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Human Rig hts our
Human and Peoples' Rights
Collective Responsibility
Communication 480/14
Senate Masupha & Others
V
the Kingdom of Lesotho
Adopted by the
African Commission on Human and Peoples• Rights
During the 7U1' Ordinary Session held virtually,from 23 February to 8 March 2024.
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Hon.
rgoy Lumbu
Chain
f'N~,,_:,illl
Commission
on Human and Peoples' Rights
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African
Peoples'
The African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District, West Coast Region
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
An Organ of the
African (~ '\
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Ms.A
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Communication 480/14 - Senate Masupha
& Others v. the Kingdom of Lesotho
Summary of the Complaint
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat), received a Complaint on 10 September 2014 from the following
person and entities:
(a) Ms. Senate Masupha (First Complainant), the victim of the alleged
violation who makes this Complainton her.'.b ehalf and behalf of all other
firstborn daughters in Lesotho;
(b) FIDA-Lesotho
(Second
Complainant),
a : non-Governmental
organization based in Maseru, Lesotho; and · · .• ,
(c) The Southern Africa Litigation Centre (SA'f:S:1/Thi~cl :Corµplainant), a
non-Governmental organization
based in' Johamr:1esburg,
'Soµ.,t h Africa.
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2. The Complaint ·is submitted against the Kingdom of Lesotho
(Lesotho/Respond<;mt State), a State Party to the African Charter on Human
and Peoples' Rights (the .African Gharter)1 .
·.,
3. The Complainants allege tfiat the blanket' exclusion of all first-born female
children from chieftainship as pr,o vided under Section 10 of the Chieftainship
Act 22 of 1968 of Lesotho (the Chieftainship Act) and a decision by the Lesotho
Court of Appeal upholding the afoi:ementioned Section, violates the African
CJ:la~ter.and the Additional Protocol t();the African Charter on the Rights of
Women.kt Africa (Mapµto Protocol).
4. The Cm,n plainants.submit that as the eldest daughter, first-born and only child
of the late Pri9dpal Chief David Masupha (Chief of Ha'Mamathe, Thupa-Kubu
and Jorotane) and his wife Chieftainess Masenate Masupha, the First
Complainant, was denied her legitimate right to be appointed as Principal
Chief in succession of her mother who, after the passing away of her husband
Chief Masupha , in August 1996, served in the interim up to her death on 6
December 2008.
5. The Complainants submit that this denial of the First Complainant's legitimate
right of succession as Principal Chief occurred at a family meeting in February
2009 in the latter's absence. There, the Complainants allege that one Mr. Lepoqo
Masupha, the alleged "illegitimate" son of the late Chief Masupha, was
appointed as successor to the position of Principal Chief while Mr. Majara
Masupha was assigned as Acting Principal Chief until Lepoqo attains the age
of majority.
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Lesotho ratified the African Charter on Human and Peoples' Rights (the African Charter)
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6. The Complainants claim that the First Complainant is an active member of her
community with a demonstrated desire and capacity to lead. The
Complainants allege that the Community, in turn, continues to support the
First Complainant and her family. To that end, the First Complainant cites
several examples which she claims illustrate her commitment to the
community's welfare and development.
7. The Complainants allege that they have exhausted local remedies in this matter
as, after unsuccessfully going through the Magistrates' Court for the district of
Berea in Lesotho, the High Court of Lesotho exercising its jurisdiction as the
Constitutional Court, and the Lesotho Court ofAppeal, the case has reached
the highest instance available in Lesotho_accprdingJ o: their understanding of
Sections 123(4) and 129(1) of the Constitution of Lescitho.
8. The Complainants aver that the Commission's.· ir:nmedia~e attention is
requested as the Fi~st Complainant is at im:µ1inent risk,of being removed from
her family home; furthermore, they fear that the succ,e ssion may be finalized
soon thereby harming her legal interest.
Articles alleged to have been violated:
9. The Complainants allege viqlaticmof Articles 1, 2, 3, 5, 13(2), 14, 16(1), 17(2) and
18 (3) of the African Charter qnq.Articles 2, 91 5, 8(f), 9, 13, 14, 17 and 21(2) of
the Maputo Protocol.
·
Prayers:
10. The Complainants request the African Commission to grant the following
relief:
Declare that section 10 of the Chieftainship Act2 to the extent that
_it ex.eludes all first-born daughters from succeeding their fathers
_as c:hiefs and the Constitution of Lesotho, insofar as it permits this
. discrimination, violates Article 1, 2, 3, 5, 13, 14, 16, 17 and 18(3) of
the .Charter and Articles 2, 3, 5, 8(f), 9,13,14,17, and 21(2) of the
Maputo Protocol.
ii.
Request that the Government of Lesotho amend the Chieftainship
Act to provide for the succession of a deceased chief's first-born
child, irrespective of their gender, on equal terms with men.
iii.
Request that the Government of Lesotho encourage and facilitate
the development of customary practice to include women, on
equaHerms with men, for consideration in customary leadership
roles.
IV.
Request that the Government of Lesotho take further action and
allocate resources to ensure the equality of women i O :sot;t'\q--~
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Procedure:
11. The Secretariat received the Complaint on 10 September 2014 and
acknowledged receipt of same on 16 October 2014.
12. The Commission decided to be seized of the matter during its 17th ExtraOrdinary Session held from 19 to 28 February 2015 and both parties were
informed of its decision on 10 March 2015.
13. On 11 May 2015, the Complainant's submissions on Admissibility were
received at the Secretariat and subsequently transmitted by Note verbale Ref:
ACHPR/COMM/480/14/LES/769/15 on 15 May 2015 to the Respondent
State for their observations.
14. On 12 May 2015, the Secretariat received a Note Verbale referenced NOTE
NO.2/FR/ AU/17 from the Respondent State,,through which the-Office of the
Attorney General sought guidance on the procedure to be undertaken when
interested third parties wish to intervene i~ a' matter under Rule 85 of the
Commission's Rules of Procedure.
15. On 18 May 2015, the Secretariat acknpwledged receipt of the Respondent
State's Note Verbal~ and informed the latter through Note Verbale Ref:
ACHPR/COMM/480/14/LES/792/15 thatRule 85 of the Rules of Procedure
of the Commission, including its practice, requires third parties wishing to
intervene in a matter to submit an application to that effect.
16. On 17 September 2015, following the' 18 th Extra-Ordinary Session of the
Commission, the Secretariat informed both parties that the Respondent State
had been granted an extension of 30 calendar days within which to file its late
submissions on Admissibility, failing which the Commission would proceed to
a default decision.
17. By Note Verbale referenced NOTE NO. 3/ FR/ AU/17 and dated 14 October
2015, the Kingdom of Lesotho informed the Commission that they would only
respond to the ma'tter at the merits stage.
18. On 3 November 2015, the Secretariat acknowledged receipt of the abovereferenced Note Verbale and on the same date transmitted the Respondent
State's response to the Complainant while also informing both parties that it
would proceed wi~h determining the admissibility of the Communication in
conformity with the Rules of Procedure of the Commission.
19. Between its 19 th Extra-Ordinary Session and 63 rd Ordinary Se · , - . __
Commission deferred consideration of the Communication.
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20. The Third Complainants (SALC) sent a letter on 10 December 2018 requesting
an update on the status of the matter. On 11 January 2019, the Secretariat
responded to the above request informing the Complainant that the
Commission would consider the Communication during its 25 th ExtraOrdinary Session. :
21. Consideration of the Admissibility of the Communication was subsequently
deferred until the present 27 th Extra-Ordinary Session of the Commission.
22. The Commission considered and adopted a decision that the Communication
admissible at the 27th Extra-Ordinary Session of the Commission, held in
Banjul, the Republic of the Gambia, from 19 February - 4 March 2020. The
parties were informed of the Commission's decision by letter and Note Ver bale
dated 8 April 2020.
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23. On 5 June 2020 the Secretariat rec~ived the Complainants' submission on the
merits, which were:transmitted<to the Respondent State on 1'7June 2020.
24. By correspondence dated 10 September 2020, the Complainant's Merits
submissions were further transmitted to .the to the RespondentState, who were
given until 9 November 2020 to make submis~ions on Merits.
25. By further Note Verbale dated 4 December 202.Q, the Respondent state was
informed that the deadline for its suhniissions' · on Merits expired on 9
November 2020.
26. The Commissipn , deferred consid~ration of this Communication at 31st
Extraordinary Session, held virtual}y from 19 to 25 February 2021.
27. The Commission deferred consideration
of this Communication at the 68 th
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Ordinary Session, held from 14 April to 4 May 2021; the 69 th Ordinary Session
held from 15 November fo 5 December 2021; the 70th Ordinary Session held
virtually from 23 February to 9 March 2022; the 71 st Ordinary Session held from
21 April to 13 May 2022; the 72nd Ordinary Session held from 19 July to 2nd
August 2022; the 73rd Ordinary Session held in Banjul, The Gambia from 20
October to 9 November 2022; the 74th Ordinary Session held virtually from 21
February to 7 March 2023; the 75th Ordinary Session held in Banjul, The
Gambia from 3rd to 23rd May 2023; The 76 th Ordinary Session held virtually
from 19 July to 2 August 2023 and the 77 th Ordinary Session held in Arusha,
Tanzania from the 20 th of October to 9 November 2023.
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THE LAW ON ADMISSIBILITY
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The Complainants' Submission on Admissibility
28. The Complainants submit that the instant Communication satisfies all the
requirements for Admissibility as outlined in Article 56 of the African Charter
and present arguments in support of this submission.
29. On Article 56 (1) of the African Charter, the Complainants aver that Ms. Senate
Masupha (the principal victim of the alleged violations), FIDA-Lesotho and
SALC, are the authors of the present Communication and identified
accordingly. They state that the Complaint contains full physical and mailing
addresses of all the authors. They further clarify that neither the principal
victim nor the authors of the Communicatiqn have requested anonymity.
30. The Complainants submit that the Communication is compatible with the
Constitutive Act of the African Union and the African Charter, as prescribed
by Article 56(2) of the African Charter. They submit that the Communication
alleges violations of specifically enumerated provisions of the African Charter
and the Maputo Protocol by Lesotho, which occurred during the ··period of
application of these instruments within the territorial sphere of the Kingdom
of Lesotho. They argue that they are competent to bring this Communication
under Article 55 of ·the African ~harter, which they claim enables natural
persons or individuals and NGO's to file Complaints alleging human rights
violations before the Commission.. ·
31. On Article 56(3) of the African Charter, th~ Complainants submit that the
Communicati.o n is wiitten in professipnal and respectful language detailing the
factual and legal bases for their allegations.
32. Concerning Article 56(4) of the African Charter, the Complainants submit that
the Communication is not based exclusively on news disseminated through the
mass media. The Complainants argue that the allegations proffered herein are
substantiated through eyewitness testimony, court proceedings, official public
documents an~:htatutes attached to the Complaint.
