Download Harmonisation of national laws and policies: Lesotho

Harmonisation of laws relating to
children
Lesotho
Prepared by Julia Sloth-Nielsen
The African Child Policy Forum
PO Box 1179, Addis Ababa, Ethiopia
Tel: +251 (0)116 62 81 92/ 96/ 97
Fax: +251 (0)116 62 82 00
www.africanchildforum.org
www.africanchild.info
Table of Contents
Acronyms......................................................................................................................................... 3
Introduction..................................................................................................................................... 4
Country status................................................................................................................................. 5
Emerging issues ............................................................................................................................. 6
Definition of a child, right to a name and to a nationality and birth registration ....................... 6
Right to know parents, adoption, orphans and vulnerable children and alternative care ........ 7
Child welfare and protection, including child abuse, protection of children from violence,
customary law and practice ......................................................................................................... 12
Health, education and child labour ............................................................................................. 15
Child justice .................................................................................................................................. 18
Identification of best practices .................................................................................................... 26
Conclusions and recommendations ............................................................................................ 30
Bibliography .................................................................................................................................. 32
Appendix: About the author ......................................................................................................... 34
2
Acronyms
ACRWC
AIDS
CRC
CPWB
FGC
HIV
ILO
NGO
PRS
UN
UNICEF
UNAIDS
USAID
VOM
African Charter on the Rights and Welfare of the Child
Acquired Immune Deficiency Syndrome
Convention on the Rights of the Child
Children’s Protection and Welfare Bill
Family Group Conference
Human Immunodeficiency Virus
International Labour Organisation
Non- Governmental Organisation
Poverty Reduction Strategy
United Nations
United Nations Children’s Fund
Joint United Nations Programme on HIV/AIDS
United States Agency for International Development
Victim Offender Mediation
3
Introduction
Lesotho is a small mountainous landlocked country, surrounded by South Africa. It is rated
as one of the least developed countries in the world, with an annual per capita income
estimated to be just $415 US in 2001.1 Forty percent of the population survives on less than
1 USD per day. The child population comprises 49% of the total population of 2.2 million
people, and within the context of a society characterized by extreme poverty, children are
overrepresented.2 Within customary society, children growing up under Basotho custom
traditionally do not have much of a voice, and Lesotho has been described as not having a
mature human rights culture.3 Apart from endemic poverty, Lesotho is beset by a high
incidence of HIV/AIDS, resulting in a rising number of HIV/AIDS orphans. This has lead to the
recent formulation of a number of policies and strategies aimed at identifying and supporting
children without adult carers.4 Recent estimates give the national HIV infection rate at 31%,
with the rate climbing to 40% in the capital city, Maseru. It has been noted that agricultural
production has declined in recent years, and Lesotho, once and exporter of food, is
increasingly an importer of food.5 Migrant labour to neighbouring South Africa, once a key
income generator for the local economy, has been on the decline for some years.
Quick statistics6
Population
2.2 million
Area
30,300 sq km
Life expectancy
39 years
HIV/ AIDS prevalence
approx 31%
GDP per capita (US$)
2,400
Foreign direct investment (US$)
118 million
Adult literacy rate
82%
External public debt (2000) (US$)
720 million
Available from www.unicef.org.uk/C8/profiles (accessed 11 June 2006)
2000, Etsa Letsete la Kamoso, Netefatsa Litokelo Tsa Ka: The State of Children’s Rights in Lesotho,
NGO Coalition for the Rights of the Children, Save the Children UK
3 Ibid.
4 2005 ‘Of Newborns and Nubiles: Challenges to Children’s rights in the era of HIV/AIDS’ Sloth-Nielsen
J, International Journal on Children’s Rights, 13, 73 et seq. See too, guidelines developed in 2005/6
by the Lesotho Department of Social Welfare, together with UNICEF, regulating residential care for
vulnerable children, and making this Department the focal point for overseeing the proper delivery of
services to these children (discussed further below)
5 2001, Lesotho country paper presented at the workshop on drafting child related legislation with a
view to successful implementation Johannesburg, October (copy on file with author)
6 Available from: www.trc.org.ls (accessed 10 June 2006)
1
2
4
Country status
Lesotho ratified the Convention on the Rights of the Child (CRC) in 1992, and submitted its
first country report in 1998. The Committee on the Rights of the Child provided concluding
recommendations to this report in January 2001. Lesotho has ratified the ILO Convention
138 concerning the Minimum Age of Employment, and ILO Convention 182 concerning the
Termination of the Worst Forms of Child Labour.7 Lesotho acceded to the African Charter on
the Rights and Welfare of the Child (ACRW) on 29 October 1999, and ratified both the
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography and the Optional Protocol to the Convention on the
Involvement of Children in Armed Conflict on 23 September 2003. Further to the initial
country report submitted in 1998, no further reports to the Committee on the Rights of the
Child appear to have been submitted by Lesotho. There is a vibrant NGO community, and the
NGO Coalition for Children’s Rights, comprising 45 agencies and individuals, and with the
assistance of Save the Children (UK), produced a complementary report on the
implementation of the CRC in June 2000.8 The Convention text has been distributed in
Sesotho throughout the country.9
Lesotho has been involved in a lengthy and much praised10 process of law reform in the
sphere of child law. The process has been undertaken under the auspices of the Lesotho
Law Reform Commission, with Itumeleng Kimane as leader. A highly consultative process
was followed involving multi- sectoral teams and researchers, including government officials,
parliamentarians, academics, ordinary citizens, and last but not least, children whose views
and inputs have been sought by especially creative and unusual means.11 The resulting bill,
the Children’s Protection and Welfare Bill (CPWB), has been tabled in the national
parliament, but as of date has not been debated or passed. The bulk of this chapter will
discuss the import and objective of this bill, pointing especially to innovative and useful
In June 2001
2000 Etsa Letsete la Kamoso, Netefatsa Litokelo Tsa Ka: The State of Children’s Rights in Lesotho,
NGO Coalition for the Rights of the Children, Save the Children UK
98 May 2002, Speech by his Majesty, King Lestsie 111 at the 27 th Special Session of the United
Nations General Assembly on Children, Available from www.un.org/ga/children/Lesothoe.htm
(accessed 11 June 2006)
10 The Lesotho law reform process has been showcased at a number of international events, such as
the University of the Western Cape/ Miller Du Toit, child and family law conferences in 2003, 2004,
and 2006. Lesotho also was a learning site for visits by consultants from UNICEF, South Sudan
11 For example through drama productions and role playing (Personal observation at the Child Law
Reform workshop in Maseru, 2002)
7
8
5
advances contained in that document. The CPWB is based on the key principles of the CRC
and the ACRW, such as the best interest’s criterion, non discrimination, and recognition of
the evolving capacities of the child. The CPWB goes a considerable way towards defining
children’s duties as well: the bill provides for children’s responsibilities with regards to:
1. Respect for parents, guardians, superiors and elders at all times and depending on their
age;
2. The duty to assist parents, guardians, superiors in cases of need;
3. The obligation towards preservation and strengthening of social and national solidarity;
4. The need to uphold positive community values
Of essence, however, is the fact that the CPWB is not finalized, it has been described recently
as ‘long awaited”.12 Speedy finalization of the bill should therefore be a priority
recommendation.
