Authored By: Puseletso Agnes Mpeisa
Abstract
This article investigates the prospects of the African Union Convention on Ending Violence against Women and Girls (AU-CEVAWG) domestication in the Kingdom of Kingdom of Lesotho to genuinely eradicate gender inequalities perpetuated by customary law and traditional practices. This article outlines that gender inequality remains a pervasive challenge in the Kingdom of Kingdom of Lesotho, deeply entrenched and often sustained by specific customary laws and traditional norms concerning inheritance, marriage, property rights, and decision-making. The AU-CEVAWG, as a comprehensive regional instrument, offers a robust legal framework designed to address these inequalities and eliminate violence against women and girls. The methodology of this compiling this article utilises a legal-analytical approach, case studies, and it involves an extensive online search using relevant keywords on scholarly websites such as Google Scholar and Anna’s Archive, which were used to source internet material that examines relevant customary norms against AU-CEWAWG provisions, highlighting the AU-CEVAWG’s anticipated potential to leverage significant legal reforms documentation was used. It argues that while domestication provides crucial legal impetus, its transformative impact on deeply rooted customary practices is profoundly contingent upon robust political will, comprehensive legal reform that directly addresses legal pluralism, and sustained community engagement to shift patriarchal norms and complements this by identifying potential arguments that the Kingdom of Kingdom of Lesotho may present but also furnishes legal defense strategies in support of these arguments. This analysis reveals both promising legal pathways and profound socio-cultural impediments, which underscores the complex, multi-faceted effort required for achieving transformative gender justice in the Kingdom of Kingdom of Lesotho and setting a precedent for similar contexts across Africa.
Key words: Customary law in Kingdom of Lesotho, Violence against women and girls in Kingdom of Lesotho, domestication of AU-CEVAWG in Kingdom of Lesotho, eradication of GBV-F in Kingdom of Lesotho
Introduction
Based on the UN WOMEN’s brief of 2022, Violence Against Women and Girls (VAWG) remains one of the most pervasive human rights violations across the globe[1] which is magnified by gender inequality as a deeply entrenched challenge across the African continent. The kingdom of Kingdom of Lesotho like many other countries is no exception. Despite constitutional guarantees[2] and international commitments that the Kingdom of Lesotho has ratified including among other the Maputo Protocol[3] in 2004 and CEDWA[4] in 1995, women and girls are said to continue to face systemic discrimination and violence which as each day comes the situation becomes dire, and often perpetuated by traditional norms and customary laws that run parallel to the general law. This legal pluralism, where customary law coexists with statutory law, creates a complex landscape for the advancement of gender equality within the constitutional monarchy country such as the Kingdom of Lesotho.
Customary practices are of critical issue in human rights concern, even though they are integral to Basotho culture, because of grave concern is that they have historically disadvantaged women and girls in critical areas such as property ownership, inheritance, marriage, and participation in traditional leadership structures which this article aims to explore. With the ultimate goal of bringing forth evidence base on how domesticating AU-CEVAWG could potentially provide a comprehensive legal framework for the prevention, protection, prosecution, and provision of reparations related to all forms of violence against women and girls in the Kingdom of Lesotho, among which the recently launched Model Law on Gender Equality, could serve as a crucial guiding framework, providing a template for member in the Kingdom of Lesotho to harmonise its domestic legislation with continental commitments. As a matter, this analysis will first provide a panoramic view of gender inequality and GBV-F in Kingdom of Lesotho, then delve into AU-CEVAWG’s legal framework, explore the challenges and opportunities in its domestication, and finally, discuss strategies for reconciling legal pluralism to foster transformative change.
Prevailing panoramic view on GBV-F and Gender Inequality
Gender-Based Violence and Femicide (GBV-F) and broader gender inequalities remain significant impediments to human rights and development in Kingdom of Lesotho. These issues are not merely episodic but are deeply embedded within the socio-cultural fabric, often rationalised or perpetuated by certain customary laws and traditional practices among which so many fought and for which so many gave their lives. GBV in Kingdom of Lesotho encompasses a range of harmful acts directed at individuals based on their gender, including physical, sexual, psychological, and economic violence as outlined by the Lesotho Mounted Police Service (LMPS) reports), and the gender-related killing of women and girls (Femicide), represents the most extreme manifestation of this violence. Beyond direct violence, gender inequality manifests in discriminatory access to resources, opportunities, and decision-making power.
