Authored By: MORAPELO LEBOHANG RAMOLEKO
Abstract
This article examines the position and limitations of international human rights treaties within Lesotho’s dual legal system, where customary law predominates. It addresses the issue of Lesotho’s courts treating ratified international human rights instruments as non-binding aids to domestic law interpretation, resulting in discriminatory outcomes, particularly in cases involving inheritance rights of illegitimate children. The main argument critiques Lesotho’s cultural relativism approach, which justifies limiting treaty application based on local customs, contrasting it with the universalist principles enshrined in key international instruments such as the UN Charter, the African Charter, and the Vienna Declaration. The article highlights that no major human rights treaty permits derogation on grounds of cultural traditions, emphasizing the universally applicable non-discrimination clauses. Ultimately, it concludes that Lesotho’s justification for limiting international human rights obligations is incompatible with international law norms, leading to unconstitutional discrimination that undermines the universal protection of human rights guaranteed by global treaties to which Lesotho is a party
Introduction
Howie, JA stated the position of the international human rights treaties in Lesotho’s legal system as follows:
(. . .) reliance was placed on Lesotho’s obligations in terms of various international instruments aimed at eliminating all forms of discrimination against women. These instruments, it is clear, are aids to interpretation, not the source of rights enforceable by Lesotho citizens. In the present matter there is no aspect of the process of interpreting s 10 of the Act which leaves its meaning exposed to any uncertainty, to the resolution of which the instruments in question could contribute further than the considerations which have already been taken into account.1
The human rights treaties position as stated by Howie, JA eight years back in 2014, still holds water within Lesotho’s legal system in the present times. As indicated above, these international legal instruments, although signed and ratified by Lesotho, are regarded as not binding, but merely as aids to interpretation with the view that these instruments ‘could contribute further’2‘uncertainty’3if considered in interpreting domestic law, which merely does away with Lesotho’s obligation as the guarantor4of human rights.
The issue is especially pressing, as the denial of treaty applicability based on cultural relativism undermines the universality of human rights protections enshrined in major instruments such as the UN Charter and the African Charter.
The overall responsibility of the State includes ensuring the due provision of benefits according to clear and transparent eligibility criteria and entitlements, and the proper administration of the institutions and services. This notion is envisaged in Article 2, sub-article 1 and 2 of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms respectively to say: Each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice. While Sub article 2 reads as follows: Each State shall adopt such legislative, administrative and other steps as may be necessary to ensure that the rights and freedoms referred to in the present Declaration are effectively guaranteed.
This article argues that Lesotho’s approach to limiting the application of international human rights treaties on cultural grounds is incompatible with international law and results in unconstitutional discrimination, thereby necessitating judicial and legislative reforms to uphold universally guaranteed human rights.
The current legal system can reasonably be inferred to be borne out from Customary Law, which forms part of Lesotho’s dual legal system, of which such ‘traditional norms and cultural (codified and living) practices have been moulded over centuries.’5 This dynamic presents significant challenges given the primacy of customary law within its dual legal system.
The codified Customary Law provisions, famously known as the Laws of Lerotholi6, gained recognition as law by then Basotho customary courts. The laws have thus transcended into legislative acts, firstly through the Constitution of Lesotho by way of sanctioning discrimination under section 18 (4) (c)7 when dealing with customary issues and lastly by other acts such as Chieftainship Act of 19688and the Children’s Protection and Welfare Act of 20119.
Cultural Relativism and Its Impact
(2) When an office of Chief becomes vacant, the firstborn or only son of the first or only marriage of the Chief succeeds to that office, and so, in descending order, that person succeeds to the office who is the first-born or only son of the first or only marriage of a person who, but for his death or incapacity, would have succeeded to that office in accordance with the provisions of this subsection.
(3) If when an office of Chief becomes vacant there is no person who succeeds under the preceding subsection, the first-born or only son of the marriage of the Chief that took place next in order of time succeeds to that office, and so, in descending order of the seniority of marriages according to the customary law, that person succeeds to the office who is the first-born or only son of the senior marriage of the Chief or of a person who, but for his death or incapacity, would have succeeded to that office in accordance with the provisions of this subsection.
