Today, the 10th of March 2026, marks exactly one year since judgment was delivered in ‘Manako Lethakha & Ors v The Lesotho Highlands Water Commission & Ors was read to the parties. The case arose from a constitutional challenge brought by three rural women affected by Phase II of the Lesotho Highlands Water Projectone of the largest infrastructure and development initiatives in Southern Africa. At its core, the litigation asked a deceptively simple constitutional question: whether a policy that appears neutral on paper can nonetheless produce discriminatory outcomes when applied within deeply unequal social realities.
The applicants asked the High Court to confront the lived consequences of development policy on women whose land, livelihoods, and social standing are shaped by long-standing customary and patriarchal structures. The court was therefore called upon to determine whether the LHWP Phase II Compensation Policy, particularly its reliance on the concept of the “head of household,” violated constitutional guarantees of equality and protection of property.
This anniversary arrives at a critical moment when the global community is itself reflecting on the unfinished struggle for gender justice. Just two days ago, on the 8th March, the world commemorated International Women’s Day under the theme “Rights. Justice. Action. For All Women and Girls.” The theme is not merely celebratory; it is a call to dismantle the barriers that continue to obstruct equal justice for women and girls. These barriers include discriminatory laws, weak or poorly implemented legal protections, and entrenched social norms that quietly but persistently erode women’s rights.
The global conversation continues this week as governments, civil society organisations, communities and institutions convene at the 70th Session of the Commission on the Status of Women (CSW70).Among the central questions before the international community is whether the world is prepared to move beyond rhetoric and ensure that women and girls enjoy genuine equality before the law, or allow injustice to persist with impunity. Put differently, the moment calls for reflection on whether legal systems are capable of deliveringjustice in practice rather than merely proclaiming it in principle.
It is precisely in this broader spirit that Lesotho must also pause and reflect. Anniversaries of landmark cases are not simply symbolic milestones. They provide an opportunity to examine what our courts have done, what they have failed to do, and what their decisions reveal about the trajectory of constitutional justice in the country. One year after Manako Lethakha, the question is not simply whether the court resolved a dispute about a compensation policy. The deeper question is what the judgment tells us about how our legal system understands
To appreciate the significance of the case, it is necessary to situate it within the broader structure of Lesotho’s legal system. Lesotho operates under a plural legal framework in which Roman-Dutch common law/ the received law inherited through colonial administration law operates alongside Basotho customary law.While this dual system reflects the country’s legal history and cultural traditions, it has also generated profound enduring tensions in the protection and realisation of women’s rights. Customary law, particularly as applied in matters relating to marriage, property, land allocation, and inheritance, has long been criticised for reinforcing patriarchal authority and the subordinate legal status of women. Women were historically treated as legal minors within marriage, excluded from meaningful control over property, and frequently dependent on male relatives for access to land and economic resources.
Recognising these structural inequalities, the early 2000s marked an important period of gender law reform in Lesotho. A series of legislative interventions sought to dismantle the legal disabilities historically imposed on women and align the country’s legal framework with constitutional guarantees of equality and international human rights commitments. Among the most transformative reforms was the Legal Capacity of Married Persons Act 2006, which abolished the marital power historically exercised by husbands over their wives in civil marriages. The Act grantsmarried women full legal capacity to enter contracts, administer property, and participate in legal proceedings without the consent of their husbands. In doing so, it dismantles a doctrine that had effectively rendered married women perpetual legal minors.
Subsequent reforms followed in related areas. The Land Act 2010introduced measures designed to strengthen women’s land rights by allowing women to hold and register land in their own names and encouraging joint titling within marriage. More recently, the adoption of the Counter Domestic Violence Act 2022 has sought to strengthen legal protection for survivors of domestic abuse, while the Administration of Estates and Inheritance Act 2024 has addressed discriminatory practices in succession and inheritance that historically disadvantaged widows and daughters. Parallel efforts to harmonise laws governing marriage, property, and inheritance have also sought to reduce the inconsistencies produced by the coexistence of statutory and customary legal systems.