33. On the exhaustion of local remedies, the Complainants submit that the
Communication adheres to the requirement of Article 56(5) of the African
Charter as all remedies falling within the domain of 'local remedies' have been
duly exhausted. In support of this submission, the Complainants argue that
after becoming aw<:1,re of the court proceedings in the Magistrates Court, the
First Complainant applied to intervene as an interested party, but her
application was dismissed on the ground that women had no direct and
substantial interest in chieftaincy succession matters under Lesotho law.
Following the dismissal, the First Complainant claims to have filed ,,. .. , .,. ,;,
application in the High Court of Lesotho, exercising its jurisdic;,t"~ '"c;ls:- ifflE!½,:;~,
Constitutional Court in which she argued; inter alia that secti0' ._,'~10 ~
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Chieftainship Act3 violated her rights for precluding her succession to
chieftaincy based on her gender. She claims that the Constitutional Court
rejected her arguments and upheld section 10 of the Chieftainship Act. She
further claims to have appealed against the decision of the Constitutional Court
to the Lesotho Court of Appeal but that on 17 April 2014 the Court of Appeal
handed down a binding, final decision upholding the constitutionality of
Section 10 of the Chieftainship Act. FIDA-Lesotho and SALC were admitted at
both stages of the litigation as amici curiae.
34. On Article 56(6) of the African Charter, the Complainants submit that the
Communication was filed before the Commission within a reasonable period
from the time local remedies were exhausted. The Complainants argue that the
Communication has been sent within a reasonable time because the final,
binding judgment of the Lesotho Court of Appeal was handed down on 17
April 2014 while their submissions were received by the Secretariat on 10
September 2014. They argue that the Commun}cation was thus filed before the
Commission less than five (5) months from the date ofthe final judgment of the
Lesotho Court of Appeal, which they claim, is less than the six-month
delimitation period considered reasonable in other jurisdictions.
35. Regarding Article 56(7) of the African Charter, the Complainants submit that
the Communication does not raise claims that have been settled by the
Kingdom of Lesotho or resolved by any other international forum. The
Complainants submit that no treaty nor Charter body has dealt with the matter
in the present Communication nor addressed the present concerns, including
the relief sought by the Victim.
36. The Complainants submit that for the foregoing reasons, the Communication
satisfies the apmissibility requirements of Article 56 of the African Charter, and
on that basis seek a judgment declaring the Communication admissible.
ANALYSIS OF THE COMMISSION ON ADMISSIBILITY
1. Identification of authors (Article 56(1))
37. Article 56(1) of the African Charter requires Communications to 'indicate their
authors'. In the instant case, Ms. Senate Masupha, FIDA-Lesotho and SALC,
referenced earlier as the First, Second and Third Complainants respectively are
duly identified as the authors with full name and contact details. Accordingly,
the present Communication complies with Article 56(1) of the African Charter.
3
Act 22 of 1968.
38. Article 56(2) of the African Charter provides that a 'Communication should be
compatible with the Charter and the Constitutive Act of the African Union'.
Compatibility requires that the alleged violations must be submitted by a
person competent to do so against a State Party to the African Charter (ratione
personae); relating to rights guaranteed by the African Charter (ratione materiae);
that occurred at a time when the African Charter was operational in the State
Party (ratione temporis); and within the territory of the said State (ratio loci) 4 .
39. From its reading, the Commission considers that the present Complaint reveals
prima facie violations of specific provisions of the African Charter occurring
within the territorial sphere of the Kingdom of Lesotho, a State Party to the
Charter, at a time when the Charter was operational in the said State.
40. The Commission notes, however, that the Complainants also allege that the
Complaint reveals prima facie _violations of the Maputo Protocol by the
Kingdom of Lesotho. Towards determining t}:le nature and legal value of this
claim, a brief exposition of the Commission's jurisprudence on similar
allegations proves instructive.
41 . Generally, .the Commission's jurisprudence abounds with instances of
Complainants invoking human rights treaties other than the African Charter to
substantiate their claims. A distillation of this jurisprudence reveals at least two
senses in which Co_m plainants invoke treaties other than the African Charter.
42. In the first sense, Complainants invoke international or regional treaties to
guide the Commission in its interpretation and application of the Charter5.
These claims are often anchored upon Article 60 of the African Charter, which
enjoins the Comrnissfonto 'draw inspiration from international law on human
and peoples' rights' adopted by African countries. In this way, the Commission
has managed to draw upon more definite provisions contained in other
international instruments to provide an interpretive base for the Charter's
broad provisions. While the Commission draws inspiration from these other
treaties, the Communications are nevertheless decided with reference to the
African Charter. Accordingly, the Commission does not stricto sensu interpret
and apply the "inspiring" treaty during consideration of a Communication6 .
43. ln the second sense, Complainants invoke an international or regional treaty
and not just as an interpretive tool for the African Charter7. In such instances,
the Commission is requested to directly interpret and apply the said treaty
alongside or independent of a finding on the Charter. With regard to their
submissions on admissibility, this Commission considers that the present
Complainants invol<e the Maputo Protocol in this fashion.
44. Accordingly, the issue at stake in this Communication is to determine whether
the Commission is competent to interpret and apply the provisions of the
Maputo Protocol during consideration of Communications.
45. To that end, considering that the ensuing analysis necessarily entails an
interpretation of treaties that this Commission considers germane to a
determination on the above question, it stands guided by the provisions of the
Vienna Convention on the Law of Treaties (VCLT) 8• Specifically, Articles 31-33
on the general rule of interpretation of treaties, which has acquired customary
international law status 9 Article 31(1) of the VCLT enjoins ,treaty bodies, to
interpret a treaty 11 in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in light of its object and
purpose 11 •
2.1
Contentious jurisdiction of the African Commission under the
African Charter
46. To begin, the Commission traces its original contentious jurisdiction from the
African Charter. I~ contrast to other human rights treaties, such as the
European Convention on Human Rights 10 and the American Convention on
Human Rights11 , the African Charter and indeed the Commission's Rules of
Procedure do not contain an explicit reference to the term 'jurisdiction'. That
notwithstanding~ Article , 45 of the African Charter, which outlines the
Commission's mandates, operates as the Charter's jurisdiction clause. Article
45(2) of the African Charter enjoins the Commission to 'ensure the protection
of human and peo"ples' rights under conditions laid down by the Charter'. From
a reading of the rest of the Charter, these conditions may be said to include inter
alia the consideration of 'Communications from States' and 'Other
Communications' otherwise known as individual Communications, as
outlined in Articles 47, 48 and 55 of the African Charter respectively. Article
45(3) of the African Charter also provides that the Commission shall '[i]nterpret
all the provisions of the present Charter at the request of a State party, an
institution of the OAU or an African Organization recognized by the OAU'.
Accordingly, the Commission's protective and interpretive mandates under
the African Charter flow from the aforementioned provisions and should be
read together with the relevant substantive provisions in the Charter to
determine its material jurisdiction in a given matter12 .
47. The question which follows is whether the Commission's contentious
jurisdiction extends to the substantive provisions of treaties other than the
African Charter, including the Protocol.
48. The Commission notes in this respect that the provisions of the African Charter
do not expressly confine its contentious jurisdiction to the substantive
delimitations outlined in the Charter. Indeed, the African Commission,
congruent to the practice of other human rights treaty bodies has progressively
adopted various approaches for shaping its material jurisdiction, either
through a teleological interpretation of the Charter or the adoption of a treaty
supplement.
49. The second approach refers. to the adoption of tre~ty supplements, commonly
referred to ,as ~protocols'. In this respect, while a 'Convention' or 'Charter'
denotes a formal agreement between States, a protocol is one of the means
through which the agreement can be modified. Protocols modify the parent
treaty in at least three ways13 : first, they elaborate on or clarify a substantive
provision existing in the parent treaty; second, they address a new substantive
area that has not been included in the original text of a treaty; and lastly, they
address procedural aspects related to the operation, and enforcement of the
parent treaty14 . Notably, a single protocol can modify the parent treaty in all
three respects. Accordingly, as instruments derived from the parent treaty, they
only apply to those State parties that have agreed to be bound by the parent
treaty. However, protocols do not automatically bind these State Parties unless
they independentl)f: ratify the protocol, and are thus" optional" in nature.
50. In summary, whereas a teleological interpretation does not ipso facto extend the
contentious jurisdiction of the treaty body, but rather adds a different
dimension to existing boundaries, the adoption of protocols can and often
results in extending these boundaries. Accordingly, the African Charter,
through the operation of Article 66 read with Article 45, provides the avenue
for extending the Commission's contentious jurisdiction to other treaties. This
finding does not strictly preclude the development of treaties outside of the
Charter system which voluntarily confer contentious jurisdiction to the
Commission.
2.2
Contentious jurisdiction of the African Commissi\)n under the
Maputo Protocol
a.
Explicit jurisdiction
51. From the foregoing, the Commission must now examine how the Protocol
establishes jurisdiction for the processing of Complaints. The pertinent Articles
of this Protocol indicate the following:
Article 27. Interpretation
The African Court on Humanand Peoples' Rights shall be seized with
matters of interpretation ansmg from the application and
implementation of this Protocol
Article 32. Transitional Provision
Pending the establishment of the African :c ourt on Human and Peoples'
Rights, the African Commission on Human and Peoples' Rights shall be
seized with matters of interpretation arising from the application and
implementation of this Protocol.
52. As such, the African Court and Commission are charged with interpreting and
applying the Protocol. Generally, the ordinary meaning of the term
'interpretation' refers to the 'action of explaining the meaning of something' 15 .
Treaty interpretation specifically, relates to the process of clarifying the
m~aning of a legal text and has also been interpreted by the former Permanent
Court of International Justice (PCIJ) as relating to the 'construction' of the
'scope' and'bearing' of a specific provision and its terms16 • As such, the above
provisions grant the African Court and Commission the authority to interpret
(" clarify'1 , "give meaning to") the provisions of the Maputo Protocol.
53. The Commission considers also that the above articles authorize the exercise of
this interpretiye mandate during consideration of Communications. The
Articles enjoin the seizure of "matters of interpretation arising from the
application and implementation of the Protocol". These "matters" necessarily
include Communications as can be deduced from the shared functions of the
Court and Commission in this respect as well, the wording of similar
provisions in other international human rights instruments. For instance, the
American Convention on the contentious jurisdiction of the Inter-American
Court provides that it "shall comprise all cases concerning the interpretation
and application of the .. . Convention that are submitted to it ... " 17 whilELl.h_e
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European Convention provides that "the jurisdiction of the Court sµjI!J,;e-xt~hff~---,
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Article 32 European Convention.
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to all matters concerning the interpretation and application of the
Convention" 18 .
54. As such, Article 27 and by extension Article 32 of the Maputo Protocol explicitly
establish the Comip.ission' s contentious jurisdiction. The pertinent question,
however, is whether the Commission continues to exercise contentious
jurisdiction over the Maputo Protocol.