Emerging issues
Definition of a child, right to a name and to a nationality and birth registration
Until the promulgation of the new legislation referred to above, some inconsistency in the
definition of a child remains in both civil and customary law in Lesotho. The age of majority is
21 years, and although the Children’s Protection Act 6 of 1980 contains a definition of a
child as being an unmarried person aged below 18 years (implying obviously that married
persons under that age do not qualify for the benefits of the Act), numerous other statutes
contain different age thresholds.13 The Age of Majority Ordinance 62 of 1829 stipulated that
the age of majority for civil law purposes is 21 years. However, under Sesotho customary law,
a female person who gets married remains a minor with the perpetual status of a child,
under the guardianship and marital power of her husband, if married in community of
property.14 The CRC expressed concerned about the low age of criminal responsibility (7
years), which the CPWB (2004) seeks to raise to 10 years. The system of birth registration is
inadequate, and recommendations for strengthening data capturing systems were noted in
response to the Lesotho Country report by the Committee on the Rights of the Child.
By the Minister of Health, Dr Phooko, at the occasion of the release of the 2006 State of the World’s
Children Report, available from www.medicalnewstoday.com/medicalnews.php?newsid=35105
(accessed 11 June 2006)
13 1998 Lesotho country report on the Convention on the Rights of the Child; see also: 2001, The
Committee on the Rights of the Child Concluding observations to the Lesotho Country Report,
(CRC/C/15/Add.147 (26 January 2001) at par 23
14 1998 Lesotho Country Report to the Committee on the Rights of the Child 8
12
6
As a response to the onset of the HIV/AIDS crisis affecting children in the country, Lesotho
has introduced a system of ‘vital registration’15 to identify and capture the details of
vulnerable children.16 This policy initiative is supported by proposed provisions of the CPWB
which provides for the right of orphaned and vulnerable children to vital registration, and
further that the Department of Civil Registration shall ‘maintain a systematic and
comprehensive disaggregated quantitative and qualitative data in relation to all groups of
orphaned and vulnerable children (clause 8 (2)), and that the Bureau of statistics shall put in
place mechanism and strategies for the collection, analysis and dissemination of data in
respect of these children (clause 8 (3)). As a key factor supporting services to the most
vulnerable, this legislative provision must be regarded as a concrete and advantageous best
practice in the African context.
