Texas Journal of Women and the Law, Volume 22, Number 2, Spring 2013 Page: 161
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2013 Chieftainship Succession and Gender Equality in Lesotho
state made it possible for the exclusion and marginalization of women to be
entrenched by law, first by the official customary law and later, by a system
of interlocking rules governing property, status, and even political
participation.12 Because these systems of law entrenched patriarchy and
legally permitted gender discrimination, they instigated the production of
an asymmetrical power balance in almost all aspects of societal life. That
is why, despite the adoption of a Bill of Rights, subtle and even explicit
forms of institutionalized power imbalance in gender relations have
survived with the unwelcome effect of creating a buffer to the realization of
legal equality between sexes.
This Article appraises the state of the law on gender equality and
discrimination in relation to chieftainship succession in Lesotho by
examining two interrelated issues. The first arises from 10 of the
Chieftainship Act of 1968 (the Act), which prescribes the law on
chieftainship succession but embodies the customary law principle of male
primogeniture.13 The Article questions whether succession, as mandated
by the Act, can pass constitutional muster given that it clearly violates the
guarantees of equality contained in 19 of the Constitution. The second
issue is the complexity that 18(4) of the 1993 Constitution creates by
exempting customary law from the constitutional prohibition against
discrimination.
In examining these issues, the Article begins by discussing the major
milestones in Lesotho's constitutional development since 1966. This
discussion illustrates why the interaction between indigenous institutions
and politics did not produce any major changes to the rules regarding
equality until the re-establishment of democracy in 1993. Thereafter, the
Article canvasses what one might consider to be the current state of the law
on gender equality and problematizes the operation of law by examining
the contradictory poles of legal pluralism. The main part of this Article
isolates and analyzes the debates regarding chieftainship succession under
the Act. It summarizes the nature of chieftainship institution vis-a-vis the
changing character of governance systems, the circumstances arising in the
context of Sesotho customary law for women to become chiefs, and the
to deliver the acute subordination of women in most African states).
12. Like all other African states dominated by colonial regimes at the turn of the
eighteenth and nineteenth centuries, Lesotho did not escape the pluralization of the legal
system and the imposition of a western legal infrastructure, which was alien to the
communal and fluid custom and traditional system of governance. See generally Peter
Fitzpatrick, Traditionalism and Traditional Law, 28 J. AFR. L. 20, 21 (1984); Laurence
Juma, From Repugnancy to Bill of Rights: African Customary Law and Human Rights in
Lesotho and South Africa, 21 SPECULUM JURIS 88 (2007) [hereinafter From Repugnancy to
Bill of Rights]; Elmarie Knoetze, Westernization or Promotion of African Women's Rights?,
20 SPECULUM JURIS 105 (2006).
13. Chieftainship Act No. 22 of 1968.161
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University of Texas at Austin. School of Law. Texas Journal of Women and the Law, Volume 22, Number 2, Spring 2013, periodical, Spring 2013; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth638862/m1/39/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.