At the constitutional level, further steps have been taken to strengthen women’s participation in public life. Recent constitutional reforms introducing affirmative action measures aim to address the persistent underrepresentation of women in decision-making institutions and promote greater gender balance in political leadership.
Taken together, these reforms demonstrate that Lesotho has not been indifferent to the demands of gender equality. Over the past two decades, the country has made notable efforts to align its legal framework with modern principles of equality and international human rights standards, including through the ratification of key regional and international instruments such as the Convention on the Elimination of All Forms of Discrimination against Women, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, and the African Charter on Human and Peoples’ Rights.
However, the existence of progressive legislation does not automatically translate into substantive equality in practice. Making women’s rights real requires far more than the enactment of legal reforms. The translation of formal equality before the law into equal outcomes is neither automatic nor guaranteed. Even where gender-equal laws exist, their impact may be undermined by entrenched inequalities, discriminatory social norms, and harmful customary practices that continue to structure everyday life.
Moreover, patterns of economic development themselves can reproduce or deepen gender inequalities. Large-scale development initiatives, land allocation systems, and compensation frameworks often operate through institutional arrangements that assume male authority within households or communities. In such contexts, policies that appear neutral on paper may still produce outcomes that systematically disadvantage women. It was precisely within this intersection between legal reform, customary practice, and development policy that the dispute in Manako Lethakha emerged.
The case was brought before the Constitutional Division of the High Court by three women from Mokhotlong, a district directly affected by the implementation of Phase II of the Lesotho Highlands Water Project. The applicants challenged the legality of the LHWP Phase II Compensation Policy (2016), arguing that its design and implementation produced discriminatory consequences for married women.
The dispute centred on the policy’s requirement that compensation payments for affected land and assets be disbursed to the “head of household.” In practice, this designation frequently corresponded with the husband, even in circumstances where land was jointly owned or where both spouses had participated in the compensation process. The applicants argued that although they had co-signed compensation documentation relating to their land and property, they were ultimately excluded from accessing the compensation funds, which were paid directly to their husbands. As a result, they were deprived of meaningful control over compensation linked to property in which they had a legitimate legal interest.
On this basis, the applicants mounted a constitutional challenge against the policy. They argued that the designation of husbands as heads of households for purposes of compensation disbursement disproportionately affected married women and was inconsistent with statutory reforms such as the Legal Capacity of Married Persons Act 2006 and the Land Act 2010, both of which recognise the equal legal capacity and property rights of spouses. They further argued that the compensation framework exacerbated gender inequality by systematically privileging male authority within the household and marginalising women economically.
The applicants also contended that the policy violated the Constitution of Lesotho, particularly Section 18, which guarantees freedom from discrimination, and Section 17, which protects individuals from the arbitrary deprivation of property without adequate compensation.
The High Court ultimately dismissed the constitutional challenge. The majority concluded that the Compensation Policy was formally gender-neutral and therefore consistent with the Constitution and relevant statutes. In the court’s view, the applicants had failed to demonstrate that the policy itself discriminated against women or authorised the arbitrary seizure of property. Although the court acknowledged that difficulties might arise in the implementation of the policy, it held that such issues fell outside the scope of a constitutional challenge to the policy itself
A separate opinion reached the same outcome through a different reasoning, emphasising the principle of constitutional avoidance and suggesting that alternative remedies such as proceedings before the Land Court or civil claims, could address the applicants’ grievances.
However, the factual record reveals a more complex story than the one reflected in the judgment.
The applicants did not passively accept the compensation arrangements imposed upon them. On the contrary, the record demonstrates that some of the women raised concerns during the compensation process itself and requested alternative arrangements, including the possibility of receiving their share of the compensation separately.