The CPWB clearly spells out the child’s right to a name and a nationality (clause 6), as well as
the general right to registration of birth within three months of birth (clause 7). However, this
must be seen against a backdrop of low levels of birth registration that have prevailed in
practice. The CRC expressed the concern that procedures for the registration of birth were
inaccessible, cumbersome and expensive.17 It has recently been argued that ‘invisibility’ puts
children beyond the reach of laws, research, budgets and programmes, and often beyond the
reach of governments, organisations and people seeking to fulfil their rights.18
Right to know parents, adoption, orphans and vulnerable children and alternative care
The increasingly vulnerability of children in Lesotho due to the rapid escalation in the
prevalence of HIV/AIDS and the growing numbers of orphans and child headed households,
has already been mentioned. It has been noted that, coupled with related threats to child
well-being, such as the increased risk of exploitation, child labour and lower school
enrolment, HIV/AIDS in Lesotho threatens to undo many of the gains made for children since
ratification of the Convention on the Rights of the Child. Writing in 2005, Kimane describes
the magnitude of the challenge thus:
This is not defined in the Children’s Protection and Welfare Bill
For a discussion of the implications of ‘vital registration’, see J Sloth-Nielsen (note 4 above)
17 CRC Concluding observations, note 13 above, at par 29
18 2006,“Too many children in Lesotho are invisible and excluded’ available from
www.medicalnewstoday/com/medicalnews.php?newside=35105 (accessed 13 June 2006)
15
16
7
‘For countries such as Lesotho, orphaning has reached crisis levels in the recent
years. While there have always been orphaned children, it is believed that the
HIV/AIDS pandemic has fuelled the numbers beyond proportion. The HIV zero
prevalence rate for Lesotho is estimated at 29%. This puts her as the number three
of countries most ravaged by the pandemic in the world. Like elsewhere in the world,
the HIV/AIDS pandemic in Lesotho has also turned into the greatest humanitarian,
social, economic and developmental challenge of today.’ 19
Noting that UNAIDS, UNICEF and USAID estimate that 17% of the total child population is
orphaned, and that half of these are orphaned as a result of HIV/Aids, with a recent figure of
91844 orphaned children, it is asserted that the numbers continue to swell.20
The following statement was made at the UN General Assembly Special Session on Children
in 2002:
‘As our efforts begin to bear fruit, new challenges have arisen; chief among these is
the prevalence of the deadly HIV/Aids disease particularly among the youth and
children. HIV/Aids together with increasing levels of poverty does not only threaten to
undo much of the progress we have made in the health sector, but is also largely
responsible for the disintegration of families, loss of household income, increased
child labour, neglect, exploitation and lower school enrolment. The changing
structures of the family unit … have eroded traditional support structures for children
without parental care including those orphaned by HIV/Aids. The need for the
community as a whole to assume new roles as care providers for the most vulnerable
children has become even more urgent.’21
There has been a realization that the existing legal and administrative framework is
exceedingly weak as regards the protection and promotion of the rights of orphans. Not only
is adoption by Basotho nationals prohibited by a colonial decree which remains in force, as
discussed below, but the Children’s Protection Act 6 of 1980 is very much focused on
2005, Protecting orphaned children through legislation: the case of Lesotho, I Kimane, Paper
presented at the IVth World Congress on the Rights of Children and Youth, unpublished,20-23 March,
Cape Town South Africa
20 Ibid.
21 Speech by his Majesty, King Lestsie 111 at the 27 th Special Session of the United Nations General
Assembly on Children, 8 May 2002 www.un.org/ga/children/Lesothoe.htm (accessed 11 June 2006)
19
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children in conflict with the law, to the exclusion of more general provisions on child
welfare.22
The CPWB makes several important provisions in respect of children without parental care.
First, it provides for the right of orphaned and vulnerable children to vital registration.
Secondly, it gives children, whether or not born in wedlock or orphaned, rights to reasonable
access to the estate of their parents.23 There is an intentional emphasis in the CPWB that
both boy and girl children should enjoy similar rights in respect of family property.24 Duties
are placed on a range of role players in this regard, including employers, the Master of the
High Court and financial institutions.
For the first time, a detailed legislative framework for child protection is to be provided for.
‘The police, social workers, chiefs and community members are together mandated to take
children believed to be in need of care and protection to places of safety as a measure of
temporary care. This is the first piece of legislation in Lesotho, which empowers the social
workers to deal with cases involving vulnerable children. This is regarded to be a great
achievement and is to the great advantage of all children in difficult circumstances.’25 The
centrality of a children’s court in making order regarding children in need of care and
protection is confirmed throughout the CPWB (see for example, clauses 37 and 137).
Provision is made for far more comprehensive regulation of alternative care facilities; in part
XXI of the bill headed ‘Institutions’. The involvement of the Director of Social Welfare in
registering and maintaining appropriate standards in such care institutions and place of
safety is evident. 26
As regards to children in alternative care facilities at present, mention should be made of
the Juvenile Training Centre in Maseru, used by courts to detain children both in conflict with
the law, and in need of care due to neglect, abandonment and abuse. The Committee on the
Rights of the Child rightly expressed its views on this as follows:
Kimane (note 19 above) at 5
2004, Clause 38 et seq of the Lesotho Child Protection and Welfare Bill
24 2006 The Lesotho Child Protection and Welfare Bill 2005: Why the delays in enacting the
children’s law? Unpublished paper presented at the University of the Western Cape/ Miller Du Toit
conference ‘The globalisation of child and family law’ 26th – 27th January
25 Ibid at 7
26 See for instance clause 201(1) and (2)
22
23
9
‘The Committee is deeply concerned, in addition, that Juvenile Training centres are
used by courts to detain children for ‘welfare and education’ under the Children’s
Protection Act no 6 of 1980 even though these children have not committed any
criminal offence. The Committee is concerned that some parents choose to send
their children to such institutions as a way if disciplining their children. The
Committee is concerned that such detentions do not appear to be monitored and
that the children are usually detained with others who have been detained in the
context of criminal justice procedures.’27
Recent guidelines on residential and alternative care developed by the Ministry of Social
Welfare seek to minimise the risks to children in shelters and homes. This is in response to
make shift places of safety set up independently by individuals that have mushroomed, and
in which children may be exposed to further vulnerability, abuse and neglect.28 The
guidelines are intended to ensure that correct procedures are followed by service providers
from the identification of children, their placement and care and protection services including
health hygiene, education and psychosocial support.
The formulation of a National Policy on Orphans and Vulnerable Children was completed
during 2005. Addressing how this policy addresses child labour issues directly, Kimane and
Chipoyera state as follows:
‘This Policy recognises poverty, the HIV/AIDS pandemic and food insecurity to be the
current biggest threats to the survival, care, protection and development of children.
All efforts directed at meeting the basic needs of children including securing primary
education for them and reducing their vulnerability are defeated by these threats.
