Texas Journal of Women and the Law, Volume 22, Number 2, Spring 2013 Page: 205
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2013 Chieftainship Succession and Gender Equality in Lesotho
the potential to streamline informal rules and bring equity to methods of
chieftainship appointment have become difficult to sustain. To explicate
the precise nature of the problem, it is worthwhile to examine the
procedures for chieftainship succession as established by law and scrutinize
their shortcomings in meeting the goals of gender equity as envisaged by
the Constitution and international human rights law.
2. Debating the Status of Chiefs
Apart from the general, changing nature of the chieftainship
institution, the dynamics inherent in its relationship with the government
suggest that the position has acquired a distinct status that moves it away
from the hold of customary law. If this is so, the chieftainship envisaged in
10 of the Chieftainship Act is not purely a customary institution.
Therefore, the benefits of the customary law exemption should be
applicable. As we have seen, the nature of chieftainship as an institution
has evolved since 1938, when the first regulatory framework was
established. The current Chieftainship Act and the Constitution have
completely taken the institution out of the realm of customary law and
established it firmly as an organ of civil service. This is evident from the
methods of appointment which now require approval of the Minister and
official publication, limitation of functions, and moderated insertion into
structures of governance established under the constitutional framework;
elaborate disciplinary processes and methods of removal; and complete
separation from the judiciary.307 All of these attributes indicate that the
institution is meant to discharge its functions according to the ethos of the
Constitution.
In the past, the chief performed functions dictated by custom; these
functions were unlimited except, perhaps, by public opinion.308 Even in the
early days of colonial administration, the chief, by virtue of 8(1) of the
1938 Proclamation, was allowed to issue orders "prohibiting, restricting,
regulating, or requiring to be done any matter or thing which the paramount
chief, by virtue of any native law or custom for the time being in force...
."309 This power was, of course, subject to the repugnancy clause.
Under present arrangements, chiefs are subordinated to the government in
ways that do not allow them to resort to custom in dealing with their
subjects. The Chieftainship Act, in prescribing functions for chiefs, affirms
307. Id. at 138.
308. See Rugege, supra note 275, at 148 (asserting that the pre-colonial chiefs were
responsible for security of their people, maintenance of public order, custodianship of all
resources, resolution of disputes, and provision of assistance to the indigent).
309. Chieftainship (Powers) Proclamation 61 of 1938 9(1)(u).
310. Id.205
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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/m1/83/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.