One applicant explained that she had been estranged from her husband for several years and specifically raised the issue of separate compensation with officials administering the process. Despite this, the officials insisted that compensation would proceed through the husband’s account in accordance with the “head of household” arrangement. The applicant ultimately agreed to co-sign the documentation only after being assured that she would receive her share of the compensation.
In practice, however, the compensation was deposited directly into the husband’s account. While she was able to obtain a portion of the first payment after intervention from a family member, the subsequent compensation payments were never shared with her. The economic value associated with property in which she held a lawful interest was therefore effectively placed beyond her control.
These facts are significant because they contradict the suggestion that the applicants’ grievances arose merely from private marital disputes. The women did not discover after the fact that their husbands controlled the funds. Rather, they warned officials in advance about the risks associated with directing compensation exclusively to their husbands, particularly where marital relationships were already strained.
Despite these warnings, the compensation process proceeded in a manner that placed full financial control of the funds in the hands of the husbands. The difficulty with the reasoning adopted in ManakoLethakha is that it rests on a narrow conception of equality one that looks only at whether a rule is neutral in its wording, rather than whether it produces unequal outcomes in practice. By focusing almost exclusively on the formal neutrality of the Compensation Policy, the court effectively insulated the policy from meaningful constitutional scrutiny.
However, constitutional equality cannot be reduced to a purely textual inquiry. A rule may appear neutral while still reinforcing existing hierarchies. This is particularly true in contexts where policies operate within deeply gendered social structures, such as rural land ownership, household authority, and economic decision-making.
In such contexts, a policy that channels compensation through the “head of household” cannot be assessed in the abstract. The concept of the head of household is not socially neutral. In many rural communities in Lesotho, it continues to be understood through a patriarchal lens, where men are presumed to be the primary decision-makers and economic controllers within the family.
A policy that directs compensation through this structure inevitably interacts with those underlying norms.
From the perspective of substantive equality, public authorities administering compensation schemes cannot ignore the predictable consequences of their decisions within unequal social contexts. Where women explicitly express concern that directing compensation to a spouse may deprive them of their lawful share, a gender-sensitive administration of the policy would require safeguards ensuring that both spouses have meaningful access to compensation.
Instead, the approach adopted effectively transferred the economic value of jointly owned property into financial arrangements controlled exclusively by men.
The majority judgment nevertheless characterised the resulting harm as a private dispute between spouses, suggesting that the applicants’ difficulties arose because they were “married to delinquents” who misused the funds. Such reasoning overlooks a fundamental point: the state cannot design or administer compensation mechanisms that foreseeably expose women to economic exclusion, and then disclaim responsibility when that exclusion materialises.
Where a policy operates within entrenched patriarchal structures, formal neutrality alone is insufficient. Substantive equality requires courts to interrogate how institutional practices interact with existing social hierarchies and whether those practices inadvertently reinforce them. By failing to engage meaningfully with this reality, the judgment risks normalising a system in which women’s legally recognised property rights can be effectively neutralised through administrative practices that concentrate financial control in the hands of men.
What, then, should be taken from Manako Lethakha one year later?
The first lesson is that legal reform alone is not enough. Lesotho has made significant strides in reforming discriminatory laws and recognising women’s rights. However, the promise of those reforms will remain incomplete unless institutions ensure that equality is realised in practice. This is where the courts play a crucial role. Courts are not merely interpreters of statutory language; they are guardians of the Constitution’s transformative vision. When disputes reveal that administrative practices undermine the spirit of equality laws, courts must be willing to examine those practices critically.
International Women’s Day this year called for “Rights. Justice. Action.” The message embedded in that theme is clear: rights proclaimed on paper must translate into justice in practice.
One year after Manako Lethakha, Lesotho has an opportunity to reflect on what equality before the law truly requires. The Constitution promises equality to all Basotho. The challenge before our courts, policymakers, and development institutions is to ensure that this promise is not confined to statutes and judgments, butbecomes a reality that women from urban centres to the remote highlands of Mokhotlong can genuinely experience in their daily lives.