According to the policy, children involved in child labour and in commercial sex
belong to the broad spectrum of vulnerable groups found in Lesotho. The overall
purpose of the policy is to provide an enabling environment in which all vulnerable
children would enjoy their rights and be adequately cared for, supported and
protected. This would be achieved through the implementation of strategies aimed at
addressing factors such as economic, food insecurity, poverty, and lack of education,
health, nutrition and social protection. The government has introduced a bursary
scheme specifically targeted at orphaned and vulnerable children whose
27
28
CRC Concluding Observations, note 13 above, at par 37
Available fromwww.medicalnewstoday.com/php%3D39418 (accessed 12 June 2006)
10
participation in secondary education is low. Despite the difficulties of attracting outof-school youths to return to school to complete secondary education, the bursary
scheme provides a realistic opportunity for the poorest of the poor and AIDS orphans
to complete ten years of basic education.’ 29
It is clear that considerable energy and commitment is being targeted towards the problems
experienced by children as a result of the HIV/AIDS crisis, both at a policy and a legal level,
and this can certainly be regarded as a practice to be shared regionally.
The adoption provisions currently in law in Lesotho, have been mentioned previously. Relics
of colonial rule, currently Basotho are not permitted to adopt children, which has paved the
way for the growing practice of inter- country adoptions.30 That inter- country adoptions to
countries such as Germany and the Scandinavian countries are prevalent has been
confirmed to the author in verbal reports from welfare staff in Lesotho. Lesotho has not
ratified the Hague Convention on the Protection of Children and Cooperation in Respect of
Inter- country Adoption (1993), although this suggestion formed part of the CRC suggestions.
In 2004, the proposed CPWB purported to regulate adoption comprehensively. Not only are
important aspects such as children’s consent to adoption, the necessity of taking into
account their best interests, and dispensing with parental consent in suitable situations
covered, but the jurisdiction of the High Court in making adoption orders is spelt out in
detail.31 Further, foster care placement and adoption committees are envisaged at district
level, comprising the District secretary, the social workers and probation officer, an NGO
representative, two other people from the community with interest in the welfare of children,
and a representative of the Child protection and Gender Unit of the police. This Committee is
entrusted with the legislative mandate to screen prospective adoption and foster care
applications, but, given the ravages of HIV/AIDS and the growing numbers of orphans, this
2006 Discussion Document on Child Labour in Lesotho, Kimane, I and Chipoyera, H, International
Labour Organisation, unpublished draft, 24 May, p35
30 The Committee noted that there is ‘de jure discrimination against prospective parents who are
African… lack of monitoring with respect to both domestic, including customary law adoptions, and
inter country adoption is also a matter of concern’ (CRC Concluding Observations note 13 above, par
38)
31 Including the requirement that the High Court must (inter alia) be satisfied that any prospective
applicant has not received or agreed to receive any payment and that no person has made of agreed
to make any payment or reward to facilitate an adoption, save where the High Court has ordered
otherwise (clause 63(1)(e))
29
11
Committee could well play a more proactive role in securing legal guardians for vulnerable
children, given its location at grass roots level.
As regards inter-country adoption, The CPWB expressly permits adoption by persons who are
non-citizens of Lesotho, provided that he or she has stayed in the country for at least three
years, has fostered a child for at least two years under supervision of a social worker, does
not have a criminal record, has a recommendation concerning his or her suitability to adopt a
children from his or her country of origin, and has satisfied the High Court that his or her
country of origin will respect and recognise the adoption order and will grant residence status
to the child.32 This can be regarded as a suitably detailed set of protective provisions, the
only caveat being that the draft does not expressly incorporate the principle of subsidiarity
(that no prospective adoptive parents within the country of birth can be found), as provided
for in international law.
Speaking at a workshop on the Lesotho CPWB in 2004, the author identified the legislative
proposals concerning adoption generally and inter-country adoption specifically as
constituting a key strength of the bill.33
Child welfare and protection, including child abuse, protection of children from violence,
customary law and practice34
Absent the enactment of the CPWB, the primary legislation governing child welfare is the
Children Protection Act 6 of 1980, which covers unmarried persons aged below 18 years who
are in need of care, abandoned, neglected, abused, in a difficult situation or who are juvenile
offenders.35 A number of documents have pointed to the lack of differentiation between
children in need of care and young offenders which characterises this legislation, as well as
the absence of clear guidelines as to when it is in a child’s best interests to be removed from
the home.36 The CPA vests authority for the removal of children with the police of probation
Clause 65 (1). See further the remainder of the provisions in clause 65, which spell out further
protections for inter-country adoptions both by foreigners, and of foreign children by Mosotho persons
residing in Lesotho
33 This is mentioned by Kimane (note 24 above)
34 See generally, 2003 ‘Child Victims of Sexual Abuse, Exploitation and Violence’ Fanana, N, Issue
Paper 2, Child Law Reform Project, Lesotho Law Reform Commission
35 F Mokoteli ‘Problems facing children in Lesotho prisons: with special reference to the Juvenile
Training Centre’ unpublished LLM dissertation, 2005, University of KwaZulu Natal, copy on file with
the author
36 2000 Etsa Letsete la Kamoso, Netefatsa Litokelo Tsa Ka: The State of Children’s Rights in Lesotho,
NGO Coalition for the Rights of the Children, Save the Children UK
32
12
services, and accords no mandate to the Department of Social Welfare, a highly anomalous
situation. Although the legislation provides that legally courts have the jurisdiction to
authorize removal in practice many children have until now been informally cared for without
legal authority, both in institutional settings and otherwise. The NGO Coalition noted that
many children remain abandoned in care institutions, without cases being reviewed or
monitored (as required by the Convention on the Rights of the Child).37 The recently
announced policy on orphaned and vulnerable children provides some remedy for this,
although as a policy it lacks the force of law that would have been preferable.