55. Article 32 of the Maputo Protocol is designated as a 'Transitional Provision' .
According to the Macmillan Dictionary, the term 1transitional 1 refers to 1the
process or period of changing from one state or condition to another 119 . A
transitional provision, therefore, broadly regulates the coming into operation
of an enactment or provision and at times modifies its effect during the period
of transition.
56. Article 32 regulates the C!Jming into operation of Article 27 of the Maputo
Protocol and modifies its effects during the period of transition. In that, it
prescribes transitional arrangements which take effect during the intervening
period between the establishment of the Court. Accordingly, until the Court is
established, Article 27 of the Protocol may be rea,d as inclusive of the African
Commission which may be understood as _granting, the latter the authority to
exercise its contentious jurisdiction over the Protocol. However, the Protocol
does not elaborate on the term 11 establishment11 or its effects.
57. For-purposes of maintaining a logical sequence, this Commission shall proceed
first to determine whether the Court has been established within the meaning
of Article 32 before considering the effect of its" establishment" in the event the
latter is·confirmed.
58. The term 'estabJishment' is derived from the root word 'establish', which
denotes the act of initiating or bringing about20 • The term may also be
understood as the state of being recognized and accepted. These two senses of
the term' establish', inform the definition of' establishment', which refers to the
act of "bringing [something/one] into being on a firm or stable basis" 21 .
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Article 62 of the American Convention.
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the Court Protocol on 25 January 2004; or the date of its operationalization in
November 2006 22.
60. Considering that the Court Protocol was adopted in 1998, five years before the
adoption of the Maputo Protocol, the above cannot be considered as the date of
establishment of the Court. In such an instance, Article 32 would most likely
have been excluded from the adopted text.
61. At the adoption of the Maputo Protocol on 7 November 2003, the Court
Protocol had yet to enter into force and only became operative on 25 January
2004. The date of entry into force, therefore, seems to reflect the most plausible
date for the "establishment" of the Court as it occurred after the adoption of the
Court Protocol" . The implication, _however, is that the Court was established
before the Maputo Protocol entere_d into force on 25 November 2005, which
means that Article 32 was a dead letter from the date of the Maputo Protocol's
entry into force and had no effect, essentially: regulating a period of transition
which never existed. Indeed, at the entry into force of the Court Protocol, the
African Court had yet to elect its judges. The delay was occasioned by the desire
to merge the African Court with the propos~d ~ourt of Justice of the African
Union. Following EX.CL/Dec.165 (VI) ordering' for the operationalization of
the Court, the later became operational in November 2006.
62. The Commission's jurisprudence supports the position that the date of
operationalization is indeed the date of' establishment' of the Court. In OMCT
v. DRC23 , the Commission held that it was competent to apply the Maputo
Protocol, as the all~ged violations occurred 'prior to the advent of the African
Court ... in November 2006 1 and continued after the State's adoption of the
Protocol. The Commission seems to have adopted the position that
1
establishment1 within the meaning of Article 32 refers to the date of
operationalization of the Court.
63. The above notwithstanding, in this Commission's considered view,
interpreting 'establishment' as either the date of entry into force,
operationalization or date of 'optimum readiness' nevertheless concludes that
by 2009, when the present violations occurred, the African Court had indeed
been established within the meaning of Article 32 of the Maputo Protocol.
64. The Commission notes that Article 32 is silent on the exact implications of the
Court's establishment. In this Commission's considered view, however, the
establishment of the Court ends the transitional period. As discussed earlier,
Article 32 regulatei the coming into operation of Article 27 and modifies its
effects during the transition period. Post-transition, Article 27 should be read,
as is, this is, without reference to the transitional arrangements introduced by
Article 32. The arrangements under Article 32 viewed syntactically and in its
immediate context are conditional and time-bound and cannot be interpreted
as indefinite.
65. As such, upon the establishment of the Court, Article 32 is no longer enforced,
and thus Article 27 is read without reference to the African Commission.
Accordingly, the Commission cannot in 'good faith' rely upon the provisions
of Article 32 to determine its material jurisdiction under the Maputo Protocol
as the latter should now be read exclusive of the said provision.
b.
ContextuaVsystematic interpretation
66. Two implications necessarily arise from the above interpretation. On the one
hand, silence can be interpreted as prohibitive. This implication relates to the
doctrine of express jurisdiction or powers and the literalist approach to treaty
interpretation. According to this doctrine, "an organization may exercise only
the powers that are given to it by memqer states through a constituent
document" and the exercise of pe>wers outside those expressly provided are
ultra vires 24 • An argument can be Ir1ade that post-transition, by expressly and
exclusively referring to the African Court as the prgan responsible for the
interpretation of the Protocol under Article 27, the Commission is prohibited
from examining violations under the Protocol: In that, if States Party to the
Protocol had intended to grant the Commission indefinite jurisdiction, they
would have included it under Article 27 rather than Article 32 which by its
nature is conditional. On the other hand, silence can be interpreted as
permissive. An argument can also be made that in the absence of an express
prohibition the Protocol implicitly permits the exercise of the Commission's
contentious jurisdiction.
67. This Commission conside~s that the latter interpretation is congruent with the
context, object and purpose of the Maputo Protocol. The Commission is
mindful that ih contrast to other African treaty bodies with human rights
jurisdiction such as the African Court and the ECOWAS Court, its jurisdiction
is not as expansive. The Commission nevertheless considers that its contentious
jurisdiction under the Maputo Protocol is derived principally from the African
Charter, namely Articles 45 read with Article 66, the latter of which as earlier
indicated enables the adoption of special protocols to supplement the
provisions of the African Charter. Considering that protocols simply elaborate
or include new provisions to the parent treaty, a reasonable assumption can be
made that the mandates derived from the parent treaty extend to the Protocol
absent an express prohibition in this regard.
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68. In OMCT v. DRC (fn 38 supra), the Commission invoked the Maputo Protocol
to guide its interpretation of Articles 2 and 18(3) of the African Charter
according to Article 60 of the Charter but did not apply the Maputo Protocol
directly. That notwithstanding, the Commission still proceeded to consider its
competence to apply the Maputo Protocol and relied on Articles 27 and 32 to
confirm its competence. As discussed throughout this case, before the
establishment of the Court, Articles 27 read with 32 of the Maputo Protocol
authorize the Commission to interpret and apply the Protocol directly and not
just as an interpretive guide for the Charter. The Commission's analysis in the
above Communication has the effect of confirming its material jurisdiction over
the Protocol buts stops short of doing so by finding violations only on the
Charter. This Commission considers that the above case could have applied the
Maputo Protocol directly as the alleged violations occurred before the
operationalization of the Court.
69. While the above Communication cannot be regarded as locus classicus for
determining the Commission's competence post-establishment of the Court,
the contextual reading adopted is particularly instructive. The Commission in
its analysis determined that it was competent to 'interpret the provisions of
Article 18(3) of the :Charter in ·c;ross-reference _to those of the Maputo Protocol
as to their application and implementation'. On that basis, it found a ' ...
violation of the provisions of Article 18(3) of the Charter, in cross-reference to
those of the abovementioned Maputo Protocol'. In that same case, the
Commission read Article 7(1) (a) of the Charter in cross-reference to Article 26
of the Charter. As such, notwithstanding its reliance on Article 60, the
Commission clearly went beyond the use of the Maputo Protocol as an
interpretive guide and effectively interpreted and applied the Protocol. The
Commission went as far as to claim that the Protocol is 'pegged to the Charter,
structurally and substantially'. If the Charter may be interpreted within the
context of the Protocol, then the reverse also applies.
70. As an aside,the Comm·ission would like to caution the belief that the Charter
on its own sufficiently ·encompasses the various provisions of the Maputo
Protocol, if this were the case, the adoption of the Protocol would not have been
necessary. Only areading of the Charter within the context of the Protocol leads
to this result. For the appropriate protection of the substantive rights of women
in Africa therefore, the Commission must interpret and apply the protocol
directly and cannot merely offer an extensive interpretation of the Charter.
Such an exercise would amount to an unauthorized expansion of the
substantive provisions of the Charter which may be frowned upon by those
States Party to the Charter that have not ratified the Protocol.
!
71. Nevertheless, the Cmnmission adopted a similar contextual readin
OAU Refugee Convention vis-a-vis the 1951 UN Convention
Protocol. There, the Commission dismissed the Complainant's the OAU Convention should be read as superior to the UN Instr 1/
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been adopted at a later date. From the preambular text of the OAU Convention,
the Commission observed that the latter is a 'compliment' to the 1951 UN
Convention. From that understanding, the Commission stressed that it was
enjoined to 'read the provisions of the three instruments as complementing
each other' and that the said provisions 'are at most complementary to each
other and not mutually exclusive' 25 . Considering that the Maputo Protocol,
at the outset, underscores its supplementary or complementary nature vis-avis the Charter, a finding that the Commission may also derive its material
jurisdiction under the Protocol within the context of the Charter is in line with
its previous approach to the interpretation of complementary instruments.
72. Legal scholarship on this issue leans tcn,varqs the above finding. The consensus
is that the Protocol as a supplement to the African Charter falls under the
Commission's contentious jurisdiction. Viljoetl argues that "as a substantive
rather than a procedural supplemeI).t, the protocol is ~uperimposed on the
existing protective framework of the Commissicm". He argues further that "the
logic of the complementarity relationship between the African Charter and the
[Maputo Protocol] requires that the Protocol be read as enlarging the scope of
claims that maybe su'b mitted to the Commission in order to improve the
situation ofwo:rilen'i. He thus concludes that "in the absence of any explicit
provision excluding the competence of the'Commission to do so, the Protocol
should be understood to mandate the Commission to examine
Communications alleging violations of the rights under the Protocol 11 26 .
73. Similarly, in the CoHon field 27 case, concerning the State's failure to investigate
the homicides of three women in Mexico in the context of mass gender violence,
the Inter-American Court' sought to determine its material jurisdiction over the
Inter-American Convention on the Prevention, Punishment, and Eradication of
Violence Against v\Tomen (IAW /Convention of Belem do Para) 28 . There, the
State objected to the Court's jurisdiction citing in particular Article 12 of the
IAW which refers ' exclusively to the lodging of petitions before the InterAmerican Commission. The State argued that by excluding the Court, the IAW
prohibited the exercise of the Court's contentious jurisdiction.
74. The Inter-American Court rejected the above submissions. The Court held that
Article 12 of the IAW, when interpreted with reference to the provisions of the
American Convention permitted the exercise of its jurisdiction29 . The Court
reasoned that the provision in Article 12 which enjoined the Inter-American
Commission to " ... consider such claims [under the IAW] in accordance with
the norms and procedures established by the American Convention on Human
Rights .. . for lodging and considering petitions ... " meant that the InterAmerican Commission was not precluded from transmitting such cases to the
Court in accordance with Articles 44 to 51 of the American Convention. The
Court determined that the "literal meaning of Article 12 of the Convention of
Belem do Para grants the Court jurisdiction, by not excepting from its
application any of the procedural requirements for individual
communications".