Statistics, though not all cases are reported, indicate a high prevalence of GBV, which reflects on broader regional trends whereby both GBV-F and inequality are inextricably linked to the functioning of customary law and traditional practices. Beyond that, traditionally, customary law in Kingdom of Lesotho often prioritised male heirs, disinheriting women from land and property. While some legal reforms have been introduced, the practical application and community adherence to these older norms persist, leaving women vulnerable and economically dependent. This adds to economic marginalisation that is directly contributed to women and girls.
Furthermore, ‘Bohali’ translated as Bride Price) symbolises value and commitment, among which if sometimes be misused, contributing to the perception of women as property or commodities. This perception diminishes a woman’s agency and makes her more susceptible to control and abuse within the marital home, including sexual violence and forced cohabitation. Furthermore, Limited women’s land ownership and access to justice that are brought about Customary norms often restrict women’s direct ownership or control over land, tying their access to their male relatives. This lack of independent economic power limits their ability to leave abusive situations and seek justice, as they may fear losing their home and livelihood.
Moreover, the traditional leadership structures which largely exclude women and girls from formal traditional leadership roles predominantly reserved for male. This exclusion limits their participation in community decision-making processes, including those that govern customary law, thus perpetuating norms that may disadvantage them.
Additionally, the harmful traditional practices such as unintended marriages or child marriages contribute to gender inequality. For instance, some family totems practices or are of the belief that corporal punishment within marriage or limit women and girls ‘s public roles, indirectly fostering environments where violence is tolerated or normalised. The term ‘Chobeliso’ (abduction with a view to marriage) is a contentious issue in Kingdom of Lesotho’s legal landscape, highlighting how traditional customs can clash with statutory laws on consent and marriage, potentially leading to forced unions and violence.
Challenges in Justice Seeking: Survivors of GBV-F often face significant barriers in accessing justice through the formal legal system. These include stigma, fear of retribution, lack of awareness of their rights, and the perceived complexities or insensitivity of the formal justice system compared to more accessible, albeit sometimes problematic, traditional dispute resolution mechanisms. The deeply ingrained patriarchal norms within communities can also influence how cases are handled, potentially leading to underreporting and impunity.
The dual legal system in Kingdom of Lesotho further complicates matters. While statutory laws may prohibit certain discriminatory practices, their enforcement can be hampered by the continued adherence to customary norms, creating a gap between law and practice. This “prevailing panoramic view” highlights that for AU-CEVAWG’s domestication to be truly effective, it must directly confront and transform these customary and traditional roots of gender inequality and violence.
This prompts this study to ponder: Is SRHR, especially for girls under eighteen, aprominent topic in today’s discourse despite nearly three decades since the ICPD? Kingdom of Lesotho is a deeply violent society and has impact of Sexual Gender Based Violence and Femicide (SGBV-F) for which so many fought and for which so many gave their lives. There are however, other factors that have continued to eliminate or undermine human development and positive social cohesion. Issues of SGBV-F impact lives and well-being of survivors, children, families, communities and the nation as a whole. For this, it came into realization that through this program there should be an understanding, responding, preventing and ultimately eliminating SGBV-F in all aspects. SGBV-F is enabled by gender inequality and is rooted in patriarchal gender norms. Physical, economic, sexual and psychological abuses are main categories of SGBV-F. The most relatable examples of sexual form of SGBV-F include among others; rape, sexual harassment, trafficking of women and girls for sex and sexual exploitation. Furthermore, economic form of SGBV-F involves economic abuse whereby financial resources are controlled and withheld; as a matter of fact, this usually has a significant impact on the lives of women and children often leaving them with no choice but to remain in abusive relationships. Consequently, when women leave abusive relationships, financial abuse often continues through withholding of child maintenance. Moreover, physical form of SGBV-F includes cultural practices as they are key drivers of SGBV-F and those consist of early child marriage and genital mutilation. Another example is allegations of witchcraft done mostly unto women mostly living in the poor families in rural communities. Emotional form of SGBV-F includes way to control another person by using emotions to criticize, embarrass, shame, blame, or otherwise manipulate another person. In general, a relationship is emotionally abusive when there is a consistent pattern of abusive words and bullying behaviors that wear down a person’s self-esteem and undermine their mental health. So, in the whole scenario one may find that from a wide range of perpetrators intimate partners are the most common abusers. Despite that, there are also non-partner perpetrators and they include strangers, acquaintances colleagues, family members, pastors, teachers, peers as well as service providers. Bearing in mind that, anyone can encounter SGBV-F within private and public settings such as at homes, schools, work places and service setting.
