‘This is no country for women’

‘This is no country for women’

MASERU – The lesson ’Makhomo Ramatlapeng must surely have learnt after two years of dueling against and losing to her brother in the courts, she ought to have known from day one — when it comes to land in Lesotho, it’s a man’s world.
When in 2014 Ramatlapeng’s brother, Mohapi Jessie, tried to kick her out of their parents’ home she headed straight to the High Court, filing an urgent application asking the court to prohibit her brother from denying her access to the property or to stay there.

Although younger than his sister, Jessie is the eldest son of their family and upon their mother’s death in 2010 – the father had died seven years earlier — he inherited the family home as dictated by Lesotho’s patriarchal customary law that holds sway when it comes to inheritance of property and land tenure in general.
As anyone familiar with these matters would have guessed, the High Court in May of the same year upheld Jessie’s absolute right to the parental home, dismissing his sister’s bid to claim any right to the property.

But Ramatlapeng — who is married and had moved in with his brother’s family at their parents’ old house because she had left her matrimonial home following differences with her husband — was not going to take it lying down.
She escalated the matter to the Court of Appeal, asking it to overturn the High Court ruling.
But in October 2016 ruling that effectively ended Ramatlapeng’s fruitless struggle, the court upheld the High Court ruling and quoting from Justice Mathanzima Maqutu’s 2005 book, Contemporary Family Law: The Lesotho Position, had this to say:
“The firstborn son of the first ‘house’ is the universal heir and head of the family and all unallocated property vested in him.”

You could call the ruling a resounding victory for patriarchy. But by declaring the supremacy of male rights in matters involving land and property ownership, the appeal court was not breaking any new legal ground.

According to a report released by Habitat for Humanity Lesotho (HHL) a fortnight ago, the right for women to access land in Lesotho remains so severely marginalised thanks to what has proven to be a change-resistant patriarchal customary law that dictates that property and title are inherited by the male lineage.
The report titled, Women’s Access to Land and Housing in Lesotho, acknowledges the various legal changes and reforms as well as administrative tools adopted and put in place in recent years to try to open up more space for women to access land more easily.

But it says these have had limited success chiefly because of an entrenched customary law that continues to exist side by side with the new laws. In fact, the traditional law holds primacy over the new legislation when it comes to adjudicating issues and disputes to do with deceased estates.
For example, the report points out how the customary system of allocating land was abolished by the Land Act of 2010 which empowered local authorities to allocate land in their area of jurisdiction in consultation with chiefs.

But that new arrangement is a patently ineffective in addressing the issue of women accessing land given the fact that the chiefs that must be consulted are the custodians of customary law in communities whose job is to defend and uphold it.

Another inconsistency pointed out by the researchers is how Section 18 of the country’s constitution explicitly prohibits discrimination which, of course, means women should not be discriminated against when it comes to land ownership.
But what the same constitution grants by the right hand it promptly takes away by the left when through Sub-Section 4 it ring-fences customary law to leave it just as effective as before and women as disadvantaged as they were ever always.

“Section 18 of the constitution of Lesotho prohibits discrimination. However, Sub-Section 4 provides that Section 18 shall not apply to customary law (which is the law on marriage, divorce, burial, succession), thus perpetuating the minority status of women under customary law” the report reads in part.

It further noted how the constitution accords equal rights to men and women, while there is legislation that grants widows the right to retain land upon the demise of the husband, but all these were undermined by customary law.
“The inconsistency between the constitution and the customary law in prescribing a widow’s status on land inheritance undermines women’s capacity to inherit land and housing in Lesotho,” the report said.

Compounding the situation is the fact that customary law — the primary means by which the subordination of women has been institutionalised in Lesotho – applies to most of the land in Lesotho, where it is traditionally administered by chiefs on behalf of the King.
In addition, the report said that while patriarchy is more dominant in rural areas than in towns, the fact that it is reproduced in male-dominated decision-making institutions means there is really no sphere of society that is immune to the clearly biased system.

It is a situation that land use planning expert Dr Resetselemang Leduka said calls for Basotho to start asking the difficult questions about their culture and customary law. He said it was time to ask how customary law could be reformed and developed to make it more consistent with the constitution and the requirements and needs of today’s society.
“Whose customs are these that are governing us. Do they still answer to today’s needs?” asked Leduka, who is a lecturer at the National University of Lesotho and sits on the board of HHL. He added: “We need to define customs and culture and have them answer to today’s needs.”

The director of HHL, Mathabo Makuta, said it was in the interests of the country to empower women by granting them better access to land, adding that unlike in yesteryears many women of today were breadwinners of their families.
She called on all players to put their heads together to come up with a mechanism to drive women access to land.

Adv. Staford Sharite, the deputy chairperson of HHL, who is also assistant registrar at the High Court, said while patriarchy was largley to blame for women’s failure to access land it would be simplistic to put the blame solely on men.
There were many women also at the forefront of depriving widows of their right to inherit land. “We have a lot of cases where female in-laws are hustling a woman out of land and housing of their late husband,” Sharite said.

Sharite called for the establishment of a land dispute resolution authority to handle land rights and land ownership disputes in a fair and equitable manner.
And one case that illustrates well the need for an overhaul of the current land tenure system as advocated by the HHL team is that of Ramatlapeng’s.

Here was a woman whose marriage was on the rocks and because of it had fled her husband’s home to go live in rented accommodation that was so poor her brother asked her and her young child to come live with him at his house. His house was their parents’ old home where they grew up and which he had inherited.
When relations soured between the two, the brother decided to kick the sister out, a decision the courts declared legal because under the law he had no obligation to share the property with her because she was not a man.

The High Court, in a finding that was upheld by the Court of Appeal, said the brother was obliged to share their parents’ home only with his male siblings. It further said that as a married woman, Ramatlapeng had her own matrimonial home to live in.
One can only wonder whether as they handed down the ruling, the judges did not privately wish the law was such that they could give more prudent advice to a desperate woman than telling her to leave her ‘parents’ house’ to go back to her troubled matrimonial home.

Rose Moremoholo


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