THE European Union (EU) has awarded a combined M15 million to three civil society organisations to implement projects meant to foster the development of human rights issues in the country. Lesotho Council of Non-Governmental Organisations (LCN), Transformation Resource Centre (TRC) and Women and Law in Southern Africa (WLSA) are set to implement the projects over the course of two to three years.
In this wide ranging interview, WLSA National Director Advocate Libakiso Matlho speaks with Lesotho Times (LT) reporter Lekhetho Ntsukunyane about her organisation, its mandate and details of the project funded by the EU.
LT: How was WLSA established, and what is its mandate?
Matlho: WLSA is a regional network which was established in 1989 by female lawyers and other social scientists in seven countries where it is operating, namely Malawi, Botswana, Lesotho, Mozambique, Swaziland, Zimbabwe and Zambia. The idea behind establishing WLSA was to review and reform the legal frameworks in our countries. It was also meant to address gaps and challenges we were going through at the time. Most of our countries are Roman Dutch law nations, with issues of patriarchy and male dominance at the fore of our legal frameworks. So the idea was to suggest reforms that would assist our governments in coming up with laws that are gender responsive and recognise the human rights of all subjects in the country, including women and girls.
Another important aspect was that, through these discriminatory laws, women became victims of violence in high numbers. They became economically-dependent on men. They were also oppressed in terms of political participation. So, our approach was to use the socio, legal and political economic spheres to assess the gaps and suggest reforms. We use what we call active research. The idea of active research is to have one common topic in the seven countries. For example, our first publication was around inheritance loss where we were looking at the law that governs inheritance, be it under civil law or under customary law. We wanted to see which provisions actually provided discriminatory clauses. For example, in the Lesotho context, you find that women don’t have the right to inherit under customary law, while under civil law you find that, even though there is a provision to write a will for anybody who is above 21 years, unfortunately not many people write wills.
There are exceptions in terms of who can write a will and who cannot. For example, in our context you find that for one to be able to write a will, whether man or woman, they also have to understand their mode of life. It is either the European way of life or customary way of life? If you are married, are you married under the civil or customary law? If you fail that test, it means you are not eligible to write a will.
The idea of coming with one topic at the regional level was meant to compare the good and the bad in each legal system. Therefore, we had the eighth publication which is a comparative analysis that shows what is happening in each of the seven countries. We use this publication as an advocacy tool for processes of reform. The publications provide evidence we found on the ground. We then use that as a strong tool to encourage our governments to review these laws. As a result, most of our legal systems have evolved positively since then. We do have a lot of reforms. For example, in Lesotho we have the Sexual Offenses Act of 2003, which is very much gender sensitive. Before 2003, sexual offences could only be committed by a male person. The mandatory principle was that there should be a penetration of a male organ into the female organ. Any other form of sexual violence would form what is called indecent assault and the penalty was very minimal. However, the Sexual Offences Act now includes unwanted touching, words or using objects. We have a lot of sexual offences that involve objects, including anal sex, in Lesotho. We now know that anything that does not have consent is a sexual offence. Again, it could be committed by both males and females. Victims are now protected by the law.
LT: Are there any other laws you have initiated?
Matlho: We also have the Legal Capacity of Married Persons Act of 2006. This law tried to do away with what we used to call the marital power of a man. This was a Roman Dutch principle under which any man who is married would have all the power over his wife, whether in person or in property. That is why, before 2006, a woman could not be a director of any company if the husband doesn’t provide consent. A woman couldn’t sue or be sued even in acts that were committed by her. She couldn’t consent to any surgical operation if the husband didn’t give consent. She couldn’t sign any formal document as long as the husband hadn’t issued his consent. Yet, the husband had absolute power to dispose of marital property or whatever without even consulting the wife. So that is what was called the principle of marital power and minority status of a woman under the marriage. That has been removed as of 2006. Married people, man and woman, must now consult equally in all affairs that are related to their union. As a result, we see a lot of equality. However, because of the practice, culture and customs of Basotho, women are still in the minority. Most of their rights are still not being observed. Tradition takes time to change from where it is. The fact that some women agree to be oppressed to some extent doesn’t mean oppression is okay. It is not. We need to change the mind-set of everybody.