75. The above seems to suggest that inter-American instruments which confer
jurisdiction on the Inter-American Commission do likewise for the Court.
Considering that there are a number of inter-American instruments which
nevertheless confer express concurrent jurisdiction to both treaty bodies, such
as the Protocol of San Salvador30, the above interpretation may not be strictly
"literal" as otherwise categorised. Nevertheless, the above serves as useful
precedence for a contextual reading of complimentary instruments regulating
the role of complementary bodies.
76. The Commission draws further inspiration from the Inter-American Court in
the above case, which disting1;1-ished three kinds 9f treaties. Namely, treaties
which do not establish a petition system, treaties which establish a petition
system for specific substantive provisions, and treaties which establish a
comprehensive petition system. The Inter-American Court held "that the
jurisdiction that the American Convention confers on the Court ensures that,
when a petition system has been established, a guarantee exists that, if
appropriate, the Court will exercise judicial control of the matter" 31 .
77. In our context, the Kampala Convention32 falls under the first category as it
does not establish a petition system for alleged violations of its substantive
provisions in contrast to the third category of treaties, including the Maputo
Protocol, where parties are permitted to submit petitions with respect to the
entirety of substantive provisions. Notably, the African human rights system
does not contain the second category of treaties mentioned above. This
Commission considers that like the Inter-American Court, where a treaty
adopted as a supplement to the Charter provides a complaints mechanism, a
guarantee exists that the Commission as the premier human rights institution
on the continent and the organ initially tasked with the supervision of the
Charter, exercises judicial control over such supplementary treaties unless
expressly prohibited. Moreover, it is highly unusual for treaty bodes with
original contentious jurisdiction over a parent treaty to lack said jurisdiction
30
31
Art icle 6 Additional Protocol to the American Convention on Human Rights in the Area of Econ~~<2:__I
and Cultural Rights (''Protocol of San Salvador"), 16 November 1999, A-52 .
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32 Afric an Union Con vention for the Protection and Assistance of Internally Displaced Per
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with respect to a supplementary treaty, especially where the latter establishes
a petition or complaints system.
78. The above is even more applicable in the case of the Maputo Protocol, which is
distinguishable from other similarly situated instruments such as the Court
Protocol and the African Charter on the Rights and Welfare of the Child. As
suggested by Viljoen, the Protocol is distinct in that it is primarily a substantive
rather than a procedural supplement to the Charter. Additionally, the
Children's Charter and the Court Protocol explicitly establish a mechanism for
overseeing their implementation and outline the functions of these
mechanisms. Also, considering that the Commission may appear before the
Court as an interested party, it is by operation of logic not appropriately
situated to interpret the Court Protocol which outlines the functions of the
Court.
79. Indeed, the Commission has already confirmed its competence to interpret the
Maputo Protocol notwithstanding the establishment of the Court. Specifically,
the Commission has adopted three General Comments interpreting the
substantive provisions of the Maputo Protocol. Namely, General Comments
No.1 on Article 14(1) (d) and (e) of the Maputo Protocol; General Comment
No.2 on Article 14.1 (A), (B), (C) and (F) and Article 14.2 (A) and (C) of the
Maputo Protocol; and Joint General Comment of the African Commission and
the African Committee of Experts on the Rights and Welfare of the Child
(ACREWC) on Ending Child . Marriage. These General Comments were
adopted on 6 November 2012; 28 November 2014 and 8 February 2018
respectively sometime after the establishment of the Court as interpreted
herein. In all three General Comments, the Commission claims that its
competence to adopt General Comments under the Maputo Protocol is derived
from Article 45 (1) (b) of the African Charter and that "as a complementary
legal instrument to the African Charter ... the [Maputo Protocol] by necessary
implications falls within the Commission's interpretative scope" .
80. This Commission is mindful of the thin distinction between advisory
jurisdiction and contentious jurisdiction. For example, in contrast to its
contentious jurisdiction, the Inter-American Court has the jurisdiction to
furnish advisory opinions with respect to treaties other than the American
Convention or other applicable Inter-American instruments33 . As such, an
argument could be made that the Commission may exercise other interpretive
jurisdictions under the Maputo Protocol, such as the adoption of general
comments, except for its contentious jurisdiction.
interpretive mandate may be exercised. It is unclear whether Article 27 confers
a general interpretive mandate or whether it confines the exercise of this
mandate to specific instances. The title proceeding the Article, labelled
'interpretation', lends support to a finding that this provision functions as the
general interpretive clause under the Maputo Protocol, which means that it
confers the authority to interpret the Protocol without being prescriptive.
However, the provision is expressed in a manner that suggests a qualification
in the exercise of this authority. Understandably, not all 'matters' of
interpretation arise from the 'application and implementation of the Protocol.'
82. Interrogating the Commission's understanding of its interpretive mandate
under the African Charter may prove instructive in appreciating the
importance of the above distinction. The Commission in ACHPR/Res. 402
(LXIII) 201834 1reiterates that its interpretive mandate is inherent in its
promotional and protective mandates as set out by the Charter'. Reason being,
the Commission recognizes that treaty interpretation pervades every aspect of
its work, be it contentions or non-cnntentious, promotional or protective. As
such, while the Commission exercises its interpretive mandate during
consideration of Communications, )t does likewise during the adoption of
general comments and even when considering State reports. As such, the
Commission cannot effectively fulfil its protective or promotional mandate in
the absence of .an interpretive mandate. For this reason, Article 45(3) of the
African Charter is cited as the source of the Commission's general interpretive
mandate even though a strict reading of its terms seems to limit the exercise of
this authority to those instances expressly requested by State Parties or
organization of the AU.
83. From that analysis, if the above p:rovisions of the Maputo Protocol were to be
understood as conferring a general interpretive mandate, then the functions of
the body concerned as outlined in their founding treaties would delimit the
instances in which this authority is exercised. However, if the provisions only
authorize the interpretation of the treaty in specific instances, as it does with
the submission of Communications, the question that arises is whether a bod.y
may claim to exercise an interpretive mandate over the Protocol outside the
Communications procedure. Considering that the Commission has issued
three General Comments on the Maputo Protocol, instruments which offer an
authoritative interpretation of its provisions, questions may abound as to the
source of authority derived for such an undertaking.
84. Nevertheless, when adopting the above General Comments, the Commission
based its interpretive mandate on the provisions of Article 45(1) (b) of the
African Charter, not the Protocol, even though the latter per its terms refers
solely to the African Charter. If the Commission is empowered to derive it§._
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advisory jurisdiction over the Maputo Protocol from the provisions of the
Charter, it follows that it may similarly derive its contentious jurisdiction
accordingly. Both decisions on Communications and General Comments
constitute authoritative interpretations of substantive provisions, and indeed
the former establishes obligations for all States Party to the Protocol while the
latter may be confined to the respective State concerned. Indeed, it is common
to derive jurisdiction over a treaty through various sources, the African Court
has asserted its competence to interpret and apply the Maputo Protocol under
Article 3(1) of the Court Protocol and has indeed never referred to Article 27 of
the Maputo Protocol on this issue.
c. Teleological interpretation . .·
85. The above finding aligns with the object and purpose of the Maputo Protocol.
Notably, the preambular text of the Maputo Protocol cites t.h e promotion and
protection of women's rights among its chief aims '. While .admittedly, the
Protocol was adopted to supplement the normative base of the African Charter,
it is also aimed at enhancing the protection of women's rights in Africa. Indeed,
the Protocol acknowledges that _a lack of effective implementation rather than
a dearth of protective instruments necessitated its adoption. The Commission's
communications procedure is necessarily an essential avenue for enhancing the
protection of women's rights.under the Protocol. Indeed, it is only to the extent
that the Commission is prepared to interpret and apply the Maputo Protocol
that Governments would appreciate the extent of its obligations and citizens
understand the scope of the rights they have under the Charter35 .
86. An interpretation that the Commission is prohibited from exercising this
crucial function falls foul of this purpose. Notably, the majority of
Communications before the Commission and Court consist of individual
Communications. Notably, the Commission and Court have in total only
received three· (3) inter-State Communications in contrast to the hundreds of
individual complaints. Ho,tvever, the African Court is not empowered to seize
Communications submitted by individuals unless the violating State has made
the 'optional' declaration under Article 36(4) of the Court Protocol recognizing
its contentious jurisdiction. Considering that, to date, only eight States have
made the optional declaration under Article 36(4), the majority of
Complainants who allege a violation of their rights under the Maputo Protocol
cannot vindicate their rights notwithstanding the operationalization of the
Court. The exclusion of the Commission's contentious jurisdiction, therefore,
has the effect of eroding the protection of women's rights.
which operates under the African Charter, necessarily extends to the Protocol
as a supplement to the Charter. A finding that the Court's establishment ousts
the Commission's 111aterial jurisdiction certainly violates the Complementarity
relationship between the Commission and Court.
88. In summary, a systematic interpretation of the Maputo Protocol reveals that the
complementary relationship between the latter instruments as well the two
bodies tasked with overseeing their implementation necessitates the exercise of
the Commission's contentious jurisdiction. The jurisdiction explicitly conferred
to the Commission for the promotion and protection of human and peoples'
rights under Article 45 of the African Charter cannot be effective where it fails
to address the gendered nature of rights violations on the continent. The
exercise of the Commission's contentious jurisdiction over the Maputo Protocol
is to complement'its existing functions under the Charter.
2.3
Compatibility with the Maputo Protocol
89. Having found that the Commission has the requisite subject-matterjurisdiction
over the Maputo Protocol, it follows that the Commission must now determine
whether the other elements of compatibility are present in this Communication.
To that end, this Commission has already found that the violations occurred in
the Kingdom of Lesotho and finds also. that they occurred at a time when the
Kingdom was a State Party to the Maputo Protocol.
3. Disparaging or insulting language (Artide 56 (3))
90. In accordance with Article 56 (3) of the African Charter, the Commission
co:asiders that this Communication is not written in disparaging or insulting
language.
4. News disseminated through mass media (Article 56(4))
91. As required under Article 56 (4) of the African Charter, the Communication is
not exclusively based on news disseminated through the mass media. As
indicated by the Complainants, they have not relied on any media source and
they have submitted evidence in the form of judgments passed by the Courts
of the Respondent State and copies of the laws at the centre of this matter.
5. Exhaustion of domestic remedies (Article 56(5))
93. The Complainants have submitted that since learning of the first Complainant's
exclusion from being considered as chief on the sole basis of her gender, she
(Ms. Masupha) actively and diligently sought the assistance of the courts in
Lesotho and has exhausted all the domestic legal remedies available to her to
vindicate her right~_.
