148. The Commission now proceeds to consider whether the differential treatment accorded to the first Complainant, in contrast to male heirs is justifiable under the Charter and Maputo Protocol. The Commission recalls its position enunciated in Egyptian Initiative that Article 2 is not violated when the distinction in treatment serves a legitimate aim; and is a necessary and proportionate means to achieve the stated aim in a democratic society. 49 149. In the present case, the Respondent State has not participated in these proceedings and as such no submissions have been made to justify the prima facie the discriminatory effect of S10 of the Chieftainship Act and the decision of the Lesotho Appeal Court. As a consequence, there . no indication that this discrimination pursues a legitimate aim, is nec~ss~ry and proportionate to achieve the intended purpose. The Commission notes given this default by the Respondent State, a presumption of unjustifiability· arises:50 Moreover, the Commission observes and agrees with the practice of it~ contemporaries in other human rights adjudication bodies which has been to hold that references to traditions in a particular cm,m try were insufficient justification for a difference in treatment on grounds of sex .51 is 150. Further to this, the Commission observes that the Respondent State in its domestic proceedings opined that S10 of the Chieftaincy Act was not in discriminatory because the Constitution imposed an exception to the Nondiscrimination clause in the Application of Customary law. The Appeals Court also took the view that there was no discrimination against women since surviving wives of deceased Chiefs were allowed to be Regents until a male heir,attained the legal age of majority. The Commission considers that this view is beside the point in that female first-born children would still be precluded from ascension to chieftaincy. 151. Still having regard to whether or not the discriminatory effect of S10 of the Chieftainship Act is justifiable, the Commission presumes from the Appeal Court decision that the purpose pursued by the Respondent State is to retain the Chieftaincy within the family, and that the first Complainant's ascension would shift succession to the bloodline of her husband. The Commission turns to consider whether SlO of the Chieftainship Act is a necessary and proportionate means to achieve the stated aim in a democratic society. 152. The Commission notes that the unqualified application of SlO is disproportionate to this purpose. The Commission takes the view that just as surviving spouses of deceased Chiefs assume regency with the guarantee that the Chieftaincy reverts to a successor of the bloodline, similarly, exceptional