The limitation in the application of the international human rights treaties and the sanctioned discriminatory provisions in Lesotho’s domestic laws has resulted in unfair and prejudicial treatment towards the segregated parties compared to that of their counterparts in many instances such as the Senate Gabasheane10 case and Thabo v Makopela11 case.
In the Senate12case, the appellant was the first born child of the first wife of the Principal Chief of Ha – ‘Mamathe, Thupa – Kubu and Jorotane. Her father was until his death the Principal Chief. He was succeeded by his widow, the appellant’s mother. Upon her death in December 2008 the office of Principal Chief fell vacant. In February 2009 a family meeting was held pursuant to which Lepoqo David Masupha, the then minor son and only issue of a subsequent marriage entered into by the appellant’s late father, was named as successor to the chieftainship and a regent was appointed pending his majority of which the appellant contested. The Court of Appeal however, upheld the constitutionalised exception to the freedom from discrimination on the part of section 10 of the Chieftainship Act 1968 and dismissed the appeal on the grounds that the discrimination was sanctioned by the law.
In the Thabo13 case, the estate of one Seporo was disputed by his illegitimate grandson and his next junior brother. Before his death Seporo had stated that he desired his grandson to inherit. It was however decided that his desire could not override custom, and that ‘children born out of wed-lock have no claim on estates’.14
In this regard, Lesotho can be said to have adopted the cultural relativism approach in the application of international human rights treaties by justifying the treaties’ limitations in as far as they are inconsistent with Basotho customs. As such, in the context of the debate about the viability of international human rights, cultural relativism may be defined as the position according to which local cultural traditions (including religious, political, and legal practices) properly determine the existence and scope of civil and political rights enjoyed by individuals in a given society.15
Universalism versus Cultural Relativism in International Law
A central tenet of relativism is that no transboundary legal or moral standards exist against which human rights practices may be judged acceptable or unacceptable. Thus, relativists claim that substantive human rights standards vary among different cultures and necessarily reflect national idiosyncrasies.16 This view is evident whereby customary law provisions were excised into statutory provisions in the Senate case by Howie, JA as follows:
Having enacted section 1017, the legislature proceeded to excise the Laws of Lerotholi (in the respect here relevant) from the body of national law. The explanation for the excision was simply that the material provision of customary law was now a statutory provision and the excised codification, as a written statement of the customary law, had no longer any reason for independent existence. There would have been no sensible purpose in the revocation of the declaration unless its essence, which was clearly intended to remain part of the Law of Lesotho, had already been securely retained.18
What may be regarded as a human rights violation in one society may properly be considered lawful in another, and Western ideas of human rights should not be imposed upon Third World societies. Tolerance and respect for self-determination preclude cross-cultural normative judgments.
Alternatively, the relativist thesis holds that even if, as a matter of customary or conventional international law, a body of substantive human rights norms exists, its meaning varies substantially from culture to culture.19 Lastly, supporters of cultural relativism argue that the theory creates a legal defence to the general duty incumbent upon governments to observe international human rights.20
Consequent to the cultural relativism approach, one should therefore expect to find a provision to that effect in the international legal materials. Yet, virtually nothing in the human rights conventions suggests that the respect for human rights depends upon, or can be modified by, local cultural conditions. The United Nations Covenant, the American Convention, and the recent African Charter do not acknowledge any right of governments to avoid compliance by alleging the priority of local traditions.21
Also assessing the validity of the relativist doctrine, it is noteworthy that each of the major human rights conventions contains a non-discrimination clause. The classical interpretation of such clauses22 holds that a government may not discriminate within its own borders on the basis of race, sex, religion or other impermissible criteria in the enforcement of human rights.23
The non-discrimination clause arguably forbids governments to treat individuals in ways that substantially depart from the core of meaning of international human rights law, because such treatment would amount to discrimination vis-A-vis the treatment enjoyed by individuals in other states.24
In other words, one could argue that an individual’s entitlement to human rights does not depend on the particular traditions of the state in which the individual is located, that national boundaries do not affect the imperative of non-discrimination.