94. The Complainants have submitted that on 20 February 2009, Mr. Sempe
Masupha, the younger brother of the late Chief Masupha, initiated proceedings
in the Magistrates' Court for the district of Berea in Lesotho. He (Mr. Sempe
Masupha) challenged Mr. Lepoqo Masupha' s appointment as Principal Chief
and the appointment of the Acting Principal Chief on the grounds that
important members of the family were excluded when the appointment was
made and that Mr. Lepoqo was an "illegitimate" son of the Late Chief Masupha
and could therefore not succeed him. They claim that Ms. Masupha was neither
cited, nor given notice of this applic:ation.
95. The Complainants submit that after becoming aware of the proceedings in
early 2010, Ms. Masupha applied to intervene as an interested party, but the
Magistrate held th~t under Lesotho law, women had no direct and substantial
interest in succession matters, which rendeted Ms. Masupha' s application for
leave to intervene frivolous and unfit for adjudication. For those reasons, her
application was dismissed. The Complainants have submitted that in April
2010, Mr. Sempe Ma1,upha's main application wa,s dismissed on the basis that
it had not beertestablished that the appointments were made mala fide, illegally
or in a biased manner. The Magistrates' Court held that the family had not
deviated from the line of succession, from which it lacked the power to deviate
unilaterally.
96. The Complainants have submitted' that on 14 April 2010, Ms. Masupha made
a fresh application to the High·Court of Lesotho, exercising its jurisdiction as
the Constitutional Court. She (Ms. Masupha) argued that section 10 of the
Chieftainship Act does not, on a proper construction, preclude first-born
female children of a chief from succession. Insofar as it could be interpreted to
prohibit her from succession, she argued that the Chieftainship Act violated her
rights to freedom from discrimination under section 18 of the Constitution of
Lesotho and to equality before the law under section 19, but on 3rd March 2013,
the Constitutional Court upheld section 10 of the Chieftainship Act.
98. The Commission has in its jurisprudence consistently reiterated the necessity
of exhausting local remedies in order to enable Respondent States to address
the allegations through their own judicial and administrative procedures,
before being called before an international body. The Commission has held that
"the generally accepted meaning of local remedies, which must be exhausted
prior to any communication/ complaint procedure before the African
Commission, are the ordinary remedies of common law that exist in
jurisdictions and normally accessible to people seeking justice" and that "the
internal remedy [to] which Article 56(5) refers entails remedy sought from
courts of a judicial nature ... "36
99. The author of a Communication must have taken ·a matter to the highest
available court of the land, which in this case is the Court of Appeal of the
Respondent State, which is the body that can entertain appeals from the
Constitutional Court. The verdict by the Court of Appeal upholding the
constitutionality of Section 10 of the Chieftainship Act ended all judicial
avenues at the Complainants' disposal. Since it is not in dispute that the Court
of Appeal is the Respondent State's body of final jurisdiction, the Commission
considers that there were no other re:r:nedies left to be exhausted. Consequently,
the Commission holds that the local remedies were duly exhausted.
6. Submission within a reasonable period (Article 56(6))
100.
Further to Article 56 (6) which requires communications to be submitted
within a reasonable period from the time local remedies are exhausted, this
Communication was submitted within 5 months following the exhaustion of
local remedies, which the Commission finds to be a reasonable period.
7. Other procedure of international settlement (Article 56(7))
101.
In accordance with Article 56 (7) of the African Charter, the
Communication, as duly indicated by the Complainant, has not been submitted
to, or settled by another regional or international complaints mechanism.
102.
After carefully exammmg the information provided by the
Complainant, the Commission is satisfied that all the requirements under
Article 56 of the African Charter have been complied with.
DECISION OF THE COM1\1ISSION ON ADMISSIBILITY
36
Communication 221/98 -Alfred B. Cudjoe vs. Ghana (1999} ACHPR, para 14.
CONSIDERATION OF THE MERITS
Complainant's submissions on the Merits
Alleged violations of articles 2 and 18(3) of the African Charter and Article 2 of the
Maputo Protocol
104.
The Complainants contend that the preclusion of first-born daughters
from chieftainship succession as provided for in section 10 of the Chieftainship
Act, violates article 2 of the African Charter and artic~e-18(3) of the Protocol to
the African Charter on Human and Peoples' Rights on the Rights of Women
(the Maputo Protocol), because it discriminates based on their sex.
105.
The Complainants submit that Lesotho's chieftainship succession rules
and practices, as stipulated in sectionJ0 _of the Chieftainship Act, are evidently
based on the idea that first-born sons are superior to firstborn daughters.
According to the Complainant, there is no oth~r conceivable basis upon which
such discrimination might rest. It is submitted that such extreme and
unjustifiable discriminatory treatment of first-born daughters is thereby in
breach of the African Charter and the Maputo Protocol.
106.
Referring to decisions in Kenneth Good v Republic of Botswana, the
Legal Resources Foundation v Zambia, and Egyptian Initiative for Personal
Rights and Inter-rights v Egypt decisions by the Commission, the
Complainants observe that the Commission has asserted that equality and the
lack of equality affects one's capacity to enjoy various other rights.
107.
The Complainants further submit that Ms. Senate Masupha and other
first-born daughters of chiefs, who are precluded from succeeding their parents
as chiefs are discriminated against on the basis of their sex. This highly
objectionable form of discrimination negatively affects their enjoyment of their
rights to dignity, access to public service, property, health, and participation
cultural and political life - all rights guaranteed under the African Charter.
which affirms the duty of State Parties "to dismantle ... all forms of
discrimination, particularly those based on ... sex". In the case of Purohit and
Moore v The Gambia, the African Commission stated that" Article 2 lays down
a principle that is e·s sential to the spirit of the African Charter and is therefore
necessary in eradicating discrimination in all its guises" 38
109.
Section 10 of the Chieftainship Act, the Complainants propose,
precludes first-born daughters from succeeding a chief, on the basis of their sex,
while it confers differential treatment on women generally on the basis of
marital status. This is clear from the decision of the Constitutional Court of
Lesotho when it stated, at para 43:
"It is .. . well established in our law that married women do have a right to
succeed to the position of chief In this regard the distinction is between married
and unmarried. However, a further requirement is that the married woman
should be married to a chiefly family. It does not matter whether she be the firstborn daughter of a Chief or not, as ,long as $he gets to marry into a chiefly family
she will have the right to succee_d, either in her own right or as regent. The
regency case and subsequent authorities ha.ve resolved that aspect. It is to be
noted that such a wife need 7?-0t come from a chiefly background. In the
circumstances the Applicant's position, and chances would improve if she got
herselfmarrie_d into another chiefly family. 'To this extent it may be equally or
more r;ippropriate for her to claim discrimination on the basis of her status rather
than her. sex. Unmarried women cannot be chiefs under an[y] circumstances
while men do not have to get married to be chiefs. Furthermore, any woman
married into a chiefly family could be a chief while girls or unmarried women
can never be because of their marital status."
110.
It is the Complainants submission that by attempting to treat the present
case as turning on a distinction between married and unmarried women, and
suggesting that Ms. Senate Masupha' s position, and chances of succeeding as
chief, would improve if she got herself married into another chiefly family, the
Constitutional Court of Lesotho failed to realize that the law clearly permits
discrimination against first-born daughter of chiefs on the basis of sex and
women generally on the basis of marital status.
111.
The submission of the Complainant is therefore that discriminatory
content of section 10 of the Chieftainship Act is unacceptable and
impermissible, regardless of whether first-born daughters and women
generally who wish to succeed as chief can get married into chiefly families or
not. First-born daughters of chiefs and women generally should not have to
marry into a chiefly family to increase their chances of succeeding as chiefs,
when first-born sons of chiefs and men generally do not have to t
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112.
On the basis of the above, the Complainants submit that both the right
to freedom from discrimination and the right to equality prohibits unequal
treatment based on sex.
113.
Finally, the Complainants submit that there is no objective or reasonable
justification that has been offered for such difference in treatment, nor would a
blanket denial to all first-born daughters regardless of their circumstances be
proportional to any legitimate aim. This will be discussed in more detail in the
justification section.
114.
The Lesotho Appeal Court held th~t section 10 C?f the Chieftainship Act
did not violate the prohibition of discrimirtation on, t'p.e basis of sex under
section 18 of the Constitution, as the Constitutioµ pr,ovicled an exception for all
matters related to customary law under section 18(4)(cf
115.
This discrimination► the Complainants contend, that Ms. Masupha and
similarly placed first-born daughters of chiefs are subjectecl. to is not supported
by section 18(4)(c) of the Constitution of Lesotho, read with and interpreted
subject to the limitations in section 4(1) of the Constitution. The Complainants
also submit that Section 4 of the Constitution of Lesotho confers on every
person in Lesotho, including ,Ms. Senate Masupha, the freedom from
discrimination, and the right to' equal protection of the law, irrespective of sex
or race, inter alia. Section 18 of the Constitution guarantees the right to freedom
against discrimination and provides a list of exceptions to this right under
section 18(4) including "for the applic;a,tion of the customary law of Lesotho
with respect to any .matter in the case of persons who, under that law, are
subject to that law". 39
Alleged violations of articles 3 of the African Charter and article S(f) of the Maputo
Protocol
,
116.
The Complainants allege that first-born sons are given favorable
treatment over first-born daughters under section 10 of the Chieftainship Act
resulting in first-,b orn daughters being excluded from succeeding to
Chieftainship, regardless of their circumstances.
117.
They further allege that although given an opportunity on two separate
occasions, both the Constitutional Court and the Lesotho Appeal Court in
Lesotho have failed to reform section 10 of the Chieftainship Act in such a way
that it is no longer discriminatory and can protect and promote the rights of
women, as required under Article 8(f) of the Maputo Protocol.
118.
The Complainants aver that by failing to reform section 10 of the
Chieftainship Act in such a way that it is no longer discriminatory and can
protect and promote the rights of women as required, Lesotho has violated
both Article 3 of the Africa Charter and Article 8(f) of the Maputo Protocol.
Alleged violations of articles 5 of the Charter and article 3 of Maputo Protocol
The right to respect of dignity and not be subjected to cruel, inhuman and degrading
treatment
119.
The Complainants submit that to deny first-born daughters the ability
to succeed as chiefs on basis that they marry into their husband's families and
that upon marriage cease to be members of their families, inevitably harms
their self-worth and dignity. It does not treat first-born daughters as worthy of
respect and concern.
.,
120.
They submit that it is therefore a violation their right to dignity under
the Article 5 of the African Charter _a nd Article 3 of the. Maputo Protocol.
121.
The Complainants further submitted that to use the Ja,w to deny firstborn daughters the ability to succeed as chiefs on the basis that they marry into
their husband's families and that upon marriage they cease to be members of
their families inevitably humiliates and degrades the first-born daughters of
chiefs in Lesotho. It is therefore a violation of their right to not be subjected to
degrading treatment under Article 5 of the African Charter and Article 3(3) of
the Maputo Protocol.
