PARLIAMENT OF LESOTHO
THE LAWS OF LEROTHOLI (AMENDMENT) BILL, 2022
STATEMENT OF OBJECTS AND REASONS
(Circulated by the Authority of the Minister responsible for gender, youth, sports and recreation Hon. Likclcli Tampane)
The Laws of Lerotholi, which were promulgated in 1903, is the main source of customary law. It contains provisions that relate to matters of successions to the chieftainship, land allocation, and inheritance. Succession is decreed by birth in accordance with age-old customary practice. Chieftainship devolves through the male lineage. Disputes over inheritance, chiefly succession, seduction and marriage, as well as burial are all matters that seem to fall within the regime of customary law and, by extension, the Laws of Lerotholi. However, the gap between the applicable law and the prevailing customary practices seems to be widening. It seems that the Laws of Lerotholi have been outpaced by the changes in the Basotho social life. It was also realized that court of law give different interpretations on issues of choice of law as well as choice of forum.
Inspired by the demands for equality for all people and claims based on human rights, the Ministry of Gender and Youth, Sports and Recreation advocated for the enactment of Legal Capacity of Married Persons Act, 2006 which abolishes marital power. The enactment of this Act necessitated that all discriminatory laws be amended or repealed with the aim to improve the legal status of women in Lesotho. Laws of Lerotholi are a perfect example of codified rules that have lost their practicability in many aspects and fall short of meeting the positive legal aspirations of the current society. The current legislation has provisions that give only male subjects the right to inherit and treat widows as minors after the death of their husbands as they are left in the mercy of their sons or deceased brothers to administer their property. Failure to allow the widow to be heir over the property she accumulated over the years with her husband affects the economic power of the said family adversely.
This Amendment Bill seeks to remove all legal restrictions imposed on women with regard to the full exercise of their economic rights in harmonisation with Legal Capacity of Married Persons Act. The Bill proposes that a widow, in her own right, be able to administer her property without consent or in consultation with the first male born child or the deceased brothers or any other male subject in the family. It will also allow a widow to inherit all unallocated propefty upon death of her husband and allow her to dispose the same as she wishes, but in line with the best interest of the children in that house, without consulting the in-laws.
LAWS OF LEROTHOLI (AMENDMENT) BILL, 2022
A BILL for
An Act to amend the Laws of Lerotholi, 1907 to make provision for the enhancement of the economic status of women to enable them to fully exercise their economic and property rights under Customary Law in line with the provisions of the Legal Capacity of Married Persons Act, 2006 1 .
Enacted by the Parliament of Lesotho.
Short title and commencement
- This Act shall be cited as the Laws of Lerotholi (Amendment) Act, 2022 and shall come into operation on the date of publication in the Gazette.
- The Laws of Lerotholi (in this Act referred to as the “Principal law”) is amended in section 1 1 (2) of Part I by deleting the following words, “but according to custom she is expected to consult the relatives of her deceased husband who are her proper advisors”.
- The Principal law is amended in section 12(2) of Part I by deleting the
‘guardian, administrator or widow” and substituting the words “guardian or administrator”.
- The Principal law is amended by deleting section 13(2).
Allocation of property during lifetime
- (1) Section 14 (2) of the Principal law is deleted and substituted as follows-
“14 (2) The widow shall –
- have ownership and control of the property of the joint estate after the death of her husband; and
- take into consideration the rights and welfare of the minor children of the estate and upon her death, the rightful heir shall inherit the estate; however, the heir shall-
use the property of the estate to fulfill his responsibility for the welfare of all dependants of the estate; and
(ii) share the use of such property with his junior brothers and sisters.”.
- The Principal law is amended in section 14 of Part I by deleting subsection (3) and renumber sequentially.
- The Principal law is amended in section 14 by adding the following subsections after subsection 4:
“(5) Where a surviving spouse in the exercise of control and ownership over the property of the joint estate, abuses such powers, the family may intervene.
(6) Where a surviving spouse remarries, the property of the joint estate from the previous marriage shall not forin part of the community of property of the subsequent marriage.”.