An interesting case regarding equality of women under customary law was heard and decided on during the latest sitting of the Lesotho Appeal Court. Essentially the claimant, the firstborn child of a chief, claimed that her constitutional rights were violated by the provisions of the Chieftainship Act 22 of 1968, as she was denied the opportunity to succeed her father at his death. Instead, he was succeeded by a younger male sibling.
THE FACTS AND DECISION
In the appeal brought before the Court of Appeal of Lesotho, the appellant contended that Section 10 of the Chieftainship Act violated her constitutional rights as set out in Section 18 (freedom from discrimination) and Section 19 (right to equality before the law and the equal protection of the law) of the Constitution of Lesotho.
Section 18(1) of the Constitution provides that, “subject to subsections (4) and (5), no law shall make any provision that is discriminatory either of itself or in its effect.” Subsection (4)(c) states that, “Subsection (1) shall not apply to any law to the extent that law makes provision… for the application of the customary law of Lesotho with respect to any matter in the case of persons who, under the law, are subject to that law…” Section 154(1) of the Constitution defines “customary law” to be “the customary law of Lesotho for the time being in force subject to any modification or other provisions made in respect thereof by any Act of Parliament.” Upon its analysis of the applicable constitutional provisions, the Appeal Court determined that the customary law as contained in Section 10 of the Chieftainship Act was a codification and encapsulation of the material provisions of customary law as established in the Laws of Lerotholi for succession to chieftainship.
The court noted that Section 10 of the Chieftainship Act does not expressly exclude a woman from being a successor to a deceased chief, but it does prioritize the male primogeniture rule. As a matter of fact, it has long been accepted in case law that a woman could, according to customary law, succeed to chieftainship in their own right provided that it is not in conflict with the primogeniture rule. Subsequently, it was determined that Section 18(4)(c) of the Constitution creates a permissible limitation to the right against discrimination by prioritizing male primogeniture. Accordingly, it was held that any “differentiation” between male and female successors at customary law was taken up in the Act to ensure the efficient regulation of communal affairs governed by customary law.
As far as Section 19 was concerned, adjudication would require investigating the rational connection between the discrimination and the legislative purpose of Section 10 of the Chieftainship Act – an investigation which has already affirmed the constitutional sanctioning of such discrimination. The court was therefore of the opinion that the inequality the appellant suffered was the direct result of the constitutionally sanctioned discrimination in Section 18(4)(c). Short of Parliament modernizing the provisions contained in Section 10 of the Chieftainship Act, the inequality and discrimination the appellant has been subjected to is justifiable in terms of Section 18(4)(c) of the Constitution. The appeal was dismissed.
The finding that Section 10 of the Chieftainship Act is not unconstitutional seems founded on sound logic, but it evokes a sense of unease because it contradicts the universal principle of equality by expressly endorsing discrimination on the basis of gender. A Constitution is, after all, in essence a liberating document aimed at addressing, rectifying and preventing inequalities endorsed by arbitrary practices. The effect of Section 18(4)(c) of the Constitution is that where a person is subject to customary law, which is discriminating in effect, the discrimination endorsed by the section is not unconstitutional. Section 18(4)(c) appears to explicitly endorse cultural relativism – the idea that different sets of norms and values can exist alongside each other. By explicitly limiting the application of its equality provisions to matters regulated by customary law, the Constitution explicitly recognizes that different norms will have different values when regard is had for the cultural context within which they operate.
Section 154 of the Constitution renders Parliament the custodian of customary law. Customary law can only be amended by Parliament, and the task of evolving or retaining customary law practices thus rests with the elected members of Parliament. It therefore seems that legislation endorsing customary law is not subject to constitutional scrutiny, at least not as far as it concerns discriminatory customary practices.
Interestingly, in an issue of the Lesotho Times (July 17 – 23, 2014) the Director of Chieftainship, Chief Mikia Molapo, took a stance on the issue of whether daughters should succeed their fathers as chief. Whilst he acknowledges that customs ought not to be static in the fact of change and constitutionally driven development, he emphasized that changing the custom that daughters are not allowed to succeed their fathers must be weighed against the “preparedness of people to change such practices and the repercussions of the adjustment”. According to Chief Molapo, the custom that daughters cannot succeed their fathers as chief is a practical mechanism to ensure that the person who is appointed as chief can bear the weight of the responsibility that comes with the position. Chief Molapo pointed out that it is custom for a daughter who marries to take the name of the man’s family, and that if daughters are allowed to be chief they will have to forsake the family name upon marriage. This creates the impression that the right to chieftainship is inextricably linked maintaining the family name by those who are appointed as chief. As a further issue as to why daughters cannot succeed their fathers as chief, Chief Molapo stated that should the daughter become chief the custom of paying lobola will lose its value. “To further complicate the matter, culturally, it is a taboo for woman to pay lobola for their husbands. As a result, the son-in-law cannot leave his family and live with his wife’s family in the same sense as that of a woman leaving her family to become a member of her husband’s family.” Whether these are valid arguments for maintaining the customary practice that daughters cannot succeed their fathers is unclear, but without insight into the foundational cultural insights underlying the practice little can be said about the validity of these arguments. It is worth noting that the issue has sparked dialogue among the Basotho, and it remains to be seen whether anything will come therefrom. It does seem that the way to effect any change, is to lobby Parliament.