When the law is tyrannical

When the law is tyrannical

In 10 May 1995, when 104 miners died in a tragic accident at the Vaal Reefs Gold Mine in South Africa. Lesotho was hard hit by this accident as some of the miners that died were her residents. All were in shock and cried for the families of the deceased. Unbeknownst to some, there was one woman who suffered a double tragedy.
A report by a local newspaper indicated that one widow, whose husband died in that accident was sent packing by her husband’s family immediately after the funeral. The woman reported that her spouse’s family expelled her because she was not a married woman but a friend of their son.
Her children, they claimed, were illegitimate and not entitled to inherit anything from their father. Reading this story made me very sad as a woman and I was appalled by the cruelty that people can have.

I am narrating this sad story because on Thursday, 24 May 2018, there was a conference organised by several NGOs that deal with gender based violence and human rights at Lehakoe themed: Is domestic Violence real in Lesotho? A case of inheritance.

At this conference, I was taken back to the sad story of the Vaal Reefs woman and her victimisation as several conference participants narrated stories similar to hers. My heart sank when some of the people were told that their complaints were in fact not justified as there is no law that has been broken.
There were women who claimed their uncles or their male cousins had illegally taken their inheritance, only to be told that the actions of those relatives, which from the perspective of the victims are tantamount to violence in some instances, were justified and supported by the Law of Lerotholi which was promulgated in 1903.

According to the Law of Lerotholi, Section 11(1) to (2), titled the heir (1) In Lesotho, the heir will be the first born male of the first wife. In the case where the first wife does not have a son, the first son of the second wife will then be the heir. (2) If there is no son from any of the households (in a polygamy), the first widow will be the heir, but according to tradition, she has to involve the siblings of her late husband as they are her rightful counsel.

In the case of inheritance, the Law of Lerotholi disregards and blatantly discriminates against the female children. Children are supposed to be equal irrespective of their gender and they should all be accorded the same rights, especially when it comes to getting a share of their parents’ inheritance.
The Constitution of Lesotho in Sections 18 and 26 guarantees the protection of human rights including protection from discrimination and equality before the law.

However, Section 18 (c) allows for discrimination on the basis of the application of customary law where applicable. In essence, even though the constitution is against discrimination, it also allows people to be discriminated on the basis of the Law of Lerotholi.
That is a woman whose parents were married in a customary law, cannot be an heir to the estate of her parents even if she is their only child.

In addition, when it comes to the issue of marriage, the Law of Lerotholi outlines the conditions that should be met in order for that marriage to be legally recognised. In the case of the story I started with, the woman mentioned in the newspaper interview that her husband had not paid any bohali (bride price) for her.
This means her husband’s family, cruel as the story sounds, were within their rights to send her back home as she was indeed not their daughter-in-law. Because the woman was not married, it meant her children were illegitimate and could also not get any inheritance from the estate of their late father.

The gloomy part is that during the life of her husband, their son, the woman’s in-laws never questioned the legality of her marriage. They never questioned the legitimacy of their son’s children. They only remembered that the woman was not their daughter-in-law when they wanted to side-line her and the children from getting a share of their inheritance.
It is only then that they remembered that the Law of Lerotholi could come to their aid and help them to get rid of the woman and her children in favour of them getting a bigger share of the inheritance left by their deceased son.

These sad stories call for action from those with authority to do so. Time is ripe for the Ministry of Gender and Youth, Sports and Recreation (MGYSR) to advocate for the amendment or repeal of the Law of Lerotholi as it is an old fashioned law that has sections that are discriminatory to girls, women.
The NGOs that deal with gender-based violence should also assist the MGYSR by educating the public on property dispossession, laws governing inheritance and the proper means for parents to share their inheritance by writing their last words and by writing wills. I am aware the NGOs have already started educating the public and I urge them to spread the message even to the remotest of areas in Lesotho.

I am excited that the Lesotho parliament now has a women caucus, I believe in those honourable women and their ability to bring positive change to the lives of Basotho. I am certain they will not disappoint us. Rather they will follow the old adage which says mangoana o tšoara thipa ka bohaleng (the mother of the child holds the sharpest end of the knife). We hope that this caucus will strive to ensure that women and children are protected from the violence that arises from the fight over inheritance.

By: Kelello Rakolobe

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