Reasonabl~ justification for excluding first born daughters from
chieftainship succession
122.
123.
The Complainants submitted that there is no objective or reasonable
justification for infringing on Ms. Senate Masupha' sand other women's rights,
nor is the complete exclusion of all firstborn daughters proportionate to any
legitimate aim
Alleged violations of article 13 of the Charter and article 9 of the Maputo Protocol
124.
The Complainants submit that exclusion from chieftainship for firstborn daughters means that they are precluded from attaining the office of the
chief.
Alleged violations of article 14 and 16 of the Charter, and articles 5, 14 and 21(2) of
the Maputo Protocol Chatter
126.
The Complainants submitted that the preclusion of first-born daughters
from succeeding their fathers as chiefs, that they are precluded from being heirs
to their deceased father's estate under customary law.
127.
Further, the Complainants submit that by denying women the rightful
ownership of property, the law disempowers women in important ways that
inevitably impacts their safety and security, their freedom of movement, their
homes and their livestock,
Alleged violations of article 17 of the African Charter and Article 17 of the Maputo
Protocol
128.
The Complainants submit that Ms. Senate Masupha desires to practice
her customary culture and to serve her community as the rightful heir to her
father's chieftainship.
·
Referring to the Maputo Protocol prea_mble, the Complainants submit
that Ms. Senate Masupha embodies "the - crucial role of women in the
preservation . of African values based on the principles of equality, peace,
freedom, dignity, justice, solidarity and democracy".
129.
The Complainants also submit that the exclusion of first-born daughters
of chiefs from chieftainship succession and Lesotho's refusal to recognise the
importance of equal engagement of women and men in cultural and family
processes, violates the rights to participate in cultural life, guaranteed in Article
17 of the African Charter and Article 17 of the Maputo Protocol.
130.
131.
Further to the above, the Complainants submitted that aaccording to the
2014 Lesotho Dem~graphic Health Survey, 25 % of adults aged 15-49 in Lesotho
arc HIV posi!ive and HIV prevalence is higher among women (30 %) than men
(19 %).40 They indicated that there is extensive research evidencing that
disempowerment, inequality and discrimination against women exacerbates
their vulnerability to contracting HIV.
132.
To this end therefore, the Complainants submit that exclusion of women
from chieftainship succession on equal terms with men is an additional factor
contributing to women's inequality which in turn perpetuates harmful
practices and negative health outcomes.
---
The Complainants submitted that Lesotho managed to de . '"'.~~,t~~
same alleged deeply rooted cultural attitudes in respect of tf'1i,c 0r ' /;~ /
133. .
40
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citizenship law but has failed to do so in relation to chieftainship succession.
Lesotho could have equally amended the Chieftainship Act in 2018 when it
amended the Constitution and passed the Dual Citizenship Act.
The submissions of the Respondent State
The Commission notes, from the onset, that the Respondent State has not responded
to the allegations made by the Complainants. The Commission therefore has no choice
but to rely on the facts at its disposal, which are the facts as presented by the
Complainants, in the present matter.
THE COMMISSION'S ANALYSI$ ON THE MERITS
Alleged violations of articles 2 and 18(3) of the African Charter and Article 2 of the
Maputo Protocol
134.
The Complainants allege that the respondent state's preclusion of first
born-daughters from chieftainship as is provided for in section 10 of the
Chieftainship Act, is a violation of articles 2 and 18(3) of the African Charter
and article 2 of the Maputo Protocol.
135.
Article 2 of the African Char_ter provides:
"Every individual shall be entitled to the enjoyment of the rights and freedoms
recognized and guaranteed in the present Charter without distinction of any
kin4 such as race, ethnic group, color, sex, language, religion, political or any
other opinion, national and social origin, fortune, birth or other status."
136.
Article 18(3) of the-African Charter mandates that States
"shall ensure the elimination of every discrimination against women and also
ensure the protection of the rights of the woman and the child as stipulated in
international declarations and conventions."
137.
Article 2 of the Maputo Protocol calls on States to eliminate
discrimination against women by:
"taking corrective and positive action in those areas iuhere discrimination
against women in law and in fact continues to exist".
v Republic of Botswana, the Commission described the principle of nondiscrimination as: ,
"a fundamental principle in international human rights law, All international
and regional human rights instruments and almost all countries' constitutions
contain provisions prohibiting discrimination" .41
139.
The rights to equality and freedom from discrimination are integral to
the enjoyment and exercise of other rights guaranteed under the African
Charter. In Legal Resources Foundation v Zambia, the Commission noted that
"equality or the lack of it affects the capacity of one to enjoy many other rights".
140.
The Commission observes that the rights protected in Articles 2 and
18(3) of the Charter as well as Article 2 of the Maputo Protocot impose a
scheme of obligations. States party to the Ch~rter and Maputo Protocol are
mandated to combat all forms of discrimination against women through
appropriate legislative, institutional and other measures, 42 to enact and
effectively imple~ent appropriate legislative or regulatory measures,
including those prohibiting and curbing all forms of discrimination and take
corrective and positive action in those areas where discrimination against
women in law and in fact continues to exist. 43
141.
The Commission has defined discrimination in Zimbabwe Lawyers for
Human Rights & Institute for Human Rights and Development in Africa (on
behalf of Andrew' Barclay Meldrum) v Zimbabwe as:
Any act which aims at distinction, exclusion, restriction or preference which is
based on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status, and
which has the purpose or effect of nullifying or impairing the recognition,
enjoyment of exercise by all persons, on equal footing, of all rights and
freedoms. 44
142.
Discrimination against women has been defined in Article l(f) of the
Maputo Protocol as:
"Any distinction, exclusion or restriction or any differential treatment based on
sex and whose objectives or effects compromise or destroy the recognition,
enjoyment or the exercise by women, regardless of their marital status, of
human rights and fundamental freedoms in all spheres of life."
143.
Accordingly, the gravamen of discrimination against women on the
basis of sex and gender is the unjustifiable distinction or differential treatment
of persons in relevantly analogous situations. 45 The corollary is that for the
Commission to make a finding of discrimination of discrimination there must
be differential treatment of analogous parties which lacks justification. In
Egyptian Initiative for Personal Rights and Interights v Egypt, the
Commission acknowledged that no discrimination exists where a difference in
treatment is reasonable, objective, and aims to achieve a legitimate purpose.
144.
The Commission recalls that where a ,Complainant alleges
discrimination in violation of Article 2 of the Charter, they bear the burden to
make a prima facie case that the Respondent State had not given the
Complainant the same treatmen~, it accorded to the others in analogous
situations or, that, the respondent state had ,accorded less favorable treatment
to the Complainant than that accorded to , others in relevantly analogous
situation, or indeed that the State imposecl a disproportionate burden or
restriction on the Complainant relative to that imposed on others in relevantly
analogous situations. 46
145.
The Gommission notes that in the present case, the Complainants have
demonstrated that first daughters of chiefs do not enjoy some rights that are
undisputedly given to first sons. The Commission notes that eldest sons are
permitted to inherit their father's thrones whilst eldest daughters are not. Put
specifically, S10 of the Chieftainship Act as well as its confirmation by the
Lesotho Court of Appeal treat th~Erst Complainant differently from first-born
sons of chiefs. This is th,e ,Comrnissibn:' s view prima facie evidence of differential
treatment of analogously situated parties.
146.
As enunciated in Equality Now 47 and previously in Egyptian
Initiative, 48 following a prima facie case of differential treatment being made,
the onus would traditionally shift to the Respondent State to dispute that such
treatment was not differential or to justify the differential treatment as it were.
147.
The Commission recalls that in the present case, the Respondent State
has not participated in these proceedings. However, the Commission considers
that the information before it is sufficient to determine whether or not the
differential treatrnent between eldest daughters of chiefs and eldest sons of
chiefs constitutes impermissible discrimination in violation of Article 2 of the
Charter and Article 18(3) of the Maputo Protocol.
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
arrangements may be employed to ensure the first Complainant as well as any
other female heir may be succeeded by someone from their father's bloodline.
The Commission therefore takes the view that the discriminatory law and
practice of excluding eldest-daughters from succession is disproportionate to
the objective of retaining the chieftaincy in their deceased father's bloodline.
153.
It is prudent to revisit the findings of the Commission in Constitutional
Rights Project and Others v Nigeria to the effect that:
The justification of limitations must be strictly proportionate with and
absolutely necessary for the advantages which follow. Most important, a
limitation may not erode a right such that t~e 'right itself becomes illusory. 52
154.
In view of the foregoing, the Commission considers that the operation
of S10 of the Chieftainship Act and its interpretation in the decision of the Court
of Appeal unjustifiably discriminates against the 1st C:omplainant and eldest
daughters of chiefs broadly speaking, on the basis of their sex and gender.
Further, the Commission takes the view that its continued application and
consistent reiteration as illustrated by the C9urt of Appeal's judgment is
compelling evidence of the Respondent State's failure to eliminate all forms of
discrimination against women in the Kingdom of Lesotho as observed in
Article 2 of the Maputo Protocol.
155.
Accordingly, the Commission finds that the Respondent State has
violated Articles 2 and 18(3) of the Charter and Article 2 of the Maputo Protocol.
Alleged Violations of article 3 .of the African Charter and article B(f) of the Maputo
Protocol
156.
Article 3 of the Charter provides for the right to equality as follows:
"(1) Every individual shall be equal before the law.
(2) Every individual shall be entitled to equal protection of the law."
157.
The Commission observes that article 8 of the Maputo Protocol further
outlines the steps States must take to ensure women's fundamental right to
equality:
52
{2000) AHRLR 227 {ACHPR 1999), para 42
b. (d) that law enforcement organs at all levels are equipped to effectively interpret
and enforce gender equality rights;
c. (e) that women are represented equally in the judiciary and law enforcement
organs;
d. (fJ reform of existing discriminatory laws and practices in order to promote and
protect the rights of women."
158.
The Commission in Zimbabwe Lawyers for human Rights and the
Institute for Human Rights and Development (on behalf of Andrew Barclay
Meldrum) v Republic of Zimbabwe has interpreted Article 3(1) as follows:
The right to equality before the law means that individuals legally within the
jurisdiction of a State should expect to be treated fairly and justly within the
legal system and be assured, of equal treatment before the law and equal
enjoyment of the rights available to all other citizens. Its ineaning is the right to
have the same procedures and principles applied under the same ,conditions. The
principle that all persons are equal before the law means that existing laws must
be applied in the same manner to those .subject to them. The right to equality
before the law does not refer to the content of legislation, but rather exclusively
to its enforcement. It means that judges -and administration officials may not
act arbitrarily in enforcing laws. 53
159.
In Zimbabwe Lawyers for Human Rights and the Institute for Human
Rights and Development in Africa v. Republic of Zimbabwe, the
Commission interpreting Article 3(2) held that:
" .. .equal protection of the law refers to the right of all persons to have the same
access to the law and courts and to be treated equally by the law and courts,
both in procedures and in the, substance of the law. It is akin to the right to due
process of law, but in particular applies to equal treatment as an element of
fundamental fairness. "54
160.
