‘Women’s rights are hu­man rights’

Lesotho Times - - Big Interview -

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.

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.

WLSA Na­tional Di­rec­tor Ad­vo­cate Libak­iso Matlho.

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