FOR generations, children born out of wedlock in Lesotho have carried a burden they did not choose.
They have lived with the quiet but cruel reality that the law, and often society itself viewed them as lesser, undeserving of rights enjoyed by others simply because of the circumstances of their birth.
In matters of inheritance especially, these children have endured exclusion, poverty and indignity, shut out from estates they helped build through love, labour and loyalty to their parents.
Last month’s landmark judgment affirming the right of children born out of wedlock to inherit from their deceased parents therefore marks more than a legal victory. It is moral redress for decades of institutionalised discrimination, and a long-overdue acknowledgement that a child’s worth cannot be measured by the marital status of their parents.
The Constitutional Court’s endorsement of equal inheritance rights, reinforced by the Administration of Estates and Inheritance Act of 2024, signals a decisive break from an unjust past. It confronts head-on the harsh legacy of customary and statutory rules that punished children for decisions made by adults. Those rules did not merely regulate inheritance; they entrenched inequality, particularly against women and girls, and helped to reproduce cycles of vulnerability and dispossession.
Under the old customary law, children born out of wedlock could inherit only from their mothers, even where their fathers had openly acknowledged, raised and supported them. This legal fiction ignored social realities and rewarded irresponsibility. Men could evade lifelong obligations to their children simply by avoiding marriage, while extended families could dispossess daughters and “illegitimate” children with the backing of the law. It was discrimination wearing the mask of tradition.
The recent ruling strips away that mask. By recognising that all biological children, once acknowledged or legitimised, are equal before the law, the court has reaffirmed a foundational constitutional principle: equality and dignity belong to everyone, not just the socially convenient. This is especially significant in a country where customary law continues to shape daily life, and where women and children have historically borne the brunt of its more exclusionary interpretations.
Importantly, the judgment does not reject customary law wholesale. Instead, it clarifies what the Constitution has always required, that custom must evolve and that it cannot survive where it offends basic human rights. Customary law, after all, was never meant to be static. It has always adapted to social change, and this decision represents such an adaptation, aligning tradition with justice.
For the many Basotho who grew up knowing their fathers but were denied recognition as heirs, the ruling offers both hope and healing. It tells them that the law now sees them, that their bond with their parents was real and meaningful, and that they are no longer legal outsiders in their own families. For women, who have often been doubly marginalised as mothers of children born out of wedlock and as daughters excluded from inheritance, the decision is equally affirming.
Yet celebration must be tempered with vigilance. Progressive judgments do not automatically translate into lived equality. Deeply entrenched social attitudes will not disappear overnight. Some families may continue to resist recognising children born out of wedlock, and disputes over “legitimisation” are likely to surface in courts for years to come. The state, traditional leaders and civil society must therefore play an active role in educating communities about the new legal landscape and ensuring that the spirit of the law is honoured in practice.
There is also a clear administrative challenge ahead. Estate administration systems must be capacitated to implement the new law fairly and efficiently. Delays, bureaucratic inertia or selective enforcement would undermine the very justice the judgment seeks to deliver. The Master of the High Court, the Land Administration Authority and other institutions must rise to the occasion.
This moment also calls for introspection. The suffering of children born out of wedlock was never inevitable; it was legally constructed and socially tolerated. That it took so long to correct speaks volumes about whose voices have historically mattered in shaping our laws. The courage of individuals who challenge injustice, often at great personal cost, reminds us that legal reform is rarely gifted — it is demanded.
Ultimately, this ruling affirms a simple but powerful truth: children are not mistakes. They are not bargaining chips in adult relationships, nor are they stains on family honour. They are rights-bearing individuals entitled to protection, love and fairness.
For those who have waited a lifetime to be recognised as equal heirs, the law has finally caught up with justice. That relief is not just theirs; it is a victory for Lesotho’s constitutional promise of dignity and equality for all.
AGOA is not charity, but is critical for Lesotho’s economy