MASERU – Transformation Resource Centre (TRC) has called on government to enact laws that would allow legal marriages between same-sex couples and permit adoption and fostering of children by gay couples.
Lesotho does not recognise same-sex marriages or civil unions, nor does it ban discrimination on the basis of sexual orientation or gender identity.
Marriage in the country is governed by customary law and common law, both of which exclude same-sex marriage, although same sex activity was legalised in 2012 in Lesotho.
The common law aspect of marriage, also known as a civil marriage, is governed by the Marriage Act no. 10 of 1974.
Male same-sex activity had previously been illegal in the country as a common law offence, but had not been enforced except where it was non-consensual.
“While the constitution of Lesotho lists prohibited grounds of discrimination, the list does not include sexual orientation,” TRC said in its 2019 Shadow Report on Human Rights: Situation in the Kingdom of Lesotho Under the African Charter on Human and People’s Rights.
“Over and above this, there is also no legislative framework for protection of the rights of Lesbians, Gays, Bisexual, Transgender and Intersexed (LGBTI) people and other sexual minorities.
“This omission leads to discrimination of various forms including denial of access to healthcare services, targeted assaults by the police, non-recognition of their unions as lawful marriages and their prohibition to adopt children,” it added.
The Child Welfare and Protection Act of 2011 governs adoptions in Lesotho and under the Act, only married couples may adopt a child jointly.
Section 55 (1) of the Act states that an application for an adoption order may be made jointly by a husband and wife.
Where an application for an adoption order is made jointly by a husband and wife, “there shall be a written proof to that effect”, the law states.
It says an adoption order may be granted to an individual person provided such a person “is above the ages of 25 years, is of good behaviour, is of proven integrity, is of sufficient means of livelihood and has no criminal record”.
The TRC report published on Monday this week, cited a raft of human rights violations in the country, proposes changes in a tranche of statutes and encourages bold decision to scrap some laws altogether.
According to the report, discrimination in accessing healthcare services has led to high prevalence of HIV and other sexually transmitted infections (STIs) amongst the LGBTI community and “spread of such in the entire country”.
It indicated that there was also discrimination against “inter-sexed children who at birth, are subjected to sex-reassigning” which leads to a number of complications at a later stage.
“Due to lack of legal protection, LGBTIs are also direct victims of domestic violence, denial of rights within their families, social exclusion and being forced into conventional marriages and initiation schools, amongst others,” it read.
“The LGBTI community is challenged with hindrance on the right to freedom of expression. They are unable to express their gender; they have challenges of cross dressing and recognising their gender identity.
“TRC notes that the LGBTI community is unable to express itself and thus suffer the social exclusion; and still Lesotho has not announced its stance on the LGBTI community,” it added.
Contacted for comment on yesterday, Ministry of Gender and Youth, Sports and Recreation’s Principal Secretary (PS) Tjoetsane Seoka referred Public Eye to Director of Gender ‘Matau Futho Letsatsi.
The department of gender, according to a statement on the ministry’s website, “ensures equality of all opportunities between women, men, girls and boys, so that development efforts have an equal impact on all gender issues”.
Letsatsi acknowledged to this publication that there was no law allowing same-sex marriage in the country but could not comment further.
Her department’s aim is “to facilitate proper integration of gender issues in development to ensure full involvement, participation and partnership of women and men, girls and boys in both their productive lives”.
In 2006, South Africa became the fifth country in the world, and the first in Africa, to allow legal marriages between same-sex couples, after a historic vote in Parliament on November 14, followed by the signature of then Acting President Phumzile Mlamblo-Ngcuka on December 30, passed the Civil Union Bill into law.
This was after the Constitutional Court in 2005 ordered that South Africa’s Marriage Act be amended, or new legislation be passed to allow gays and lesbians to enter into legal marriages.
Following a landmark application by Marie Fourie and Cecelia Bonthuys to be allowed to marry, the court ruled that the then existing legal definition of marriage was in conflict with that country’s constitution because it denied gays and lesbians the rights granted to heterosexuals.
Today, 30 years after the first-ever gay civil unions in Denmark on October 1, 1989, same-sex marriages are today allowed in 28 countries.
Danish homosexual couples would, however, have to wait until 2012 to be allowed to marry in church.
The right to a religious marriage ceremony was first allowed in the Netherlands in 2001 while Northern Ireland became the latest country on Tuesday to legalise same-sex marriage.
South Africa is the sole nation on the African continent to allow gay marriage.
Around 30 African countries ban homosexuality, with Mauritania, Somalia and Sudan having the death penalty for same-sex relations.
Uganda earlier this month announced plans for a bill that would impose the death penalty on homosexuals, saying the legislation would curb a rise in unnatural sex in the East African nation.
The bill – colloquially known as “Kill the Gays” in Uganda – was nullified five years ago on a technicality and the government said it plans to resurrect it within weeks.