Lesotho Court of Appeal upholds gender quotas

A landmark ruling in the Lesotho Court of Appeal has dismissed an appeal to declare the reservation of one third of the local government seats for women as unconstitutional. The decision, a first for the Southern African Development Community (SADC) will hopefully lay to rest the critics who argue that the use of quotas is undemocratic.

 

The ruling is in response to a complaint laid by Molefi Tšepe, an aspirant male ward councillor with the Lesotho Independent Electoral Commission. He argued that the reservation violated his constitutional right to contest the elections in a constituency of his choice. His council requested that certain provisions of the countries’ Local Government Elections Act, be struck down as unconstitutional.

 

The respondents also relied on the constitution which provides for the Lesotho government to take positive steps to redress existing inequality that are: “reasonably justifiable” in a constitutional democracy. The Constitution states that the:  “state shall take appropriate measures in order to promote equality of opportunity for the disadvantaged groups in the society to enable them to participate fully in all spheres of public life.”

 

In a judgment handed down on June 30, 2005, the Court dismissed the appeal and upheld the High Court’s ruling.  It held that the amendment which provided for a temporary and rotating quota of electoral divisions reserved for women was indeed reasonably justifiable in Lesotho’s circumstances.  These included what Justice Peete in the High Court described as “an undisputable fact… that women in our society have long stood disadvantaged and marginalised socially, economically and… even politically.” While women make up more than 50 percent of the population in Lesotho, only 12 percent of the countries’ legislators are women.

 

The Court also considered Lesotho’s international obligations in terms of the International Convention on Civil and Political Rights; the Convention on the Elimination of all Forms of Discrimination against Women; and the African Charter on Human Rights and People’s Rights. All these human rights instruments provide for positive measures to achieve restitutionary equality.

 

The Court concluded that the Constitution contemplates substantive and not merely formal equality. Both directly through the Constitution and through Lesotho’s international law obligations, measures to achieve restitutionary equality are authorised in principle. 

 

The judgement stated that the measures taken: “…met the threefold test in such matters; they are rationally connected to the wider objective; secondly they impair as little as possible the rights in question; thirdly there is a proportionality between the effects of the measures and the objective. The elections were in no way tainted by unconstitutionality.”

 

The ruling is significant for the region as it is a public and formal recognition of the affirmative action principles behind the quota system. These principles it is argued are essential if the region is to meet the targets it has set regarding women’s representation in decision-making.

 

In South Africa the ruling African National Congress has recently adopted a policy of 50 percent women’s representation in decision-making, a move supported by the South African Local Government Association in its recent Benoni declaration. The African Union has upped the stakes from the SADC Declaration target of 30 percent to 50 percent, a move which will hopefully see governments do the same.

 

An important factor in realising Millennium Development Goal 3 to promote gender equality and women’s empowerment is the increase in women’s representation in political bodies. Indeed women’s equal representation in national parliaments is included as an indicator in measuring the success of the global goals. 

 

Gender quotas have demonstrated their effectiveness at increasing women’s representation in political bodies. The ruling in Lesotho is a victory for the region as it supports the use of quotas as a mechanism to increase women’s representation. It is also a lesson that speaks to the necessity of laws relating to quotas being specific in terms of the details of their implementation.