Masupha v. Senior Resident Magistrate for the Subordinate Court of Berea

The petitioner, Senate Masupha, is the firstborn, female child of a late principal Chief. Because there were no firstborn males in his immediate family, upon his death, the late Chief’s wife and the petitioner’s mother was appointed as a caretaker Chief in accordance with the Chieftainship Act. Following the death of the late Chief’s wife in 2008, the late Chief’s younger brother instituted a claim for inheritance of the chieftainship before a magistrate’s court, which was challenged by the late Chief’s son from a second wife, as well as that son’s mother. The petitioner, who had not been included in the proceedings before the lower court, subsequently intervened to request a change of venue to the Constitutional Court, so that she could challenge the constitutionality of the provision in the Chieftainship Act under which she was precluded from seeking to succeed to the chieftainship, as she was the first-born child. Masupha argued that the Chieftainship Act does not necessarily preclude her from inheriting the chieftainship and that, even if the Chieftainship Act in fact precludes her from doing so, it should be struck down, because it violates multiple provisions of the Constitution. The High Court highlighted the fact that, in acceding to CEDAW, Lesotho specifically excluded itself from the provisions of that Convention in so far as it concerns the customary practices relating to succession to the throne and to chieftainship. It therefore dismissed Masupha’s petition seeking to declare the Chieftainship Act provision preventing female offspring from inhering chieftainships discriminatory and therefore unconstitutional, finding that the Chieftainship Act was not discriminatory, because it allows the senior wife to inherit the title as a caretaker, if there are no living first-born males from any of the deceased’s marriages. The High Court concluded that, when a wife succeeds her husband as a caretaker, the right to inherit reverts back to the male line of the family upon the death of the female chief. The judgment was appealed to the highest court in the country, the Court of Appeal, which affirmed the High Court’s decision and upheld the customary law effectively denying women the ability to succeed to chieftainship.