Issue one: AU-CEVAWG’s Legal Framework for Challenging Gender Inequality and Harmful Practices
The African Union Convention on Ending Violence Against Women and Girls (AU-CEVAWG) is a robust and progressive legal instrument designed to provide a comprehensive continental framework for addressing violence against women. Its domestication in Kingdom of Lesotho offers a critical opportunity to strengthen existing national laws and close legislative gaps, particularly those related to customary law and traditional practices.
Key Provisions and Their Comprehensive Scope:
AU-CEVAWG is distinguished by its holistic approach, covering prevention, protection, prosecution, and reparations for survivors. Its definitions are crucial:
Expanded Definition of Violence: Article 1 of AU-CEVAWG broadly defines violence against women and girls to include physical, sexual, psychological, and economic harm, explicitly covering acts perpetrated in both public and private spheres, including online spaces. This comprehensive definition is vital for Kingdom of Lesotho, as it broadens the scope of legally recognizable harm beyond overt physical acts, addressing subtle yet pervasive forms of control and abuse often associated with traditional patriarchal systems.
Explicit Inclusion of Femicide: The Convention’s explicit inclusion and definition of femicide (Article 1, and reinforced in Article 5) is a significant advancement. This directs State Parties to specifically legislate against and prosecute gender-related killings, providing a clear legal basis to combat the most extreme manifestation of GBV-F, which might otherwise be obscured under general homicide laws.
Addressing Harmful Practices and Discriminatory Laws: Crucially, AU-CEVAWG places a direct obligation on State Parties to eliminate harmful traditional practices (Article 10(f)) and to enact and enforce laws that fight all forms of violence against women and girls in the private and public spheres (Article 5(a)). This includes a clear mandate to address the root causes of violence, such as unequal power relations rooted in patriarchal systems (Preamble) and intersecting forms of discrimination (Article 7). For Kingdom of Lesotho, these provisions directly challenge customary laws and traditional practices that perpetuate gender inequality in areas like inheritance, marriage rights, and access to resources.
Prevention and Protection: Articles 10 and 11 outline detailed obligations for preventive measures (e.g., education, challenging social norms, engaging men and boys) and comprehensive support services for victims/survivors (e.g., emergency services, counselling, healthcare, legal aid). These provisions require Kingdom of Lesotho to move beyond reactive measures to proactive engagement with communities and the establishment of robust support systems.
Prosecution and Accountability: Articles 5 and 12 emphasize State Parties’ obligations to ensure that the criminal justice system provides effective forensic, case management, prosecutorial, and legal services to victims, holding perpetrators accountable. This is essential for addressing the impunity often associated with GBV-F, particularly when cases are handled informally or through traditional mechanisms that may not prioritise survivor safety or justice.
Reparations: Article 13 mandates State Parties to provide effective reparations to victims for damages suffered, which can include restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. This adds another layer of accountability and support for survivors.
The Role of the PAP Model Law on Gender Equality:
While AU-CEVAWG is the binding instrument, the PAP Model Law on Gender Equality serves as an invaluable guide for its domestication. The PAP Model Law aims to harmonize continental efforts by providing a template for national legislation. It aligns closely with AU-CEVAWG’s principles, offering detailed provisions that can inspire Kingdom of Lesotho’s legislative reforms to dismantle gender-discriminatory laws, including those stemming from customary practices, and to promote substantive gender equality. Its focus on areas like economic empowerment, political participation, and social protection provides a broader framework for addressing the systemic inequalities that underpin violence.