At the practical level, the issue of a lack of capacity within the Department of Social Welfare
has been a key stumbling block identified during the process of drafting the CPWB. As a
researcher noted:
‘The ideal position for the Department of Social Welfare is to have one social worker
and one social welfare assistant in every district in the country. The present staff
complement of the Department is 6 social workers and 6 social welfare assistants…It
became clear during consultation that there is a dearth in local social work
personnel…The few social workers in the Department have been trained outside
Lesotho, mainly in Zambia, Tanzania and Zimbabwe where standards and methods
of training are different.’38
Noting at the time the absence of a clear social welfare policy to guide service delivery, the
researcher pointed also to some very context specific practical problems relating to the lack
of vehicles and the difficulty in accessing more remote areas of the country. Child protection
is a key aim of the National Social Welfare policy of 2003.
The CPWB contains a comprehensive framework for addressing child abuse and neglect, and
identifies the relevant duty bearers responsible to intervening to protect children. The
Also see: 2002 ‘The Strengths and Weaknesses of the Department of Social Welfare in Lesotho’ AC
Nyanguru (Unpublished research report commissioned by the Lesotho Law Reform Commission, 16,
copy on file with the author)
37 2000 Etsa Letsete la Kamoso, Netefatsa Litokelo Tsa Ka: The State of Children’s Rights in Lesotho,
NGO Coalition for the Rights of the Children, Save the Children UK
38 2002 ‘The Strengths and Weaknesses of the Department of Social Welfare in Lesotho’ AC Nyanguru
(Unpublished research report commissioned by the Lesotho Law Reform Commission, 16, copy on file
with the author)
13
children’s court is accorded a central role in making placement orders, and social workers
are accorded a vital role in child protection processes. Ill-treatment, neglect, abandonment or
exposure of children to abuse is to be criminal offences, and a prohibition on the use of
children in begging is envisaged.39 Trafficking and abduction of children constitutes an
independent chapter of the CPWB.40 In short, the child protective provisions can be regarded
as being extensive, and a key strength of the draft legislation.
In 2003 a new Sexual Offences Act was enacted in Lesotho, a response to widespread rape
and the burgeoning AIDS crisis. For the first time, the law sets stiff penalties for rape, incest
and other offences, including offering children favours for sex. Rapists are obliged to take an
HIV test, and men who rape while knowing that they are HIV-positive can face the death
penalty. Whereas rapists formerly received suspended sentences or a few months in jail, the
sanction is now a minimum 10 year prison sentences. A dedicated Gender and Children Unit
has been set up within the police to deal with rape, abuse and other related offences. This
legislation also contains specific sections that protect children against commercial sexual
exploitation as well as their use in pornography. Specifically the act reads as follows:
‘Child prostitution:
1) A person who commits a sexual act with a child for financial or other reward,
favour or compensation to the child or to any other person commits an offence.
2) A person who invites, persuades or induces a child to allow himself/herself or
another person to commit a sexual act with the child for financial or other reward,
favour or compensation to the child or to any other person commits an offence.
3) A person who agrees to the invitation, persuasion or inducement to commit a
sexual act with a child for financial or other reward, favour or compensation to the
child or to any other person commits an offence’.
Many Basotho children grow up under customary law, and it is therefore no surprise that the
CRC of the children commented on both harmful practices and the discrimination endured by
children in this milieu. Specific reference can also be made to the Committee on the Rights
of the Child’s concern that traditional practices and attitudes in Lesotho have limited the
implementation of children’s rights to participate or be heard, as asserted by article 12 of the
39
40
See Lesotho Children’s Protection and Welfare Bill clauses 44-46
Part V111
14
CRC.41 In this regard, the extensive participation of children in the law reform process, and
the inclusion of participation rights in the CPWB is a significant step forward.
Health, education and child labour
As regards education, Lesotho took the step of introducing universal free primary school
education, which was to be implemented progressively, in 2000.42 By 2006, all primary
school children throughout the country are supposed to have access to free primary
schooling (approximately seven years of schooling). 43 The Committee on the Rights of the
Child also praised the Government for efforts ‘to promote and enhance the quality of basic
education by improving the level of teacher training, the pupil teacher ration and the coordinated management of schools.’44 An education review is currently underway and will
reported be completed in 2007.45
In the food and nutrition sectors, intensive efforts to combat micronutrient deficiency through
food fortification have been recorded, as well as a national campaign for salt iodisation.
However, HIV/AIDS remains the most serious health related issue facing Lesotho’s children.
