Maseru, Dec. 14 — The High Court sitting as a Constitutional Court has reserved judgment in a case in which the constitutionality of the Laws of Lerotholi and Children’s Protection and Welfare Act is challenged.
This is after the Court heard arguments. It had previously dismissed non-jurisdiction points raised by the respondents. It indicated that the points lack merit adding that it (the court) has jurisdiction to hear the case.
The applicant Tholoana Molapo is seeking the Court to assist her in terms of her right to inherit her natural father’s property. She is among others seeking a declarator that section 11 (1) of the Laws of Lerotholi is abolished and superseded by section 19 of the Children’s Protection and Welfare Act 2011 pursuant to section 18 (4) (e), 25 and 26 of the Lesotho Constitution 1993.
She is also asking for a declarator that section 11 (1) of the Laws of Lerotholi read with section 19 of the Children’s Protection and Welfare Act, 2011 on the customary law rule of male primogeniture violates the best interest of the child and is invalid and inconsistent with the Constitution to the extent that it excludes or hinders female children/women and extra-marital children from inheriting property.
When addressing the Court, her legal representative Advocate Fusi Sehapi has stated that she (applicant) has the right to access the property of her biological father. He indicated that under the Land Act, the applicant has an avenue to access the property. He added that the Act is gender blind further adding that the applicant is entitled to the inheritance.
He argued that section 11 of the Laws of Lerotholi is discriminatory in terms of gender and birth.
The applicant in her papers says section 11 (1) of The Laws of Lerotholi outlaws every child and/or women’s rights to inherit property of their parents. She states that it provides that ” The heir in Basutuland shall be first male child of the first married wife, and if there is no male in the first house then the first-born male child of the next wife married in succession shall be the heir.”
She adds that subsection 2 of the same law provides thus” If there is no male child in any house the senior wife shall be the heir, but according to the custom she is expected to consult the relatives of her deceased husband who are her proper advisors.”
The applicant indicates that section 3 of the Children’s Protection and Welfare Act defines a word ‘child’ to the extent that it is a person below 18 years. She adds that section 19 of the same Act hinders extra marital children from inheriting the properties of their fathers. She further adds that the Act provides that extramarital children will only inherit the properties of their mothers.
She points out that the effect of these laws is to discriminate against girls and women from inheriting and administering property based on their sex and/or gender alone. She says the laws discriminate between men and women who bear children out of wedlock.
The applicant indicates that women who bear children outside marriages are burdened with liability to provide property open for inheritance by their illegitimate children, while men who bear the illegitimate children are unreasonably and unjustifiably spared from providing property for inheritance to such children.
She emphasises that the discriminations are unreasonable, unnecessary and overboard. She adds that they are thus invalid and unconstitutional. She adds that they violate the rights to equal protection and benefit of the law together with freedom from any discrimination as envisaged in the Constitution.
The case is before Judges Polo Banyane, Realeboha Mathaba and Tseliso Mokoko.
