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Gender Inequality in Lesotho: the Right of Succession to Chieftainship

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Gender Inequality in Lesotho: the Right of Succession to Chieftainship Gender Inequality in Lesotho: The Right of Succession to Chieftainship by NTHATISI E. METSING Student number: 28312725 Mini‐dissertation submitted in partial fulfillment of the requirement for the MPhil: Multidisciplinary Human Rights, the Faculty of Law at the University of Pretoria Supervisor Professor M HANSUNGULE April 2015 DECLARATION I, the undersigned, hereby declare that the work contained in this dissertation is my own original work and has not previously in its entirety or in part been submitted at any other university for a degree. Signature……………………………………………. Date…………………………………… i ACKNOWLEDGEMENTS I would like to dedicate this paper to my parents, my late father Mr Mokutlane Metsing & my mother Mrs. ‘Mateboho Metsing and all of my family members for their undying support and encouragement. I would like to thank the Almighty God for the strength to complete the paper, a special thank you to my supervisor Prof. M Hansungule for accepting the task of supervising this paper and for his invaluable contribution. I would also like to thank and acknowledge the encouragement from all my friends and colleagues ‐ A sincere thank you to you all and may God’s grace and love abound to you all. ii ABSTRACT Like many other African countries, the system of traditional leadership and chieftainship in Lesotho is strongly embraced and deeply embedded. Under customary law chiefs have been regarded as and served as “governors” of their societies with power over different aspects of life. However the traditional leadership systems have been and continue to be predominantly male. The study therefore will examine the institution of chieftainship in Lesotho under both the Constitution and customary and; how this has led to gender inequality and infringement of international human rights law. Under customary law which is recognized by common law women, daughters in particular are denied the right to succeed to chieftainship on the basis of gender and sex. As a result, this has led to gender inequality and discrimination against women. Although the kingdom of Lesotho practices a dual system, obligating itself to incorporate international law into domestic law, it has been evident that both the constitution and customary law are inconsistent with international law particularly Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, which aims to protect and promote human rights; In this case women’s rights. Although chieftainship perceived to be important and relevant, it has been argued that the institution of traditional leadership no longer has a place in the modern world therefore should be abolished. The study further examines some similar cases and judicial responses as well as the application of international law in addressing the issue of gender inequality that results from customary law. I also question under what or which circumstances shall customary law take precedence over international law and when should international law precede over customary/ domestic law. I therefore argue and recommend for the reformation and amendment of Chieftainship Act as well as the Constitution of Lesotho which continues to advocate for gender inequality based on cultural practices and customary law and lastly, the adoption of positive practices from the other African states the paper look at. iii TABLE OF CONTENTS DECLARATION ....................................................................................................................................... i ACKNOWLEDGEMENTS ........................................................................................................................ ii ABSTRACT ........................................................................................................................................... iii TABLE OF CONTENTS ........................................................................................................................... iv CHAPTER ONE ...................................................................................................................................... 1 1 Introduction .................................................................................................................................... 1 1.1 Problem statement .......................................................................................................................... 4 1.2 Research questions .......................................................................................................................... 5 1.3 Methodology .................................................................................................................................... 5 1.4 Motivation ........................................................................................................................................ 7 1.5 Literature review .............................................................................................................................. 7 1.6 Scope of the study .......................................................................................................................... 17 CHAPTER TWO ................................................................................................................................... 19 2 Theoretical framework .................................................................................................................. 19 2.1 Introduction ................................................................................................................................... 19 2.2 General perspective ....................................................................................................................... 20 2.3 The women’s law perspective ........................................................................................................ 23 2.4 Feminist theory/feminist jurisprudence perspective .................................................................... 24 2.5 Analysis of the theoretical frameworks ......................................................................................... 26 2.6 Conclusion ...................................................................................................................................... 28 CHAPTER THREE ................................................................................................................................. 30 3 Lesotho’s reservation on CEDAW .................................................................................................. 30 3.1 Introduction ................................................................................................................................... 30 3.2 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) ..... 31 3.3 The Validity of Lesotho’s reservation on Article 2 of CEDAW ........................................................ 32 3.4 Reasons and implications for making a reservation ...................................................................... 34 3.5 CEDAW Committee on the Reservation ......................................................................................... 35 3.6 Regional Human Rights Instruments: the Maputo Convention and SADC Protocol on Gender and Development ......................................................................................................................................... 38 iv 3.7 Conclusion ...................................................................................................................................... 39 CHAPTER FOUR .................................................................................................................................. 41 4 Comparative analysis .................................................................................................................... 41 4.1 Introduction ................................................................................................................................... 41 4.2 Chieftainship and traditional leadership in Namibia ..................................................................... 42 4.3 Chieftainship in Botswana .............................................................................................................. 45 4.4 Chieftainship in Zambia .................................................................................................................. 47 4.5 Conclusion ...................................................................................................................................... 48 CHAPTER FIVE .................................................................................................................................... 50 5 Conclusion and Recommendations ................................................................................................ 50 5.1 Summary and Conclusion ................................................................................................................ 50 5.2 Recommendations ........................................................................................................................... 53 Bibliography ...................................................................................................................................... 56 International instruments, cases and legislation ................................................................................... 56 Books and papers ..................................................................................................................................
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