Strength of the Framework:
Once domesticated, AU-CEVAWG offers significant legal leverage. It provides a clear legal basis for:
Challenging discriminatory customary laws in courts, drawing on international human rights principles.
Pressuring the government to allocate resources and implement policies for prevention and response.
Empowering civil society organizations to advocate for legal reform and monitor state compliance.
Strengthening the position of women’s rights advocates within Kingdom of Lesotho’s legal and political landscape.
This robust framework, however, is merely a blueprint. Its true impact depends on how effectively Kingdom of Lesotho translates these legal obligations into tangible change, especially when confronted with deeply ingrained traditional norms.
Issue two: Challenges and Opportunities in Domestication and Implementation
The domestication and effective implementation of AU-CEVAWG in Kingdom of Lesotho, particularly concerning the eradication of gender inequality perpetuated by customary law and traditional practices, face significant challenges but also present notable opportunities.
Legislative challenges:
Identifying Conflicts: A primary challenge lies in meticulously identifying all existing national laws, both statutory and customary, that conflict with the provisions of AU-CEVAWG. This requires comprehensive legal audits and a nuanced understanding of how customary laws are applied in practice, not just in theory.
Drafting and Enactment: The process of drafting and enacting new legislation or amending existing ones to align with AU-CEVAWG is technically complex and politically sensitive. It requires skilled legal drafters and robust parliamentary processes.
Resistance to Reform: Legislative reforms that challenge long-standing customary practices can face strong resistance from traditional leaders, conservative political factions, and segments of society who view such changes as an erosion of cultural identity or an imposition of “Western” norms. This resistance can slow down or derail legislative processes.
Judicial and Enforcement Challenges:
Judicial Training and Bias: Judges, magistrates, prosecutors, and law enforcement officials require extensive training on AU-CEVAWG, gender-sensitive justice, and the complexities of legal pluralism. Without proper understanding and a commitment to human rights principles, existing biases within the formal justice system can undermine the Convention’s intent, particularly when adjudicating cases involving customary law.
Access to Justice: Even with new laws, women in rural or marginalized areas may still face practical barriers to accessing justice, including geographical distance to courts, lack of legal aid, illiteracy, fear of social stigma, and economic dependency.
Weak Enforcement Mechanisms: Inadequate resources for law enforcement, slow judicial processes, and a lack of political will can lead to low conviction rates and continued impunity for perpetrators of GBV-F.
Socio-Cultural Challenges:
Deeply Entrenched Norms: Patriarchal attitudes, gender stereotypes, and discriminatory social norms are deeply ingrained in many communities. These norms often dictate women’s roles, limit their agency, and can normalize violence, making it difficult for communities to accept legal changes that contradict these beliefs.
Influence of Traditional Authorities: Traditional leaders play a significant role in communities, often serving as primary arbitrators of disputes under customary law. If these leaders are not adequately engaged or are resistant to change, their influence can hinder the acceptance and implementation of AU-CEVAWG at the local level.
Lack of Awareness: Many citizens, especially women and girls, may be unaware of their rights under international and national laws, including AU-CEVAWG. This lack of awareness limits their ability to demand justice or challenge discriminatory practices.
Resource Constraints:
Financial and Human Resources: Effective implementation of AU-CEWAWG requires significant financial investment in establishing and maintaining support services (shelters, counselling, helplines), training personnel, and conducting widespread awareness campaigns. Kingdom of Lesotho, like many developing nations, faces resource limitations that can impede these efforts.
Opportunities for progress
- Existing Women’s Rights Movements: Kingdom of Lesotho has vibrant civil society organizations and women’s rights advocates who have been instrumental in pushing for legal reforms and raising awareness. Their continued advocacy is crucial
- Progressive Traditional Leaders: Some traditional leaders recognise the need for customary law to evolve in line with human rights. Engaging these progressive voices can create powerful champions for change from within communities.
- International Cooperation: Partnerships with international organizations and donor countries can provide technical assistance, financial support, and capacity building for domestication and implementation efforts.
- Constitutional Review Process: Kingdom of Lesotho periodically undergoes constitutional review. This presents a critical opportunity to explicitly address legal pluralism and ensure that customary law is subordinate to human rights principles enshrined in the Constitution and international instruments like AU-CEVAWG.
