LESOTHO: National Laws

Summary: General overview of Lesotho's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national law

Traditionally Lesotho's courts have been unwilling to apply international treaties unless they have been incorporated by domestic legislation, but courts have been willing over the last decade to cite international conventions, such as the Convention on the Elimination of Discrimination against Women, in their decisions. The emerging approach appears to be that international human rights treaties, such as the Convention on the Rights of the Child, can be used to help interpret national law, though domestic law will take precedence if it is conflict with international treaties.[1] It is not clear whether the Convention on the Rights of the Child has ever been cited in Lesotho's courts.

Constitution: Chapter II of the Constitution of Lesotho contains a number of rights provisions that apply regardless of age, but a number of provisions related to children can be found throughout the Constitution:

• Section 6(1)(f): includes detention for the purposes of the education or welfare of a person under the age of eighteen within the permitted grounds under which a person may be deprived of his or her personal liberty, provided the deprivation is authorised by law.

• Section 12(10): provides that courts may, if empowered by law, exclude the public from judicial proceedings where it is in the interests of the welfare of persons under the age of eighteen.

• Section 13(2): entitles religious communities to establish and maintain places of education

• Section 13(3): provides that a minor may only be required to receive religious instruction or required to take part in or attend religious ceremonies or observances other than those pertaining to his or her own religion with the consent of his or her guardian

• Section 28: contains a number of provisions related to education rights, including that primary education must be compulsory and available to all.

• Section 27(1)(a): requires the State to adopt policies aiming at ensuring the highest attainable standard of physical and mental health for its citizens, including policies designed to provide for the reduction of the stillbirth rate, the reduction of infant mortality and for the health development of the child.

• Section 30(d): requires the State to adopt policies aimed at securing just and favourable conditions of work and in particular policies directed to achieving the protection of women who are in employment during a reasonable period before and after child birth.

• Section 32: requires the State to adopt policies designed to provide that (a) protection and assistance is to be given to all children and young persons without any discrimination for reasons of parentage or other conditions; (b) children and young persons are protected from economic and social exploitation; (c) the employment of children and young persons in work harmful to their morals or health or dangerous to life or likely to hamper their normal development is punishable by law; and (d) there are age limits below which the paid employment of children and young persons is prohibited and punishable by law.

• Sections 150(5) and 151(5): makes references to the rights of children with regards to pension benefits

Legislation: there is no comprehensive or consolidated Children's Act in Lesotho's laws, though the Children's Protection Act covers important areas of the law relevant to children. Legislation of particular relevance to children includes, but is by no means limited to:

• The Children's Protection and Welfare Act No. 7 of 2011

• The Children's Protection Act No. 6 of 1980

• The Penal Code Act 2010

• The Criminal Procedure and Evidence Act 1981

• The Sexual Offences Act No. 3 of 2003

• The Labour Code Order of 1992

• The Education Act 1995

• The Marriage Act No. 10 of 1974

• The Registration of Births and Deaths Act 1973

• The Aliens Control Act No. 19 of 1967

• The Refugee Act No. 18 of 1983

• The Lesotho Citizenship Order 1971

• The Age of Majority Ordinance No. 62 of 1829

• The Women and Girls Protection Proclamation No. 14 of 1949

• The Adoption Proclamation No. 690 of 1959

• The Deserted Wives and Children's Proclamation No. 590 of 1959

Legal Research

The website of the National Assembly contains a section dedicated to Acts of Parliament, but at the time of writing the texts of legislation were not available (http://www.parliament.ls/assembly/index.php). The Constitution of Lesotho is available through the official government website (http://www.gov.ls/documents/Lesotho_Constitution.pdf). The Lesotho Legal Information Institute provides access to a selection of domestic legislation (http://www.lesotholii.org/indexpage/num_act) as do the Commonwealth Legal Information Institute (http://www.commonlii.org/ls/legis/num_act/) and the World Law Guide (http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweles.htm). The African Child Policy Forum provides access to a selection of legislation relevant to children (http://www.africanchildforum.org/clr/Pages_EN/Lesotho.html). In addition, the GlobaLex project at New York University has published a guide to legal research in Lesotho (http://www.nyulawglobal.org/Globalex/Lesotho1.htm) and the World Legal Information Institute (http://www.commonlii.org/links/2691.html) and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/lesotho.php) provide access to a selection of legal and governmental resources. All resources are available in English.

Case Law

CRC Jurisprudence

Please contact CRIN if you are aware of any cases in national courts which have referenced the Convention on the Rights of the Child.

Case Law Research

The website of the Lesotho Legal Information Institute maintains a database of cases of the Court of (http://www.lesotholii.org/content/court-appeal), the High Court (http://www.lesotholii.org/content/high-court), the Commercial division of the High Court (http://www.lesotholii.org/content/high-court-commercial-division), the Labour Appeal Court (http://www.lesotholii.org/content/labour-appeal-court) and the Labour Court (http://www.lesotholii.org/content/labour-court).

Compliance with the CRC

Lesotho has not been reviewed by the Committee on the Rights of the Child since 2001, so many of the recommendations made by the Committee during that review may now be out of date. Nonetheless during the Committee's 2001 Concluding Observations, the Committee raised concern that a number of areas of domestic law were not compatible with the Convention on the Rights of the Child. The Committee also noted that customary law continued to be applied in many situations in ways incompatible with the Convention, and that the Convention was not directly applicable. The Committee urged the State to review its legislation with a view to ensuring full conformity of national law with the Convention and to consider enacting a comprehensive children's rights statute.

In depth analysis

A number of the more specific concerns raised in the Committee's 2001 Concluding Observations related to the definition of the child in many areas of national law. Of particular concern was that children were generally defined as under the age of 18, while the age of majority remained at 21; that there was no defined minimum age of sexual consent for boys; the minimum age at which children were able to consult a doctor without parental consent was very high; and the very low minimum age of criminal responsibility (7 years). The Committee urged the State to review the relevant laws to harmonise the age limits that affect children with the Convention on the Rights of the Child.

The issue of discrimination also featured prominently in the Committee's Concluding Observations, which noted that despite the provisions on non-discrimination within the national Constitution, serious discrimination remained within domestic legislation. The Committee specifically expressed concern that married women had the legal status of minors, at the difficulties faced by mothers in obtaining documents for children born out of wedlock and that laws on adoption discriminated against African parents. The Committee urged the State to urgently strengthen efforts to ensure full implementation of the principle of non-discrimination, including by amending relevant domestic legislation. 

The Committee also raised a number of serious concerns about the justice system, including the very low minimum age of criminal responsibility (7 years); the absence of a comprehensive juvenile justice system in conformity with international standards; the absence of juvenile courts in some regions and the failure to use them where they are in place; the lack of coordination between the Chiefs' courts and the criminal justice system; poor conditions in detention; the failure to monitor the pre-trial detention of children; and the legality of corporal punishment of children as a sentence. The Committee called on the State to undertake comprehensive reforms of the justice system to bring law and practice into conformity with the Convention.

Current legal reform projects

Please contact CRIN if you are aware of any current legal reform projects.

[1] See Tsepse v. the Independent Electoral Commission [CIV/APN/135/2005] 27 April 2005