The impact of customary law and its constitutional protection on the social status and political participation of women in Lesotho
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Date
2022
Authors
Ramakhula, Thabang
Journal Title
Journal ISSN
Volume Title
Publisher
University of the Free State
Abstract
Lesotho has been experiencing a progressive decline in women’s political participation, despite the existence of numerous interventions that have been aimed towards combating this status quo. With a goal towards understanding the causes for this progressive decline as well as why interventions fail to yield positive results, I examine the possible relationship between custom, customary law, the Constitution and women’s social status and political participation in Lesotho. Towards this objective, I adopt a postcolonial and African feminist perspective to examine custom, customary law and the Constitutional protection afforded customary law in Lesotho. As a starting point, I explore the meaning and origins of custom from a general stance, and then go on to investigate the particular meaning of custom to the people who practice customs. This exploration affords a better understanding of not only custom, but also the value attributed to it by those who practice it, which value in turn enables it to exercise a form of authority over the overall being of such people. This authority, I find, makes custom instrumental in the formation and sustenance of social and political stereotypes as well as personal and communal beliefs and perspectives. I move on to customary law, particularly Lesotho’s customary law. I trace the history of Basotho’s customary law pre-colonialism into its codification during the colonial era. I argue in this discussion that the laws were instrumental in the formation and sustenance of women’s subordination under men as well as in the modelling of the hegemony, episteme and power dynamics in men’s favour, which have proven to negatively impact both women’s social status and political participation. In discussing the Constitution of Lesotho, from its inception and its final state following a number of amendments, I highlight how it contains a number of issues that signal a lack of desire to promote women’s empowerment or equality with men. I analyse the negative impact that the Constitution’s adoption of a dual legal system, the inclusion of claw back clauses, as well as the umbrella protection it affords customary law have on Basotho women’s social status and political participation. In centring women in the discussion, it becomes clear that there exists a link between custom, customary law, the Constitution of Lesotho and women’s social status and political participation. For one, I find that patriarchy is so deeply entrenched in the fabric of Lesotho, that all spheres of society exude it - whether this is evidenced through the stereotypical shaping of the social view of women, their exclusion from the public sphere and relegation to the domestic sphere, or even the denial of women’s access to the economic space of activity. The instrumental role played by law in the establishment of hegemony and episteme, which perpetuated women’s marginalization vis-à-vis power relations, citizenship and political participation is also brought to the fore. I underscore how custom and law then jointly shaped and portrayed man as the standard, while simultaneously ‘othering’ women. This then reveals how custom and law were, and still are, weaponised against women. My conclusion in this thesis is then that custom, customary law and the Constitution of Lesotho negatively impact both Basotho women’s social status and their political participation.
Description
Thesis (LL.D. (Law))--University of the Free State, 2022
Keywords
Custom, customary law, constitution, women's social status, women's political participation, power, politics, colonialism