- Youth Engagement: Mobilizing the youth, who may be more open to progressive ideas, offers a pathway for long-term cultural and normative shifts.
- Leveraging these opportunities while strategically addressing the challenges is paramount to ensuring that AU-CEVAWG’s domestication translates into tangible change in Kingdom of Lesotho.
Issue three: Reconciling Legal Pluralism for Transformative Change
Achieving transformative gender justice in Kingdom of Lesotho requires more than merely legislating against harmful customary practices. It demands a nuanced approach to legal pluralism that seeks to reconcile customary law with human rights principles enshrined in AU-CEVAWG, fostering genuine shifts in societal norms rather than creating a disconnect between formal law and lived realities.
Beyond Mere Prohibition:
A Nuanced Approach: Simply prohibiting certain traditional practices or customary laws through statutory enactment, without addressing the underlying cultural beliefs and power dynamics, can lead to informal continuation of these practices, resistance, and a breakdown of trust in the formal legal system. A transformative approach recognizes that customary law is not static; it has always evolved and can continue to do so in a manner consistent with human rights.
Strategies for reconciliation:
Progressive Interpretation of Customary Law:
Judicial Activism: Courts in Kingdom of Lesotho can play a crucial role in interpreting customary law in a manner that aligns with the Constitution and international human rights instruments like AU-CEVAWG. This involves examining the spirit of customary law, its original beneficial intent, and its capacity to evolve to meet contemporary human rights standards, rather than rigidly adhering to outdated interpretations.
Codification and Restatement: Where appropriate, involving communities in the codification or restatement of customary laws can help clarify, formalize, and integrate human rights principles, ensuring that codified versions reflect progressive interpretations.
Engaging Traditional Leadership and Community Structures:
Dialogue and Collaboration: Establishing ongoing dialogue between government, legal professionals, civil society, and traditional leaders is paramount. This allows for mutual understanding, identification of acceptable pathways for reform, and fostering a sense of shared ownership in protecting women’s rights.
Capacity Building for Traditional Leaders: Equipping traditional leaders with knowledge of human rights, AU-CEVAWG, and gender-sensitive approaches can empower them to be agents of change within their communities, promoting positive norms and resolving disputes in a manner that upholds women’s rights.
Parallel Systems Reform: If traditional dispute resolution mechanisms continue to operate, efforts should be made to ensure they are gender-sensitive, protect women’s voices, adhere to fair process, and refer serious GBV-F cases to formal justice systems.
Community Sensitization and Education:
Mass Awareness Campaigns: Widespread, culturally appropriate public awareness campaigns are vital to inform communities about the provisions of AU-CEVAWG and its implications for gender equality. These campaigns should involve local languages, traditional media, and community-based theatre.
Engaging Men and Boys: Crucial for transformative change is the active engagement of men and boys in challenging patriarchal norms and advocating for gender equality. Programs promoting positive masculinities can contribute to shifting attitudes that perpetuate violence.
Education Reform: Integrating human rights, gender equality, and GBV prevention into school curricula from an early age can foster a new generation with more equitable perspectives.
Strengthening Legal Aid and Access to Justice:
Accessible Services: Expanding legal aid services, establishing one-stop centers for survivors (combining medical, psychological, and legal support), and improving police and judicial responsiveness are critical.
Survivor-Centred Approaches: Ensuring that all interactions with survivors, whether in formal courts or traditional settings, are respectful, empathetic, and prioritize their safety and well-being.
Intersectional Approach:
The domestication process must consider how gender inequality intersects with other forms of discrimination, such as disability, age, rural location, and socio-economic status. Policies and interventions must be tailored to address the unique vulnerabilities and needs of diverse groups of women and girls in Kingdom of Lesotho. For instance, rural women’s access to land and justice may require different strategies than those for urban women.
By strategically implementing these reconciliation strategies, Kingdom of Lesotho can work towards genuinely eradicating gender inequality perpetuated by customary law and traditional practices, moving towards a future where all women and girls enjoy their full human rights.
