Bongiwe Zihlangu
The National Assembly has approved a new law aimed at economically empowering women married under customary law.
Styled the Laws of Lerotholi (Amendment) Bill, 2022, the new law was approved on Tuesday. It has now been referred to the Senate, for further deliberations and if approved, the Bill will then be taken to the King for royal assent before it becomes law.
Lesotho has been racing against time to pass this legislation, as part of pre-conditions for the country to sign the second Millennium Challenge Corporation (MCC)’s US$300 million development compact.
This is according to a report by the 18-member parliamentary Social Cluster Portfolio Committee.
The Bill proposes that a widow shall “have ownership and control of the property of the joint estate after the death of her husband”, doing away with the current situation wherein women are considered minors and accountable to their sons or late husband’s brothers. This has resulted in the erosion of women’s economic rights as they are deprived of the right to administer their estates and dispose of their properties as they wish.
The committee presented its report on the Bill to the National Assembly on Monday, describing it as a piece of legislation that not only Basotho but also the international community, were passionate about and observing closely because “it is meant to empower widows economically”.
This legislation as per the report, is a precondition to Lesotho accessing the eagerly awaited second MCC’s US$300 million development compact.
This is not the first time that the United States (US) has demanded that Lesotho amends its laws in order to access funds for a compact grant.
In 2010, the Lesotho government under the first MCC Compact introduced the Land Act, 2010 which gives women the right to buy, sell and own land unlike previously where only husbands and male offspring held title deeds to land.
The Lesotho Times has been reliably informed that the Bill was tabled mid-February and referred to the relevant portfolio committee, which in turn on 30 March 2022, engaged stakeholders for briefing sessions to scrutinise the draft. These included the Ministry of Local Government and Chieftainship, Master of the High Court, the Lesotho Council of Non-Governmental Organisations (LCN), and Women and Law in Southern Africa (WLSA)-Lesotho.
While the Bill proposes that widows be granted all powers over their late husbands’ estates, it is quick to caution that they shall “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”.
Despite the law seeking economic emancipation for widows, it also intends to limit their control of estates to prevent abuse or where a widow chooses to remarry.
“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. Where a surviving spouse remarries, the property of the joint estate from the previous marriage shall not form part of the community of property of the subsequent marriage,” the committee notes.
“After further scrutiny of the Bill, consideration of the Ministerial brief, analysis of the public opinions, the committee recommends that the Bill be passed as amended,” it adds.
According to the committee report, the Bill seeks to harmonise the Laws of Lerotholi with the Legal Capacity of Married Persons Act, 2006.
“The main purpose of the Bill is to amend certain provisions in the Laws of Lerotholi which were promulgated in 1903. The existing Principal Law has provisions that give only male subjects the right to inherit and treat widows as minors after the death of their husbands,” reads the parliamentary committee’s report.
“The Laws of Lerotholi further allow the deceased’s sons or brothers to manage his property, not his wife and as such, the economic power of the widow is adversely affected. The Bill therefore attempts to amends such provisions which discriminate married women under customary law.
“Besides, the Bill attempts to harmonise the Laws of Lerotholi with the Legal Capacity of Married Persons Act, 2006. It further proposes that a widow, in her own right, be able to administer her property without consent or consultation with her first-born son, the deceased’s brothers or any other male subject in the family.
“The Bill is intended to allow the widow to inherit all unallocated property upon death of her husband and to dispose the same as she wishes but in line with the best interest of the children in the house without consulting in-laws,” the report adds.
The Bill’s statement of objects and reasons asserts that the gap between the applicable law and the prevailing customary practices seemed to be widening and that “the Laws of Lerotholi have been outpaced by the changes in the Basotho social life”.
“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. The 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 their sons and deceased brothers to administer her 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,” says the report.
While there were fears that the law could undesirably affect the patriarchal Laws of Lerotholi under which girl children are not considered for chieftaincy succession and inheritance, one of the stakeholders, LCN Executive Director Seabata Motsamai told this paper that “all concerned parties were properly briefed”.
“They understand that the law is not going to interfere with the chieftaincy or the monarchy. The Senate in particular, was thoroughly consulted, and they understand that nothing is at stake,” Mr Motsamai said.
