…as National Assembly scraps clause 69 of the Act thereby disadvantaging “illegitimate” children
Mathatisi Sebusi
THE National Assembly’s decision to remove Clause 69 from the new Administration of Estates and Inheritance Act 2024 is proving controversial. It has split opinion among human rights defenders, who think the decision is retrogressive, politicians and principal chiefs.
Some principal chiefs did not support the clause, claiming that it would destroy families while some politicians said the clause should have been amended to retain some protection for children born out of wedlock instead of being totally deleted.
Human rights defenders are on the other hand adamant that scrapping the clause was a very bad decision as it discriminates against children on account of their status of birth.
Clause 69 of the new law had been proposed to afford children born out of wedlock the right to inherit a share from their biological parents’ property upon the latter’s demise.
“A child born out of wedlock shall inherit a child’s share from its biological father upon production of evidence that the deceased’s biological father had considerably and consistently been maintaining his child born out of wedlock or there is a maintenance order,” read clause 69 (a) of the Act as originally proposed.
Clause 69 (b)also read, “A child born out of wedlock shall inherit a child’s share from its mother, irrespective of its mother’s marital status”.
But MPs opted to do away with the clause arguing they wanted to protect the sanctity of children born in formal marriages.
The Administration of Estates and Inheritance Act 2024 is one of the three laws which parliament had to pass before 31 March 2024 in order for Lesotho to qualify for the $322.5 million (about M6.14 billion) aid package from the United States under the Millennium Challenge Compact (MCC) II. The other two were Counter Domestic Violence Act 2022 and Occupational Health and Safety Act 2022.
They were successfully passed into law by parliament before the deadline, qualifying Lesotho for the American grant to be used mainly in the health and horticulture sectors.
The Administration of Estates and Inheritance Act aims to review and consolidate the laws relating to inheritance, administration and distribution of estates of persons who are deceased, minor children, persons under curatorship, mentally incapacitated persons certified ill and incapable of managing their own affairs, and persons absent from Lesotho without a lawful representative and whose whereabouts are unknown, among other things.
Its primary objective was to do away with customary legal rules that only allowed the first born male child in a family to inherit all the property left by the parents to the exclusion of other children if there was no will left by the deceased parents.
Clause 69 of the Act was nonetheless supposed to be part of the new law to protect “illegitimate” children. It has now been dropped by the National Assembly after a majority of MPs voted against it.
Advocate Mamosa Mohlabula-Nokana from Women and Law in Southern Africa (WILSA) told the Lesotho Times this week that removal of the clause had deeply saddened them, not only because it will ensure continued discrimination against “illegitimate” children, but also because it will increase mental breakdown in children born out of wedlock. “Illegitimate” children is a term used to describe children born out of wedlock.
Adv Mohlabula-Nokana said WILSA had fought tirelessly for the rights of children born out of wedlock to be protected, but the fight had now been put in vain.
She said WILSA had been engaging with these children and a majority of them were battling mental health issues after being sidelined by their families over inheritance issues.
“It is very painful for these children to watch from the sidelines while their siblings born into marriage receive a share of their parents’ wealth, while they are abandoned and rejected wherever they go.
“They are mostly discriminated by their mother’s side of the family and rejected by their fathers’ side,” she said.
She said denying these children the right to inherit their biological parents’ properties was not only discriminatory against them but also violated their fundamental rights.
“The (proposed) law was clear. It protected children who were rejected by their families because of their birth statuses. It did not encourage people to make children out of wedlock as the parliamentarians say.
“We have laws in the country which make it compulsory for parents to ensure that children, despite how they were born, are taken care of. It is wrong to discriminate children because of their birth statuses. No child asked to be born out of wedlock,” Adv Mohlabula-Nokana said.
She said with the cancellation of the clause, the country stands to raise angry children who will live with the pain of being discriminated against. They will suffer the trauma of being deemed undeserving of their parents’ inheritance as opposed to their siblings born into the marriage setting.
She said these children were already experiencing social and mental illnesses which could only worsen if they were not protected by society.
Adv Mohlabula-Nokana said the issue was worsened by parents who abandoned their children born out of the wedlock when they got married, only to care for those born in the new marriages, while community members were left to look after the ‘orphans’.
The Principal Chief of Thaba Bosiu, Khoabane Theko, was among the Senators against clause 69 of the Act.
In an interview with Lesotho Times, Chief Theko said the clause had the potential to destroy families.
He said it was understandable for a parent to maintain their children made outside marriage until the age of 18. But expecting children born out of wedlock to share property/inheritance with the “legitimate” children born in a marriage would cause “unrest” in families, he said.
He however said the Senate was not responsible for the removal of Clause 69 of the Act. It came to the Senate already amended by the National Assembly. Theirs was only to endorse it, he said.
Basotho National Party (BNP) leader, Machesetsa Mofomobe, told the Lesotho Times that it was high time that Lesotho prioritised children’s welfare, irrespective of whether they were born out of wedlock or not.
Mr Mofomobe said, while it seemed unfair that a child “emerges from nowhere” after their father’s death to claim inheritance, children should be treated as equals where inheritance was concerned.
He said the National Assembly should have not totally deleted the clause but rather amended it.
“The problem comes where children born out of wedlock are concealed by their parents. It is high time that parents make such children known to their fathers’ families, not just to afford them inheritance, but also to ensure that even after the death of their father they can still be taken care of,” he said.
