The Impact of Customary Law on Children’s Rights in Lesotho

Abstract

Lesotho has a dual legal system, one based on customary law and the other on the received law. This appears clearly from the Constitution that ring-fenced customary law from any constitutional scrutiny. A customary practice may continue even if it discriminates against women and children. As a result of this, various human rights of children are violated. Firstly, if parents are married in terms of customary law and separated, the custody is granted to the father and the mother merely having the right to visit. Secondly, female children are excluded from property inheritance. Lastly, marital power of a husband still continues under customary law and therefore females are still treated as perpetual minors. The latter infringement of rights is not in the best interest of children and conflict with Lesotho’s international obligations. Lesotho is a signatory of numerous international and regional human rights instruments and it is suggested that it has to accelerate the incorporation of human rights instruments into domestic law in order to safeguard the best interest of children.

Keywords: best interest of children, equality rights, marital power & property inheritance