It is therefore unsurprising that the Lesotho CPWB contains some useful provisions
applicable to the HIV/Aids environment. Not only is provision made for vital registration and
testamentary issues, as mentioned above, but the legislation will also cover a range of
protective measure relating to child health. Part XXV of the Bill deals with consent to medical
treatment or surgical operations, and provides for the child’s right to provide independent
consent as of the age of 12 years.46 No child may be tested for HIV/ AIDS without consent,
and unless it is in the best interests of the child.47 Consent may be given by a child aged 12
years or older, or where a child is aged below 12 years or is not of sufficient maturity or does
not have the mental capacity to consent, by a parent, guardian or care-giver, by a social
2006 Representing children worldwide: how children’s voices are heard in child protection
proceedings: Lesotho, available from:
www.law.yale.edu/rew/jurisidictions/afs/lesotho.fromntpage.htm (accessed 13 June 2006)
42 CRC Concluding Observations (note 13 above) par 5
43 2002, speech by his Majesty, King Lestsie 111 at the 27 th Special Session of the United Nations
General Assembly on Children, 8 May 2002, available from: www.un.org/ga/children/LesothoE.htm
(accessed 11 June 2006)
44 CRC Concluding Observations (note 13 above) par 5
45 2006 Discussion Document on Child Labour in Lesotho, I Kimane and H Chipoyera, International
Labour Organisation, unpublished draft, 24 May
46 This and other provisions discussed here are modelled on the South African provisions contained in
the Children’s Bill 70D of 2003, adopted by the National House of Assembly in December 2005. The
Children’s Bill process and content s are discussed fully on the South African chapter
47 See the Committee on the Rights of the Child’s General Comment no 3 on HIV/ AIDS and the Rights
of the child concerning the best interests requirement
41
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worker arranging placement of the child, and in some instances by the head of a hospital or
a children’s court. For a country emerging from a cultural past premised on traditional values
which do not promote children’s autonomy, these are indeed far reaching provisions. Further
provisions relate to children’s access to reproductive health information and devices, and it
is specifically provided that reproductive health devices and technologies may be provided to
a child ‘on request by the child and without the consent of the parent or guardian of the child
provided that the child is at least twelve years of age, proper medical advice is given to the
child, and provided that a medical examination is carried out on the child to determine
whether there are any medical reasons why a specific contraceptive should not be provided
to the child.’48
Regarding child labour, a draft discussion paper on measures to combat the worst forms of
child labour in Lesotho is about to be finalised.49 The survey and rapid assessments show
the critical importance of focusing efforts on the following categories:
1. Herd boys
2. Children working in the streets
3. Child domestic workers
4. Commercial sex workers.
The Discussion document comments on the situation of child labour as follows:
‘Documented evidence shows that child labour has been practiced for decades in
Lesotho. In fact, it is widely believed that working is part of the growing up and of
child socialisation and development. In particular, herding has for a long time been
reserved as an activity for boys while household chores were for girls. A number of
times, children were also hired out to herd and perform household work for other
families other than their own. In other words, the phenomenon of working children is
not at all novel in Lesotho. However, what seems to have changed over time is the
magnitude, range and the types of work children perform. This change is influenced
by, among others, urbanisation and the growth of the informal sector. While the past
conditions under which children performed these activities were perhaps equally
harsh and harmful, engaging children in this way was never conceptualised or
Lesotho Children’s Protection and Welfare Bill clause 245
2006, Discussion Document on Child Labour in Lesotho, International Labour Organisation,
unpublished draft, 24 May
48
49
16
labelled as child labour. The level of awareness that work can be exploitative and
hazardous to children has also increased.”50
The 1992 Labour Code is the main legal instrument governing labour issues in Lesotho. This
legislation was amended on two occasions; in 1995 and 2000, respectively and is currently
in the process of being reviewed the code prohibits the employment of children 15 years and
younger except in the immediate family or where a family establishment engages five or
fewer people. However, it has been pointed out that the statute fails to regulate other types
of work children engage in such as domestic labour or hard manual labour, herding,
commercial sex, drug trafficking and street vending and operating as taxi conductors. Also
the Labour Code does not cover activities that children engage in within the informal sector,
subsistence agriculture and self employment the new CPWB 2004 articulates what
exploitative labour is and emphasizes the need for protecting children from its different
forms. The bill recognizes child labour as a child protection issue and stipulates in explicit
terms that children have the right to be protected from different forms of exploitative labour
that deprives them access to health and education or in any way hinders their development.
Engaging a child in night work in industrial undertakings is prohibited. The minimum age for
child labour is set at 15 and for light work at 13. Children below the age of 18 years are
debarred from engaging in any form of hazardous work which includes such activities as
mining and quarrying; porter age of heavy loads; chemical manufacturing and production;
operation of machinery; work in bars, hotels and places of entertainment where they may be
exposed to immoral behaviour; herding at the cattle posts; commercial sex work and tobacco
production and trafficking. Finally, this empowers the Ministry of Employment and Labour to
receive reports on child labour practices and also to investigate and take appropriate action
in relation to cases of children engaged in industrial undertakings.51 It has been asserted
that these provisions will sufficiently domesticate the relevant ILO conventions once
enacted.52
Ibid, p6
2006 Discussion Document on Child Labour in Lesotho I Kimane and H Chipoyera, International
Labour Organisation, unpublished draft,24 May, p33
52 Ibid.
50
51
17
Child justice
Lesotho has made significant progress towards establishing a juvenile justice system, as
pointed out by the Committee on the Rights of the Child.53 First, the Juvenile Training Facility
for male offenders is a separate institution for the rehabilitation of children in conflict with
the law. (Female offenders are, however, held at the Maseru Female prison, where they are
not separated from offenders aged over the age of 18 years).54 Second, a recent
development has been the establishment of a specific police task force dealing with children
and women. Third, probation as a unit within the Ministry of Justice is well established, and
an international award has been given to the former Chief Probation officer for her
contribution to the furtherance of restorative justice in the country. However, the Committee
on the Rights of the Child also pointed to a number of weaknesses in the administration of
the juvenile justice system, including the following specifically:
1. The low age of criminal responsibility
2. The absence of juvenile courts in some regions or the failure to use them even when
available
3. The absence of systematic free legal advice and representation of accused children
Weaknesses in the co-ordination between the chief’s court and the criminal justice system
4. Overcrowding in detention facilities, and the holding of minors in adult detention facilities
5 Failure to monitor the length of time children spend in detention
6. Limited alternative sentencing options
7. The legality of corporal punishment as a sentence for boys under the Criminal Procedure
and Evidence Act, 1981.55
Odongo56 describes aspects of the CPWB which will govern the child justice system once
enacted in considerable detail. First, regarding the provisions related to age and criminal
capacity, he notes that the proposed South African and Lesotho57 CPWB are similar. In both
CRC Concluding Observations, note 13 above, par 61
The Children’s Protection Act 6 of 1980 does not specify a specific length for detention imposed as
a sanction, but the effects of section 9(1) and (2) of the Prisons Proclamation 37 of 1957 are to the
effect that a child can be held in the Juvenile Training centre for a period not exceeding three years.