The thrust of article 1(3) of the United Nations Charter is no different. It states that a major purpose of the organization is to achieve international cooperation in encouraging and promoting ‘respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language and religion.’ To
This argument therefore realises the universality approach that ‘the universal nature of these rights and freedoms is beyond question’ as enshrined in the Vienna Declaration and Programme of Action.26 The Vienna Declaration thus reiterates what the 1948 Universal Declaration of Human Rights proclaimed: that human rights are universal and belong to each individual, that is to say, as long as human rights do not fall below the universal norm, many diverse means of implementing these universal human rights can provide adequate protection for the individual rights holder.27
The development of international human rights law (IHRL) in the post-World War II era has been premised on the notion that human rights—that is, those claims of individuals for basic entitlements and freedoms accruing to them by virtue of their membership in the human family—are universal in nature.
This normative assumption finds expression in numerous provisions, found in major international legal instruments dealing with human rights issues, including the 1945 UN Charter,28 the 1948 Universal Declaration of Human Rights29 and in the corpus of IHRL treaties concluded from 194830 onwards.
All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
Recent Developments
Lesotho’s legal framework for the administration of deceased’s’ estates and inheritance has undergone a transformative overhaul with the enactment of the Administration of Estates and Inheritance Act, 2024 (“the Act”). This new Act which was operationalized on 2 April 2024, introduces significant reforms to the management and distribution of deceased estates; introducing a modernized approach to the administration of estates and addressing the limitations and prejudices previously imposed by customary law practices, ensuring a more inclusive approach to inheritance rights.31
The 2024 Act advocates for equal inheritance rights for children regardless of whether or not they are born out of wedlock and regardless of whether their parents were married by customary law or not. It aims to address historical inequalities and promote fairness in inheritance. In terms of this Act, all children of gender can inherit from their parents thereby abolishing the long surviving discriminatory practise.32
The new enactment however caused an uproar by some principal chiefs who did not support the clause, claiming that it would destroy families while some politicians said the clause should have been amended to retain some protection for children born out of wedlock instead of being totally deleted.33
Human rights defenders, were, on the other hand adamant that scrapping the clause was a very bad decision as it discriminates against children on account of their status of birth.34
Conclusion
United Nations to promote universal respect for, and observance of, human rights and freedoms . . .”).
In conclusion, Lesotho’s justification for the limitation on the application of the international human rights treaties must fall away as it is inconsistent with the provisions of major international instruments including the African Charter of which as a result, such limitations affords the prejudiced parties a lesser value than their counterparts and inevitably attracts discrimination, segregation and exclusion from certain matters than must involve them.
Therefore, in my opinion, Lesotho should follow the universalism approach in the spirit of curbing discrimination by domesticating the treaties as they are as indicated by Howie, JA that ‘Modernising the rule is a matter for Parliament to consider, especially in the light of the issue raised by the appellant.’35 Modernising the rule will create a balance in equity for every member of the state and most importantly end the generalization of the state’s ‘custom’ to include diversity of cultural practices for every individual and groups of people for the recognition of such practices and the respect thereof.
Bibliography
Books
Patrick Duncan, Sotho Laws and Customs (first edition 1960, With a Foreword by W.C.M. Maqutu reprint in 2006, MORIJA MUSEUM & ARCHIVES 2006)
Journals
The Kingdom of Lesotho Introductory Statement During the Presentation of the initial, Second, Third and Fourth Combined Report on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to the 50th Session of the United Nations Committee on CEDAW, 11 OCTOBER 2011.
Fernando R. Tesón, ‘International Human Rights and Cultural Relativism’ (1985) 25 VA. J. INT’L L. 869, 870 – 871.
