Wakilii

Masupha & Others v Kingdom of Lesotho (Communication 480-14)

African Commission on Human and Peoples' Rights · [2024] ACHPR 13 (3 May 2024) · 2024 Communication Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication before the African Commission on Human and Peoples' Rights challenging discriminatory chieftainship succession law
Decision
Communication upheld. Lesotho found in violation of multiple Charter and Protocol provisions. Recommendations issued for legislative reform.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that Section 10 of Lesotho's Chieftainship Act, which excludes first-born daughters from succeeding as chiefs while permitting first-born sons, constitutes unjustifiable discrimination on the basis of sex and violates Articles 2, 3, 13, 17 and 18(3) of the African Charter and Articles 2, 3, 8, 9 and 17 of the Maputo Protocol. The Commission found no legitimate justification for the blanket exclusion and directed Lesotho to amend the Act to permit succession irrespective of gender.

Outcome

Communication upheld. Lesotho found in violation of multiple Charter and Protocol provisions. Recommendations issued for legislative reform.

Facts

Ms Senate Masupha, the eldest daughter and only child of late Principal Chief David Masupha, was denied succession to the chieftainship following her mother's death in 2008. At a February 2009 family meeting held in her absence, Lepoqo Masupha, alleged to be an illegitimate son of the late Chief, was appointed successor with Majara Masupha as Acting Chief. When Ms Masupha sought to intervene in domestic court proceedings, the Magistrate's Court dismissed her application, holding that women had no direct and substantial interest in succession matters under Lesotho law. The Constitutional Court and Court of Appeal both upheld Section 10 of the Chieftainship Act 22 of 1968, which permits only male succession. The Appeal Court held that the constitutional exception for customary law under Section 18(4)(c) permitted this discrimination. Ms Masupha, along with FIDA-Lesotho and SALC, filed a communication with the African Commission alleging violations of the African Charter and Maputo Protocol.

Issues

  1. Whether Section 10 of the Chieftainship Act 22 of 1968, which excludes all first-born female children from chieftainship succession, constitutes unlawful discrimination on the basis of sex in violation of the African Charter and the Maputo Protocol.
  2. Whether the Commission has contentious jurisdiction to interpret and apply the Maputo Protocol following the establishment of the African Court on Human and Peoples' Rights.
  3. Whether the constitutional exception for customary law under Section 18(4)(c) of the Constitution of Lesotho justifies differential treatment based on sex in chieftainship succession.

Orders

  • Communication declared admissible.
  • Respondent State found in violation of Articles 1, 2, 3, 13, 17 and 18(3) of the African Charter.
  • Respondent State found in violation of Articles 2, 3, 8, 9 and 17 of the Maputo Protocol.
  • Government of Lesotho recommended to review the Chieftainship Act to provide for succession of a deceased chief's first-born child irrespective of gender.
  • Government of Lesotho recommended to encourage and facilitate development of customary practice to include women on equal terms in customary leadership roles.
  • Government of Lesotho requested to take further action to raise community awareness of legislative changes and allocate resources to ensure equality of women in Basotho society.

Rules and key headnotes

Non-Discrimination — Sex-Based Discrimination in Customary Law — Test for Justifiable Differential Treatment
Differential treatment on the basis of sex constitutes unlawful discrimination unless the State demonstrates that the distinction serves a legitimate aim and is a necessary and proportionate means to achieve that aim in a democratic society. References to tradition or custom are insufficient justification for sex-based discrimination.
African Commission Jurisdiction — Material Jurisdiction over Maputo Protocol — Effect of African Court Establishment
The African Commission retains contentious jurisdiction over the Maputo Protocol following establishment of the African Court. Article 32 of the Protocol is a transitional provision that regulated coming into operation of Article 27 but did not terminate the Commission's jurisdiction. The Commission's jurisdiction over the Protocol is derived principally from Article 45 read with Article 66 of the African Charter, which permits adoption of special protocols supplementing the Charter.
Right to Participate in Cultural Life — Discriminatory Barriers to Cultural Participation
The right to participate in cultural life includes not only enjoyment of cultural activities but participation in policy-making and cultural leadership. States must eliminate barriers that restrict a person's access to cultural life on discriminatory grounds. Exclusion from chieftainship denies women the ability to participate in the cultural life of their community at the level of leadership and policy formulation.
Right to Participate in Government — Traditional Leadership as Government
Traditional leadership constitutes government within the meaning of Article 13 of the African Charter where, as in Lesotho, chiefs fulfil integral governance functions including maintaining public order, supporting the King, serving the people and exercising law enforcement duties. Systematic discrimination against women in access to such leadership roles violates the right to equal access to public service.
Burden of Proof — Prima Facie Case of Discrimination — Shift of Onus
Where a complainant demonstrates prima facie differential treatment of analogously situated parties, the burden shifts to the respondent State to either dispute that the treatment was differential or justify the differential treatment. Where the State defaults in its participation, a presumption of unjustifiability arises.

Legislation cited (27)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 13
  • African Charter on Human and Peoples' Rights Article 14
  • African Charter on Human and Peoples' Rights Article 16
  • African Charter on Human and Peoples' Rights Article 17
  • African Charter on Human and Peoples' Rights Article 18(3)
  • African Charter on Human and Peoples' Rights Article 45
  • African Charter on Human and Peoples' Rights Article 56
  • African Charter on Human and Peoples' Rights Article 60
  • Maputo Protocol Article 2
  • Maputo Protocol Article 3
  • Maputo Protocol Article 5
  • Maputo Protocol Article 8(f)
  • Maputo Protocol Article 9
  • Maputo Protocol Article 14
  • Maputo Protocol Article 17
  • Maputo Protocol Article 21(2)
  • Maputo Protocol Article 27
  • Maputo Protocol Article 32
  • Chieftainship Act 22 of 1968 (Lesotho) s.10
  • Constitution of Lesotho s.4
  • Constitution of Lesotho s.18
  • Constitution of Lesotho s.18(4)(c)
  • Constitution of Lesotho s.19

Cases cited (15)

  • Purohit and Moore v The Gambia (Communication 241/01)
  • Kenneth Good v Republic of Botswana
  • Legal Resources Foundation v Zambia (Communication 211/98)
  • Egyptian Initiative for Personal Rights and Inter-rights v Egypt (Communication 323/06)
  • International Pen and Others v Nigeria (Communications 137/94, 139/94, 154/96 & 161/97)
  • Curtis Doebler v Sudan (Communication 236/2000)
  • Centre for Minority Rights Development v Kenya (Communication 276/03)
  • Zimbabwe Lawyers for Human Rights v Zimbabwe (Communication 294/2004)
  • Alfred B Cudjoe v Ghana (Communication 221/98)
  • Abdel Hadi & Others v Sudan (Communication 368/09)
  • Civil Liberties Organisation, Legal Defence Centre and Legal Defence and Assistance Project v. Nigeria
  • Constitutional Rights Project v Nigeria (2000) AHRLR 227
  • Cotton Field case (Inter-American Court)
  • Ireland v UK (European Court of Human Rights)
  • Thomas v. Tanzania (African Court)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Masupha & Others v Kingdom of Lesotho (Communication 480-14) [2024] ACHPR 13 (3 May 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.