They may be released earlier (after 9 months) but this seldom occurs. See, Lesotho Law Reform
Commission Issue Paper on the Administration of Juvenile Justice (2003), copy on file with the author.
55 CRC Concluding Observations, (note 13 above) par 61. The prohibition against torture and inhuman
or degrading punishment in Article 8 of the Lesotho Constitution is qualified by a proviso which
specifically allows for the continued use of judicial corporal punishment.
56 2006 The domestication of international law in juvenile justice reform in Africa Odongo G,
Unpublished LLD thesis, University of the Western Cape
57Lesotho Children’s Protection and Welfare Bill, clause 83
53
54
18
cases, there is an increase in the minimum age of criminal capacity from 7 to 10 years and a
retention of the rebuttal presumption of incapacity for children aged between 10 and 14. The
juvenile justice law reform process in South Africa did inspire the process of development of
the CPWB 58 and the motivations behind the South African reform proposals seem to have
held sway in Lesotho. The motivations for adopting this position are canvassed in the South
African Law Commission’s Report.59
Noting that in response to the South African country report that the Committee on the Rights
of the Child did not analyse whether the modification to the common law rule on the doli
presumption and the strengthening of the rebuttal procedure ensured consistency with the
CRC,60 Odongo submits that in light of the Committee’s overall approach to this issue, and in
particular, its fledging jurisprudence pointing to an important ‘protective role’ for the
presumption where the minimum age is below 12, the proposed provisions of the South
African and CPWB may be substantially in conformity with international law in this area.
In respect of children below the age of capacity, the proposed new law again envisages
provisions similar to the South African model, and that a primary role for probation officers or
child care workers is provided for.61 Further provisions legislate for the powers and duties of
the same officers to assess the child for the purpose of detailing how to deal with children
below the age of criminal capacity or found lacking capacity.62 In these events, discretion is
accorded to the probation officer or child care worker to take one of a number of options
thus:63
1. Refer the child and/or the family to counselling or therapy.
2. Arrange support services for the child’s family.
3. Convene a conference (attended by the child, the child’s parents or appropriate adult, the
victim of the offence, any other persons deemed relevant by the child care worker or
58Kimane,
I (2004) “The Children’s Law Reform Process in Lesotho” 4 (Unpublished Paper on file)
(noting the study tours by the Lesotho Law Reform Commission to South Africa as having been of
significance to the reform process in Lesotho)
59South African Law Commission Report on Juvenile Justice (2000) Chapter 3
60 Odongo (note 56 above),p182
61Lesotho Children’s Protection and Welfare Bill, clause 93
62Lesotho Children’s Protection and Welfare Bill, clause 93. (Other purposes of assessment as
detailed in these provisions include, preparation for preliminary inquiries before trial and gauging the
prospects of diversion in each individual case)
63 Lesotho Children’s Protection and Welfare Bill, clause 93 expressly provides for these options
19
probation officer). The purpose of such conference is to obtain more information and details
of the circumstances surrounding the alleged child offending and the formulation of a plan.
4. Take no further action
It has been suggested that the option of using conferences as a social intervention
mechanism in child care and welfare issues is a novel one, thereby extending the use of
family group conferences (now a feature of many juvenile justice systems) beyond the sphere
of juvenile justice.64
In relation to the requirement at international law that alternatives to criminal trials be
encouraged wherever possible, provided that human rights safeguards are ensured,65 the
Committee on the Rights of the Child noted the existence of local Chiefs’ Courts to adjudicate
isolated cases of ‘petty’ child offending. However, the Committee also highlights these
Courts’ failure to uphold due process safeguards and children’s rights (for example their
predominant use of corporal punishment). As mentioned, the Committee also remarked on
the lack of co-ordination between these courts and the formal criminal justice systems.66
Other authors have also commented that “the process and sentencing system of the
traditional chieftainship justice in Lesotho did not conform to the principles embodied in the
CRC and the various international standards on administration of juvenile justice.”67
The Lesotho CPWB draws substantially from the South African Child Justice Bill’s proposals
on diversion68 both confirming the influence of the South African reform process in the
development of this aspect of the draft legislation. The key mechanism for the advancement
of diversion is the proposed preliminary inquiry, a novel pre-trial procedure at which (inter
alias) diversion can be considered at the earliest possible stage after arrest of a child.69 In
addition, a comprehensive series of sections dealing with diversion provide for a range of
innovative diversion options, explained by Odongo as follows:70
Odongo (note 56 above), p187
Article 40(3)(b) of the CRC
66 Concluding Observations, note 10 above, par 61
67 1998 Traditional Systems in Lesotho Thacker, R in 1998, Justice for Children: Challenges for Policy
and Practice in sub-Saharan Africa London, Petty, R C and Brown, M (eds.) Save the Children
68 2004 Child law reform process in Lesotho, Kimane, I, unpublished Paper on file. Also, Odongo (note
56 above), p240
69 Lesotho Children’s Protection and Welfare Bill part X11
70 Odongo (note 56 above), pp247-8
64
65
20
“Level one diversions comprise the least onerous options…. This level is enacted as
suitable for children aged ten years old and above and represents orders which allow
the child to remain in the family or community. These comprise of a range of options
including orders placing a child under a good behaviour order, a family time order,
supervision and guidance order, a compulsory school attendance order, a reporting
order and a positive association order. It is instructive that apart from complying with
the obligation at international law on the need for diversion, these options are also
pragmatically suitable for the three countries on account of the fact that they can be
implemented with little fiscal and monetary resources as they rely on the role played
by the child’s own family, community or school.”
