Social and Cultural Rights in deter~ining what constitutes a violation the right: "To demonstrate compliance with their general and specific obligations, States parties must show that they have taken appropriate measures to ensure the respect for and protection of culturalfreedoms, as well as the necessary steps towards the full realization of the right to talfe part in cultural life within their maximum available resources. States parties must also show that they have guaranteed that the right is enjoyed equally and without discrimination, by men and women." 189. The Commission takes the view that the Respondent State's observance of male primogeniture is a violation of the rights protected under Article 17(2) of the Charter arid 17 of the Maputo Protocol. Alleged violations of article 13 of the Charter and article 9 of the Maputo Protocol 190. Article 13 of the African Charter provides, in the relevant part: "1) Every citizen shall have the right to participate freely in the Government of his country, either directly or through freely chosen representatives in accordance_ i,uith the provisions of the law. 2) Every citizen shall have the right of equal access to the public service of his country." 191. Article 13 of the African Charter is affirmed and enriched through Article 9 of the Maputo Protocol, which provides: "Right to Participation in the Political and Decision-Making Process - ------ . ?:'°',.,CJ_~ H l / M , • ~ 1) Stat-es Parties shall take specific positive action to promote par '1ijf;._~71Jer 11~,""r•io1,,0 «, ,.., s governance and the equal participation of women in the political/; o~ -~~... "°or,.,. tl ' 3 . \l ~'.::! cc:: ci z :(~)'\ ~ \':i.. t\)<!}., if\ ,AU-UA 39 ,: '!';.; ::/· Is" ~;,. ,rS,J ~-- t> ''-o ,,,,,.,.,_o 0,i, . . . _ _ -~ C; ,11 ,~...,,. ,;:::._11,,l: H DES f'i:"'_,:;,;,i

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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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