Yuval Shany, ‘The Universality of Human Rights: Pragmatism Meets Idealism’, Jacob Blaustein Institute for the Advancement of Human Rights (2018)
Case Laws
Senate Gabasheane Masupha v Senior Resident Magistrate for the Subordinate Court and others [2013] C OF A. (CIV) 29, [22]
Thabo v Makopela J.C. 369/47
Laws of Lerotholi 1903
1993 Constitution of Lesotho
Chieftainship Act of 1968
Children’s Protection and Welfare Act of 2011
U.N. Charter
Universal Declaration of Human Rights 1948
International Covenant on Civil and Political Rights 1966
Official websites
Moerane M. & Rafoneke R., ‘The New Administration of Estates and Inheritance Act No. 2 of 2024: Key Changes and Implications’ (Webber Newdigate Attorneys, 4 Sept 2024) https://webbernew.com/a79/general-articles/the-new administration-of-estates-and-inheritance-act-no.2-of-2024:-key-changes-and implications.html
News reports
Manthatisi Sebusi, ‘Uproar Over Inheritance Act’ Lesotho Times (Maseru, 4 April 2024)
1 Senate Gabasheane Masupha v Senior Resident Magistrate for the Subordinate Court and others [2013] C OF A. (CIV) 29, [22] (Howie, JA) (emphasis added).
2Ibid.
3Ibid.
4 States have the legal obligation to protect and promote human rights, including the right to social security, and ensure that people can realize their rights without discrimination.
5 The Kingdom of Lesotho Introductory Statement During the Presentation of the initial, Second, Third and Fourth Combined Report on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to the 50th Session of the United Nations Committee on CEDAW, 11 OCTOBER 2011.
6 Promulgated in 1903 under instruction of the Paramount Chief (now called King) through the Basutoland National Council.
7 1993 Constitution of Lesotho.
8 Section 10 (2) and (3):
9 Section 19: ‘A child has a right to the property of his parents but where the child is born out of wed-lock, the child has a right to the property of his biological mother irrespective of the mother’s marital status.’
10 Senate (n 1).
11 J.C. 369/47
12 Senate (n 1).
13 Ibid.
14 Patrick Duncan, Sotho Laws and Customs (first edition 1960, With a Foreword by W.C.M. Maqutu reprint in 2006, MORIJA MUSEUM & ARCHIVES 2006) 11 – 12.
15 Fernando R. Tesón, ‘International Human Rights and Cultural Relativism’ (1985) 25 VA. J. INT’L L. 869, 870 – 871.
16 Ibid.
17 Section 10 (n 8).
18 Senate (n 1) [13].
19 Fernando (n 15).
20 Ibid.
21 Fernando (n 15) 878.
22 The clause is commonly regarded as operating purely within national borders, but a broader interpretation is also possible.
23 Fernando (n 15) 878.
24 Ibid.
25 Ibid, 879.
26 Paragraph 5 states that:
27 Yuval Shany, ‘The Universality of Human Rights: Pragmatism Meets Idealism’, Jacob Blaustein Institute for the Advancement of Human Rights (2018) v.
28 U.N. Charter preamble (“[T]o reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small . . .”).
29 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/ RES/217(III) (Dec. 10, 1948.) [hereinafter UDHR] (“[A] common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society . . . shall strive . . . to secure their universal and effective recognition and observance . . .”).
30 International Covenant on Civil and Political Rights preamble, adopted Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR] (“Considering the obligation of States under the Charter of the interpret the clause ‘for all’ to mean for all individuals on earth, and not just for all individuals within a given state, surely violates neither the letter nor the spirit of the Charter.25
31 Moerane M. & Rafoneke R., ‘The New Administration of Estates and Inheritance Act No. 2 of 2024: Key Changes and Implications’ (Webber Newdigate Attorneys, 4 Sept 2024) https://webbernew.com/a79/general-articles/the-new-administration-of-estates-and inheritance-act-no.2-of-2024:-key-changes-and-implications.html accessed 10 August 2025
32 Ibid.
33 Manthatisi Sebusi, ‘Uproar Over Inheritance Act’ Lesotho Times (Maseru, 4 April 2024) 4
34 Ibid.
35 Senate (n 1) [32].