Having regard to its findings on Articles 2 and 18(3) of the Charter, as
well as 2 of the Maputo Protocol, the Commission finds that the relevant laws
on Chieftaincy as well as the constitutional right to freedom from
discrimination are applied differently between man and women and
accordingly treat them differently with no justification.
161.
The Commission also associates with the submission of the
Complainants that although given an opportunity on two separate occasions,
both the Constitutional Court and the Lesotho Appeal Court in Lesotho have
failed to reform section 10 of the Chieftainship Act in such a way that it~E9
longer discriminatory and can protect and promote the rights of w-:@en·;i,a~
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162.
The Commission finds that the Respondent State has violated Article 3
of the Charter and Article 8 of the Maputo Protocol.
Alleged violations of articles 5 of the African Charter and article 3 of the Maputo
Protocol
163.
The Complainants submit that to deny first-born daughters the ability
to succeed as chiefs. on basis that they marry into their husband's families and,
that, upon marriage, cease to be members of their families, inevitably harms
their self-worth and dignity. They allege that it does not treat first-born
daughters as worthy of respect and concern.They submit that it is therefore a
violation their right to dignity under the Article 5 of Jhe African Charter and
Article 3 of the Maputo Protocol.
164.
Article 5 of the Charter provides that:
"every individual shall have the right to the respect of the dignity inherent in a
human being and to the recognition of his legal status. All forms of exploitation
and degradation of man particularly slavery, slave trade, torture, cruel,
inhuman or degrading punishment and treatment shall be prohibited."
',
165.
Article 3 of the Maputo Protocol, which provides:
"1) Every woman shall have the right to dignity inherent in a human being and
to the recognition and protection of her human and legal rights.
2) Every woman shall have the right to respect as a person and to the free
.development of her personality .
.3) States Parties shall adopt and implement appropriate measures to prohibit
·. any exploitation or degradation of women.
4) States Parties shall adopt and implement appropriate measures to ensure the
protection of every woman's right to respect for her dignity and protection of
women from all forms of violence, particularly sexual and verbal violence."
166.
In Purohit and Moore v the Gambia, the Commission stated that
dignity is the most basic of rights to which all should be entitled without
discrimination because all persons have "hopes, dreams and goals and the right
to pursue them". The Commission further affirmed that "all human beings are
born free and equal in dignity and rights".
168.
In Equality Now, the Commission has interpreted the right to dignity as
follows:
" ... Article 5 of the Charter guarantees that every individual shall have the right
to respect of the dignity inherent in a human being. Human dignity is the
fountain of all other rights. At the core of human dignity is the idea and
recognition that a human being has unique worth, value and significance that
is innate, and not acquired. It also entails that a human being is a moral agent
possessed ·with the conscience and personal volition to decide what happens to
his or her body. The right to respect of dignity is a guarantee that a human being
should not be subjected to acts or omissions that degrade or humiliate him or
her. "
169.
The Commission notes that the Complainants have not established how
the First Complainant's dignity has been stripped by the acts complained of.
The Commission is not convinced that the disputed Chieftaincy attaches to the
Complainant's humanity, meriting the conclusion that . without it, the
recognition to the dignity inherent to her humarity ceases.
170.
Similarly, the Commission is not con,fident that the Complainant's
submissions or indeed her circumstances in g~neral invoke a violation of cruel,
inhuman and degrading treatment. The Commission's jurisprudence has
established the scope of inhuman .and degrading treatment, which does not
only include physical but also psychological suffering. In International Pen
and Others v. Nigeria, the Commission held that:
Article 5 of the African Charter prohibits not only torture, but also cruel,
inhuman or degrading treatment. This includes not only actions which cause
serious physical or psychological suffering, but which humiliate the individual
or force him or her to act against his will or conscience55
171.
The Commission has held previously in Curtis Doebler v Sudan that:
"While ultimately whether an act constitutes inhuman degrading treatment or
punishment depends on the circumstances of the case. The African Commission
has stated that the prohibition of torture, cruel, inhuman, or degrading
treatment or punishment is to be interpreted as widely as possible to encompass
the widest possible array of physical and mental abuses"56 (the emphasis is
ours)
172.
The Commission observes that a fundamental element in proving
allegations of cruel, inhuman and degrading treatment is showing the
compromise of integrity, either mental or physical, put differently, evidence of
ill-treatment.
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Further to this, the Commission also draws inspiration from the ECtHR
which held in Ireland v UK that:
" ... ill-treatment must attain a minimum level of severity if it is to fall within
the scope of Article 3 (art. 3). The assessment of this minimum is, in the nature
of things, relative; it depends on all the ACHPR 56 circumstances of the case,
such as the duration of the treatment, its physical or mental effects and, in some
cases, the sex, age and state of health of the victim, etc"57
174.
The Commission does not believe the Complainants presented facts or
evidence that demonstrate that the First Complainant experienced personal
suffering or humiliation that reached the minimum level,of intensity or severity
discussed above.
175.
The Commission is of the'opinion that the Complainant's averments do
not satisfy the burden of proof for ,contravention of Article 5 in its entirety. The
Commission has held in Civil Liberties Organisation, Legal Defence Centre
and Legal Defence and Assistance Project v. Nigeria that Complainants before
it bear the initial onus of laying a factual foundation in support of their
allegations especia~ly, allegations under Artide,5, which it has found must be
substantiated by the persons making them. 58
176.
The Commission views that Article 5 has not been violated.
Alleged violations of article 17 of the African Charter and Article 17 of the Maputo
Protocol
177.
The Complainants submit tf:tat Ms. Senate Masupha desires to practice
her customary culture and to ·s~rve her community as the rightful heir to her
father's chieftainship. They submit that the right to cultural life, and the State's
obligation to ensure that participation in cultural life is not discriminatory, is
guaranteed under the African Charter and the Maputo Protocol.
178.
The Complainants indicated that in the present case, Ms. Senate
Masupha desires to practice her customary culture and to serve her community
as the rightful heir to her father's chieftainship. They further argue that she
embodies what, the Maputo Protocol, in its preamble, recognizes as "the crucial
role of women in the preservation of African values based on the principles of equality,
peace, freedom, dignity, justice, solidarity and democracy".
179.
Article 17(2) of the Charter protects the right of every individual,
without discrimination, to participate in cultural life. It states that:
180.
Article 17 of the Maputo Protocol:
1) Women shall have the right to live in a positive cultural context and to
participate at fi-ll levels in the determination of cultural policies.
2) States Parties shall take all appropriate measures to enhance the participation
of women in the formulation of cultural policies at all levels."
181.
The Commission observes that Article ,·lTof the Charter has no "clawback" clause. In Centre for Minority Rights Dev~~opment (Kenya) and
Minority Rights Group (on behalf of Endorois.Welfare Council) v Kenya the
Commission noted that:
,.
"The absence of a claw-back clause is an indicaHr,m that the drafters of the
Charter envisaged few, if any, circumstances:in which it .would be appropriate
to limit a people's right to culture. It further notes that even if the Respondent
State were to put some limitation on the exercise of such a right, the restriction
must be proportionate to a legithnate aim that does not interfere adversely on
the exercise of a community's cultural rights.1/ 59
182.
The Commission recalls the obligations incumbent on States Party to the
Charter under Article 17(2) as enunciated in its Pretoria Declaration on
Economic, Social and Cultural Rights in Africa:
9. The right to culture in articles 17and 18 of the African Charter entail among
other things the following:
1.Pos.itive African values consistent with international human rights
rea}i'tifs and s,tandards;
2:Eradication of harmful traditional practices that negatively affect
· human rights;
3.I;'articipation at all levels in the determination of cultural policies and
in cultural and artistic activities;
4.Measures for safeguarding, protecting and building awareness of
tangible and intangible cultural heritage, including traditional
knoioledge systems;6o
183.
The Commission also revisits its Principles and guidelines on the
implementation of Economic, Social and Cultural rights in the African
Charter on Human and Peoples' Rights:
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60
(2004) ( !illJ2.0/achpr.au.int/ ind ex.php/e n/nod e/8 76 )
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"The right to take part in cultural life vests in the individual and should be
protected as such by states parties ... It refers not only to the enjoyment of
cultural activities and access to materials but to participation, policy-making
and artistic freedom. "61
184.
The Guidelines also indicate that Article 17(2) imposes an obligation on
States party to the Charter to:
a. Ensure participation at all levels in the determination of cultural policies and
in cultural and artistic activities; 62
185.
The Commission also takes note of the United Nations' General
Comment N o.21 on the Right of everyone to take part in cultural life
interpreting Article 15(1)(a) of the,Internahonal Covenant on Economic, Social
and Cultural Rights. Under the discussion on Core Obligations, General
Comment No. 21 stipulates thatthe right to-Cultural life enjoins States:
(a) To take legi,slative and any other necessary steps to guarantee nondiscrimination and gender equality in the enjoyment of the right of everyone to
take part in cultural life;
(b) To respect the right of everyone to identify or not identify themselves with
one or more communities, and the right to change their choice;
(c) To respect and protect the right of everyone to engage in their own cultural
practic;es, while respecting human rights which entails, in particular, respecting
freedom of thought, belief and religi,on; freedom of opinion and expression; a
person's right to use the language of his or her choice; freedom of association
and peaceful assembly; and freedom
to choose and set up educational establishments;
(d) To eliminate any barrie_rs or obstacles that inhibit or restrict a person's
access to the person's own culture or to other cultures, without discrimination
and without consideration for frontiers of any kind;
(e) To allow and encourage the participation of persons belongi,ng to minority
groups, indigenous peoples or to other communities in the design and
implementation of laws and policies that affect- them. In particular, States
parties should obtain their free and informed prior consent when the
preservation of their cultural resources, especially those associated with their
way of life and cultural expression, are at risk. 63
186.
The Commission recalls its findings above that the exclusion of the First
Complaint succeeding her deceased father's throne, unjustifiably discriminates
her on the basis of sex and gender. The very premise of her discrimination
denies her, her ability to participate in the cultural life of her community
particularly as the Chief. The Commission considers that the exercise of the role
of Chieftaincy entails a nuanced cultural role and experience, which the F~t.:::::-::..,. .
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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 -
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1) Stat-es Parties shall take specific positive action to promote par
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governance and the equal participation of women in the political/;
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countries through affirmative action, enabling national legislation and other
measures to ensure that:
a) women participate without any discrimination in all elections;
b) women are represented equally at all levels with men in all electoral
processes;
c) women are equal partners with men at all levels of development and
implementation of State policies and development programmes.
2) States Parties shall ensure increased and effective representation and
participation of women at all levels of decision-making."
192.
