Source: OSISA
In a landmark case starting on February 22nd, the Lesotho Constitutional Court will consider the constitutionality of section 10 of the Chieftainship Act, which arguably denies women the right to succeed to chieftainship solely on the basis of their gender.

The case was brought by Senate Masupha - the first-born child of a chief. She is arguing that if section 10 is interpreted to only provide for male succession to chieftainship then it violates her rights to equality and freedom from discrimination under the Lesotho Constitution.

The case is being challenged by 11 others, including those who believe they have a claim to the chieftainship and the Attorney-General, who argues, in part, that chieftainship is a customary law institution and thus is not protected under the right to be free from discrimination guaranteed under the Constitution.

The Lesotho Constitution does provide for freedom from discrimination, but like many other constitutions in southern Africa, it carves out an exception in matters involving the application of customary law. It also provides separately for the right to equality and equal protection of the law.

The Southern Africa Litigation Centre (SALC) has intervened in the matter as amicu curiae - friends of the court - arguing that not only does section 10 violate the rights to equality and freedom from discrimination under the Constitution, but that it also violates Lesotho's international and regional law obligations.

This will be the first time the Lesotho Constitutional Court will address whether denying women the right to succeed to chieftainship violates their fundamental rights enshrined in the Constitution. The decision - expected in late 2012 - will have far reaching implications on the rights and status of women in Lesotho

Factual and procedural background

The undisputed facts are as follows: Senate Gabashane Masupha is the first-born child of the late Principal Chief David Gabashane Masupha and his first wife, Chieftainess Masenate Gabashane Masupha. When Principal Chief Masupha passed away in August 1996, his first wife, Chieftainess Masupha became chief as provided for under section 10(4) of the Chieftainship Act. The Chieftainess passed away on 6 December 2008, leaving the position of chief open.

The younger brother of Principal Chief Masupha, Sempe Gabashane Masupha, instituted proceedings in the lower court seeking to succeed to chieftainship upon the death of Chieftainess Masupha. This claim to succession was contested by Lepoqo David Masupha, the son of Principal Chief Masupha and his second wife. The applicant was neither cited in the proceedings nor given notice of the proceedings. However, as she was made aware of the proceedings, she made an application for permission to intervene to have the matter referred to the High Court as the case raised fundamental constitutional issues.

Substantive Legal Arguments

The parties raise a number of procedural concerns, but the primary legal dispute is whether section 10(2) of the Chieftainship Act provides for succession of daughters to chieftainship and if not, then whether such a denial violates the Constitution.

The applicant argues that as the first-born child of a chief, she is entitled to be considered for succession to chieftainship in terms of section 10(2) of the Chieftainship Act read in light of the non-discrimination guarantees enshrined in the Constitution. She furthermore argues at customary law there was no rule denying women the right to succeed to chieftainship. The applicant also argues that if section 10(2) is read to deny women the right to succeed to chieftainship, then it would violate the following provisions of the Constitution: section 4, guaranteeing fundamental human rights and freedoms; section 18, guaranteeing freedom from discrimination; and section 19, enshrining the right to equality and equal protection.

In response, the respondents argue that section 10(2) clearly prohibits women from succeeding to the chieftainship as it provides for the "first born or only son". They argue that chieftainship is an institution of customary law. Thus, excluding women from succeeding to chieftainship is not unconstitutional because section 18 providing for the freedom from discrimination does not extend to matters involving the "application of the customary law of Lesotho".

The Southern Africa Litigation Centre (SALC) intervened in the matter as amicus curiae - friends of the court. In its submissions, SALC argues that section 10(2), if interpreted to deny women the ability to succeed to chieftainship, violates the Lesotho Constitution as well as Lesotho's international and regional obligations, including the rights to be free from discrimination and equality. In particular, SALC argues that section 10(2) is statutory law, not customary law and thus does not fall under the permissible exception to the prohibition of discrimination provided under section 18. Furthermore, SALC argues that the right to equality and equal protection guaranteed under section 19 of the Constitution and enshrined in the International Covenant on Civil and Political Rights provides for a broader protection against inequality than the prohibition against discrimination, and thus in this case regardless of whether section 10(2) is deemed customary law, it would still violate the right to equality.