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Court seals Senate’s fate

Appeal Court says Constitutional Court was right in ruling that girl-children cannot succeed their fathers as chiefs

Tefo Tefo

FORMER Lesotho Counsellor in Rome, Senate Masupha, who lost a protracted legal battle to succeed her late father as principal chief of Ha-‘Mamathe, Thupa-Kubu and Jorotane last week, has called for a review of Basotho’s “gender-discriminatory” customs.

Masupha told the Sunday Express on Friday — a day after the Court of Appeal sealed her fate — that although she had lost the case, the judgment had left the nation with laws which still need to be reviewed to accommodate everyone’s fundamental human rights.

Through her lawyer, Advocate Kananelo Mosito KC, Masupha argued that the Constitutional Court was wrong in ruling against her on May 18, 2013 simply because of her gender.
Mosito told the Appeal Court that Senate was the rightful heir to her father’s throne because she was the only legitimate child of the late principal chief, David Gabashane Masupha and ‘Masenate.
“This case is a result of a dispute from a conflict where the respondents (the family) contested succession in the chieftainship. She attempted to intervene,” Mosito told the court.
“The issue she asked was to seek a declaratory that as the daughter of the late chief, and the only child in the marriage, she should be considered for the position regardless of her gender and status of being unmarried.
“She says because her parents were married under the civil rights marriage, no customary marriage could be constructed during the existence of the civil rights marriage.
“She says her father attempted to get into marriage with the mother of the 4th respondent (Lepoqo David Masupha), but the marriage was nullified in 1978.”

Lepoqo is also contesting the chieftainship on grounds that his father did not have any sons with his first wife, Senate’s mother.

However, Mosito argued the marriage between Lepoqo’s mother and Masupha was invalid because the late chief’s first marriage was under civil law, which he said did not allow polygamy.
But the Court of Appeal on Thursday upheld the Constitutional Court ruling, which said provisions of the Chieftainship Act of 1968 that prohibited girl-children from succeeding their parents as chiefs, were proper.
Yet despite Thursday’s ruling, Masupha still argues “something should be done” to eliminate discriminatory customary requirements in the chieftainship succession.
“Even the judgment indicates that this matter doesn’t end here. There should be a solution to this matter, although I am still yet to study the ruling fully.
“The situation, as I see it now, is that it seems females are non-existent when it comes to certain issues in this country. This matter can be resolved by revisiting our culture; as much as we respect our culture, as women, the same culture should also respect us. I’m not against culture, but it should not overlook people’s rights,” she said.

Masupha further told the Sunday Express she was working closely with local and foreign civic bodies to fight for Lesotho women’s rights as far as the chieftainship succession is concerned.
Among the organisations Masupha said she was collaborating with are the Federation of Women Lawyers (FIDA), Women and Law in Southern Africa (WLSA) and Southern Africa Litigation Centre (SALC).
The three societies were also part of the court-proceedings and joined as “friends of court”.

The SALC Deputy Director Priti Patel on Thursday described the Court of Appeal judgment as “a dark day for women in Lesotho”.
“The Court of Appeal has re-affirmed that women remain second-class citizens in Lesotho.
“In recent years, Lesotho had made significant strides towards eradicating gender-discrimination, by ending male marital power, among other things. But this ruling sends a clear signal that it is still permissible to discriminate against women solely because they are women.”

Senate is the first-born child of the late Principal Chief David Gabashane Masupha and his wife, the late ‘Masenate.
Masupha passed away in 1996 and his wife, ‘Masenate, became chief as provided for under Section 10(4) of the Chieftainship Act of 1968. However, ‘Masenate passed away on December 6, 2008 and David’s younger brother, Sempe Gabashane Masupha, subsequently instituted proceedings in the Berea Magistrate’s Court, seeking to be installed principal chief.

But the claim was contested by Lepoqo David Masupha, born of the late principal chief’s second wife. Lepoqo’s mother was also on her son’s side in contesting the claim.
Senate was not cited in those court proceedings, but later made an application for permission to have the case referred to the High Court because of its constitutional implications.

The constitutional issues she raised were that the Chieftainship Act only provided for sons to succeed their fathers as chiefs, which she said was unfair, discriminatory and unconstitutional.
It is the same case that she lost in the High Court, in which the court was constituted as the Constitutional Court.
After the Constitutional Court ruled against her, Masupha took up her case with the Court of Appeal, and lost again on Thursday.
The battle for the principal chieftainship for Ha-‘Mamathe, Thupa-Kubu and Jorotane now remains between Sempe and Lepoqo.

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