In Legal Resources Foundation v Zambia, 64 the Commission recognised
that discrimination in public and political life is harmful to the public good. It
has held that discrimination over who can stand for public office means that
"the country may be deprived of the leadership and resourcefuln~ss such a
person may bring to national life". 65
193.
The Commission observes that the position of chief in Basotho culture is
not merely a nominal or ceremonial role. Chieftainship is integral to
governance in Lesotho. 66 Under the Chieftainship Act, chiefs fulfil several
political functions. For example, section 6(1) of the Act prescribes that it is the
duty of the chief to support,,aid, and maintaiQ the King; to serve the people in
the area of the chief's authority;, to promote their welfare and lawful interests;
and to maintain public safety arn;l public order. Under section 7 of the Act,
chiefs are given several law enforcement duties and powers.
194.
Noting the significance of Chieftaincy, as well as the fact that the
Respond~nt State is a Monarchy, the Commission views that traditional
leadership constitutes Government under Article 13.
195.
In Egyptian Initiative for Personal Rights and Interights v Egypt, 67 the
Commission has held that discrimination against women is particularly
unjustifiable where it is systematic, entails detrimental consequences and
where it is used as a means of silencing women from expressing political and
social opinions.
196.
Noting its findings above on Equality and non-discrimination as well as
Cultural life, the Commission finds that the Respondent State has violated its
obligations under Article 13 of the Charter and 9 of the Maputo Protocol.
64 Communication 211/98, Legal Resources Foundation v Zambia .
65 Id at para 63
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66 See, for example, Juma, L "Chieftainship Succession and Gender Equality in Lesot ho: Negotiating th ,-r,~:1~f't(-,
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Equality in a Jungle of Pluralism" Texas Journal of Women and the Law 2013 (2) 101 at 148. See also (?Vr',can B ~ ?-0
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Sotho La""'.s and Customs ( 1960} ~t. 4 7. _Se~ a ls_o sectio~s 10_3-104 ~f the Constitution, together with _/gri ed : 2/ t~l~ 1
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that sa nction and protect the pol1t1cal institution of ch1eftainsh1p 1n Lesotho .
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Alleged violations of article 14 and 16 of the Charter, and articles 5, 14 and 21(2) of
the Maputo Protocol Charter
197.
The Complainants submitted that the preclusion of first-born daughters
from succeeding their fathers as chiefs prevented them from being heirs to their
deceased father's estate under customary law. Further, the Complainants
submit that by denying women the rightful ownership of property, the law
disempowers women in important ways that inevitably impacts their access to
healthcare. Further to the above, the Complainants submitted that aaccording
to the 2014 Lesotho Demographic Health Survey, 25% of adults aged 15-49 in
Lesotho are HIV positive and HIV prevalence is. higher among women (30 %)
than men (19 %). 68 They indicated that there is extensive research evidencing
that disempowerment, inequality and discrimination against women
exacerbates their vulnerability to contracting HIV.
198.
The Commission notes that the Complainants has not made
substantiated submissions on property, · succession and health. Firstly, the
Complainants' pleadings do not bring to fore that s10 of the Chieftaincy Act
and the Court of Appeal's decision prevented her from succeeding the property
of her deceased father specifically in a manner that violates her right to
property.
199.
Moreover, the Complainants have also not pleaded on how it amounts
to a denial of right to enjoy the best attainable state of physical and mental
health. The Commission notes in the Complainants have not established what
breach arises from the statistics submitted and what, if any, is their legal
implication for the present proceedings. The Commission retains questions on
the responsibility of the Respondent State or the obligations breached.
200.
The Commission reiterates and emphasises the fundamental principle
that he who alleges must prove. 69 Without cogent submissions and compelling
evidence, the Commission is unable to conclusively adjudicate these
allegations on the violation of the Charter.
201.
The Commission concludes that the Respondent State has not violated
Articles 14 and 16 of the Charter, and articles 5, 14 and 21(2) of the Maputo
Protocol Charter.
Violations of Article 1 of the Charter
202.
The Commission held in Abdel Hadi, Ali Radi& Others v Republic of
70
Sudan that "if a State Party fails to respect, protect, promote or fulfil any of
the rights guaranteed in the African Charter, this constitutes a violation of
Article 1 of the African Charter." The African Court on Human and Peoples'
Rights also reached the same conclusion in the Thomas v. Tanzania where it
held that the obligation under Article 1 of the African Charter is not complied
with or is violated when any of the rights, duties or freedoms set out in the
African Charter have been restricted, violated or not applied.
203.
In line with practice of the Commission in which it held that the violation
of any of the provisions of the African Charter automatically means a violation
Article 1 of the African Charter. The Commission finds that the Respondent
State has violated Article 1 of the Charter.
THE COMMISSION'S DECISION ON THE MERITS
204.
In light of the foregoing reasons, the African Commission declares that
the Respondent State is in violation of Articles 1, 2, 3, 13, 1, 1, 17 and 18(3) of
the African Ch.a rter and Articles 2, 3, 8, 9, .and 17, ~f the Maputo Protocol.
205.
In view of the above, the Commission:
a. Recommends that the Government of Lesotho reviews the Chieftainship
Act to provide for the succession of a deceased chief's first-born child,
irrespective of gender, with females on equal terms with males.
b. Recomme,nds thqt the Government of Lesotho encourages and facilitates
the development of customary practice to include women, on equal
terms with males, for consideration in customary leadership roles.
c. Requests that the Government of Lesotho takes further action to make
communities aware of the legislative changes and allocate resources to
ensure the equality of women in Basotho society.
Done, at the:78 th Ordinary Session of the Commission on Human and
Peoples' Rights held virtually from 23 February to 8 March 2024
°Communication 368/09- Abdel Hadi, Ali Radi & Others v Republic of Sudan
7
DISSENTING OPINION OF THE HONOURABLE COMMISSIONER REMY
NGOY LUMBU ON WHETHER DIFFERENTIAL TREATMENT BASED ON
CUSTOM (POSSIBLY
RELIGION) IS DISCRIMINATORY UNDER THE
.
AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS
'
.
1. In this communication, voted on 30 May 2024 in Banjul, by 7 Commissioners
(for) and 3 Commissioners (against), I did not vote as and with the majority.
That is why, in accordance with the relevant procedural law of the
Commission, I am drafting this dissenting opinion.
2. Paragraph 10 of the communication reproduces the complainants' allegations
and states:
To hold that Section 10 of the Chieftainship Act71, to the.. extent,that it
excludes all eldest daughters from their father's succession as chiefs,
and the Constitution of Lesotho, to the extent that it permits such
discrimination, violates Articles 1, 2, 3, 5, 13, 14, 16, 17 and 18(3) of the
Charter and Articles 2, 3, 5, 8{f);,9, 13, 14, 17 and 21(2) of the Maputo
Protocol.
3. The issue at stake is whetherthe customary rules governing the access to the
throne of the Chief, which the . law and the Constitution of Lesotho have
legalized, are discriminatory against girls of the customary lineage, insofar as
they only allow boys.
4. The Commission considered that there is a violation of Article 2 of the Charter
in this case, thus opening, in our opinion, a breach to which many other
embarrassing situations could be rushed in the future, under custom or religion
(the present case concerns only the first). It could be, as I think very strongly,
that potential complainants question the Commission in the future if the barrier
to access to the functions of Rabbi (Judaism), Priest (Catholicism) or Pastor
(Protestantism)' or I~an (Islam), enshrined in sacred texts, is not discriminatory
under the Charter or the Maputo Protocol. In the event of a positive response
based on the precedent of this communication, do we really think that these
monotheistic religions will apply this kind of decision or recommendation?
on matriarchy, women receive considerable advantages that men never had
before, in the time of our forefathers, and will not have tomorrow. I am
fundamentally of {he opinion that the identity of Africa is in its ancestral
traditions and ancient values that it would benefit from safeguarding. To erect
the corpus Juris of human rights as a censor and corrector of African customs
seemed to me to be an insurmountable red line, but one that has been crossed
all the same, in favor of the conclusions of this communication. Who will
prevent the Commission tomorrow from examining the conventionality of
certain rules and traditions such as for example "the rule of the request of the
hand" (proposal of marriage), of customary or religious origin, devolved to
men in the vast majority of African societies?
6. I was not followed by my colleagues, whose opinion I also respect, when
reading the preparatory work df the Charter, I recalled the following:
the preliminary draft is built around a k~y iqea, namely that the
African Charter on Human and Peoples' Rights must reflect the
African conception of human rights. Consequently, it is not a question
of copying outright what has been done in other regions or even at
universal level. The African Charter on Human and Peoples' Rights
must be inspired by the African philosophy of law and must respond
to the needs of Africa. 72
7. This decision seems to me to be very far from the African conception of human
rights and seems, to me, to be a push of feminist militant ideas and issues. I
wondered if it was not due to _the current configuration of the Commission (six
women and five men). My fear now (legitimate?) is that other feminist causes
will prevail through the play of simple arithmetic rules and this will be a pity
for the balance that must be maintained between religious and customary
values on the one hand, and the principles of human rights on the other.
in the fact that it is a communication adopted by state default? We will never
know.
9. How to understand, in paragraph 145 for example, the ease with which the
Commission inferred from a prima facie evidence of a difference in treatment
between parties in a similar situation, eldest sons heirs to the throne against
eldest daughters n9t heirs of the latter (although this situation can customarily
be rectified if they married eldest sons of other thrones); forgetting that even if
this issue were settled, it would create other anomalies drawn from the
situation of other ordinary citizens (girls or boys) within the same tribe who are
totally excluded from this customary succession. The question here is, what
will the Commission say tomorrow whenJhe other members of the tribe who
do not belong to the Chief's family also ask for -a finding of discrimination in
access to the throne? For me, customs, such as religion, are sacred and
insusceptible to control by trealy bodies. The Commission haq to follow, for
this matter precisely, the reasoning, in my view rational and prudent, of the
National Judge, that of the Constitutiona~ Coprt of Lesothq (paragraph 43)
reproduced in paragraph 109 ofJhis _corrimunication. I still wonder if the right
decision would not have been to confirm this excellent reasoning of the
National Judge on this major i1?sue. Justas the Commission did indeed have the
possibility to state that differential treatm~nt based on customary or religious
values does not fall within the scope of its review of conventionality and is
beyond its scrutiny. The founding fathers of the Charter had mandated the
Commission to monitor human and peoples' rights by aligning them with our
values and cultural: traditions.
10. Lastly, the Comtnission would have had much to gain by taking its time on this
issue (as ·it always doe~), c;ielving deeper into the subject, and calling on the
good offices of its partners via the amicus curiae procedure, to enlighten its
sovereign religion. Here too, I had the feeling that the desire to quickly decide,
the push of ultra-progressive feminist ideas, a very noble and respectable fight
elsewhere, were right in a rational and prudent approach to postpone again the
adoption of the case for a final attempt to find good arguments. I then ask
myself the following question: will it be a communication of principle?