LT: The EU has funded three projects, and one of them is being implemented by WLSA. Tell us about this project.
Matlho: The project started in January 2016 and will continue until December 2018. It is a three-year project. Before 2016, we had been implementing a lot of projects meant to promote and raise awareness around legal provisions we have. Our preoccupation was with issues that were discriminatory against women. In some instances, it would be to disseminate newly-enacted laws so that people are aware of the current legislations. In 2011, Lesotho enacted the Anti-Trafficking in Persons Act. As WLSA, we had been at the forefront in terms of advocacy and lobbying our government to come up with a law of that nature. Even during the drafting stage, we were part of the stakeholders. However, after it was enacted, we realized the need for everybody to be aware of this law. So what we did, with the EU’s support, was undertake a research project called “Seeing the Gold but not the Trap”. During the research phase, which was a three-year period, we went around all the 10 districts of Lesotho on awareness campaigns about human trafficking. Through that process, we noted a lot of new trends that were discriminatory as well. For example, we noted that most victims in human trafficking were women. Lesotho was a country of origin while South Africa was the destination country.
We also noted a new trend of young women getting married to older men, either because there are no jobs or because their parents had passed on as a result of HIV/AIDS. In order for them to survive, the young women got married to older men. We noted again the reason why there were so many cases of early marriages in Lesotho was our customary law itself has a lot of loopholes in terms of protecting the girl child. It does not prescribe the minimum age upon which any person, man or woman, can get married. Unfortunately for females, they can elope or get married from 12 years onwards. Once customary law requirements have been met, there is no case despite the fact that the Sexual Offences Act says that anyone who has sexual intercourse with a person below 18 years commits an offence. If sexual intercourse happens as a result of marriage it’s not an offence. And who are they getting married to these girls – mostly older men who had been sexually-active and are HIV positive.
We also noted that we have other groups in our society, lesbians, gays, bisexuals, transgender women and men, as well as intersex (LGBTI) persons. These are members of society who exist. We are aware that Lesotho doesn’t have any law that protects them. But by virtue of their existence, we thought there was a need to protect these vulnerable groups in terms of HIV infection. We then formed a partnership with the Community of Women Living with HIV/AIDS and another organisation called Matrix People. That’s why now our project is called Real Talk Real Action – to ensure all these groups are recognised. We also have the Children Protection and Welfare Act which says no person shall marry at any stage below 18 years. But it has not repealed neither the customary law nor the Marriage Act of 1974 which says a girl can be married at the age of 16 with the consent of parents. The best thing that Lesotho can do now is to review the customary law to allow both boys and girls to inherit under the same grounds.
LT: How serious are the challenges facing the LGBTI community in Lesotho?
Matlho: There was a study that was commissioned by Matrix. It has shown that issues of accessing health services were a challenge because of stigma and discrimination. Because these people are being stigmatised and discriminated against, they are not able to disclose their gender identity. Therefore, some of them are forced to marry people of the opposite sex in order to satisfy family expectations. Already, their human rights are violated.
LT: Are you advocating for the enactment of a same-sex marriage law?
Matlho: We are not at the stage of advocating for a same-sex marriage law. What we are lobbying for is to have a comprehensive law that protects and upholds the rights of LGBTI people. We are also advocating for the HIV/AIDS law which protects the rights of everybody, including LGBTI persons. We are also advocating for the domestic violence law.
LT: We know the EU handed over a combined M15 million for the three projects. How much is your share for the project, and how do you plan to utilize the money?
Matlho: Because the money is in euros, I can just estimate our share to be between M4 million to M4.5 million. In the first year of the programme, we are already undertaking research, which we want to publish in December 2016. We are looking into the rights of LGBTI people in Lesotho and suggesting potential responsive legal frameworks. The second part of our research is looking into issues of inheritance in general. We are looking into young girls getting married early. We want to come up with statistics in terms of the extent of the problem as well as the general attitude so we come up with a comprehensive legislation governing marriage issues in Lesotho.
Also, how does HIV/AIDS play a role, because it is a phenomenon cutting across all these sectors? In the next two years, 2017 and 2018, we will be doing advocacy work where we will be lobbying our parliamentarians as well as our community leaders. We want to achieve a situation whereby, after these three years, we have laws that address the rights of these people.