Discussion
The domestication of the AU-CEVAWG in Kingdom of Lesotho presents a pivotal, yet complex, opportunity to advance gender equality and eradicate the deeply entrenched gender inequalities often perpetuated by customary law and traditional practices. As this article has demonstrated, while the Convention provides a robust legal framework (Issue 1) that obliges Kingdom of Lesotho to eliminate all forms of violence and discrimination, its transformative impact is profoundly contingent on overcoming significant implementation challenges (Issue 2) and, crucially, on the strategic reconciliation of legal pluralism (Issue 3).
The AU-CEVAWG’s comprehensive definition of violence, explicit inclusion of femicide, and strong provisions for prevention, protection, prosecution, and reparations offer the necessary legal “teeth” to dismantle the structures that perpetuate gender inequality. However, the path to implementation is fraught with legislative hurdles, judicial capacity gaps, socio-cultural resistance, and resource constraints. The effectiveness of any new law will ultimately be tested in the lived realities of Basotho women and girls, particularly in rural areas where customary norms hold significant sway.
The core argument of this article is that true eradication of gender inequality – rather than merely its legal prohibition – demands a multi-pronged approach that moves beyond statutory reforms alone.
It necessitates: A Deliberate Confrontation of Legal Pluralism: Acknowledging the dynamism of customary law and actively pursuing its progressive interpretation by the judiciary and traditional leaders.
Holistic Engagement: Fostering genuine dialogue and collaboration between the state, civil society, and traditional authorities to build consensus and shared ownership of gender equality goals.
Sustained Community Sensitization: Investing in widespread and culturally appropriate education campaigns that challenge harmful norms and empower women and men to embrace equitable practices.
Strengthened Access to Justice: Ensuring that legal and support services are physically and culturally accessible to all survivors, regardless of their location or socio-economic status.
Comparatively, Kingdom of Lesotho’s situation mirrors that of many other African nations grappling with the integration of international human rights law into domestic legal systems characterized by legal pluralism. Success stories from other jurisdictions (e.g., in progressive interpretations of customary inheritance laws or community-led initiatives to abandon harmful practices) could offer valuable lessons for Kingdom of Lesotho.
A critical limitation of this analysis is the reliance on publicly available information regarding Kingdom of Lesotho’s specific progress on AU-CEVAWG domestication, which is an ongoing process. Future research could benefit from empirical studies on the ground, assessing the practical impact of new laws and interventions on the lives of women and girls, and documenting specific challenges and successes in engaging traditional leadership.
Ultimately, the prospects for AU-CEVAWG domestication in Kingdom of Lesotho to eradicate gender inequality perpetuated by customary law and traditional practices are not a given, but a complex, evolving reality. Success will hinge on a sustained commitment from all stakeholders to not only enact progressive laws but to foster a societal transformation that champions gender equality at every level.
Conclusion
The domestication of the African Union Convention on Ending Violence Against Women and Girls (AU-CEVAWG) in Kingdom of Lesotho undeniably provides a vital legal tool in the ongoing struggle for gender justice. This comprehensive instrument offers a robust framework to address and eliminate the pervasive gender inequalities and violence that have long been perpetuated by certain customary laws and traditional practices within the Kingdom. However, the complete eradication of gender inequality perpetuated by customary law and traditional practices will require far more than legislative enactment. It demands a sustained and multifaceted approach that embraces comprehensive legal reform, ensures robust judicial enforcement, demonstrates unwavering political will, and fosters deep community engagement to facilitate a fundamental shift in deeply entrenched patriarchal norms. While Kingdom of Lesotho faces significant challenges in navigating its dual legal system and overcoming socio-cultural resistance, the Convention offers a powerful impetus for change. By strategically engaging traditional leaders, investing in widespread sensitization, and empowering judicial bodies to interpret customary law progressively, Kingdom of Lesotho can move towards a future where its legal framework truly protects and promotes the rights of all women and girls, leaving no one behind due to traditional or customary norms. The journey towards transformative gender justice is long, but AU-CEVAWG lights a crucial path forward.
[1] Bradley, T. (2020). Global perspectives on violence against women and girls.
[2] Constitution of the Kingdom of Kingdom of Lesotho (1993).