Level two diversions comprise of any of the level one diversion options but with an extended
duration (for up to six months). They also include options such as orders for monetary
compensation and community service to victims of crimes or the child’s immediate
community. Prominently included as level two diversion options are restorative justice
options such as referral of the child to family group conference (FGCs) or victim offender
mediations (VOMs).71 The intention is to enact a tiered approach in which level two
diversions apply to more serious offences in respect of which level one diversion may not be
appropriate.”
“Third level (level three) diversions are the most intensive and are intended for cases
of serious or repeat offending. Two explicit conditions contained in the three bills
justify this view. The first is the provision that for level three diversions to apply, the
child offender must be 14 years of age or older. The second is the condition that level
three diversions would apply only where a court, upon conviction of a child, “would
impose a sentence involving detention of the child (either prison or a reform school
sentence) for a period exceeding six months”.72
Most importantly, the Lesotho CPWB enacts substantive and innovative provisions on
restorative justice.73 Itumeleng Kimane, chairperson of the Child Law Reform Committee,
describes these provisions thus:
71Lesotho
Children’s Protection and Welfare Bill, section 133
Children’s Protection and Welfare Bill, clause 133(5)
73Lesotho Children’s Protection and Welfare Bill, clause 131(7) (f)
72Lesotho
21
‘The principles of restorative justice and diversion embraced in the bill uphold the
principles of reconciliation and restitution rather than retribution and punishment.
The following are the salient features of the child justice as provided for in the CPWB:
1. Families, communities, civil society groups and traditional leaders are empowered
to take responsibility over the prevention, control and supervision of delinquency and
child offenders
2. These structures are also empowered to deal with offending behaviour in the
child’s local environment through the use of Family Group Conferencing, Victimoffender Mediation and other restorative justice processes;
3. Custodial sentencing measures are de-emphasized in favour of a number of
diversionary options including use of oral or written apology, caution by a police
officer with or without conditions, compulsory school attendance, order to be of good
behaviour, family time order, placement under supervision or guidance, etc.;
4. Sentences with a non-residential element are introduced hence provision is made
for the establishment of institutions such halfway houses for supervision, vocational,
educational and technical training; and
5. Communities and civil society organisations to run diversion programmes.’74
The proposed provisions in the Lesotho CPWB task the chairperson of newly created “village
child justice committees” (a form of local courts) with the convening and facilitation of family
group conferences and victim offender mediations.75 The creation of a role for local courts in
the restorative justice process in the CPWB is reminiscent of a reliance on the local
community structures which was a feature of the approach in Ghana and Uganda, and
supports the argument that the CPWB seeks to incorporate African traditional mechanisms
of adjudication, in a fashion which can decidedly be regarded as constituting a best
practice.76 Moreover, the possible objections to patriarchal and authoritarian structures
forming alternative dispute resolution are considerably ameliorated. The draft legislation
provides that the members of the village justice committee shall comprise the village chief
and six other elected members. The Committee can elect its own chair from amongst its
members. Decisions must be reached by consensus. Corporal punishment, the performance
2006,The Lesotho Child Protection and Welfare Bill 2005: Why the delays in enacting the children’s
law?, Kimane, I, unpublished paper presented at the University of the Western Cape/ Miller Du Toit
conference, The globalisation of child and family law 26th – 27th January, 2006
75 Lesotho Children’s Protection and Welfare Bill, clause 125
76 Odongo (note 56 above), p253
74
22
of community service for children aged under thirteen years77 and where such service
conflicts with a child’s schooling, public humiliation and diversion measures which require
payment by a child or parent for eligibility, are all specifically prohibited in the process of
diversion.78
Even more innovative are the provisions for ‘open village healing circles, to be convened by
the chairperson of the village child justice committee in regard to delinquent acts where
there have been two or more acts of anti-social behaviour perpetrated by a child, where the
acts impact on all members of the community, where two or more children are involved,
where there is group related conflict such as that between two villages, or where there is a
high probability that the anti-social behaviour or offence will be replicated.79 This locally
developed response to communal resolution of conflict involved youth in trouble with the law
is indeed an interesting adjunct to contemporary restorative justice initiatives.
As regards sentencing and alternative sentencing, Odongo is of the view that the current
statutory child law of Lesotho (the Children’s Protection Act 6 of 1980) is the most far
reaching of the laws before the recent juvenile justice law reforms in the six African countries
he studied.80 This law currently prohibits the imprisonment of children who commit offences
whilst under the age of 18 years.81 However, research conducted during the law reform
process indicated that
“In practice, many courts sentence children to a term of imprisonment under the
guise of the JTC (the Juvenile Training Centre). This facility is meant to qualify as an
77Lesotho
Children’s Protection and Welfare Bill, clause 131(6)
Children’s Protection and Welfare Bill, clauses 131 and 132
79 Lesotho Children’s Protection and Welfare Bill, clause 128
80 Odongo (note 56 above), p329
81 Section 26(1). This prohibition of imprisonment in respect of children was confirmed by the decision
of the Lesotho High Court in the 1995 case of R v. Nozabalese 'Moso (discussed in Committee on the
Rights of the Child: Lesotho’s Initial State Report to the CRC, CRC/C/11/Add.20, 20 July 1998). The
accused in this case, a 15 year old girl, was charged and found guilty of the murder of her infant baby
by the trial court. The Court imposed a sentence of imprisonment on an appeal to the Lesotho High
Court, counsel for the accused correctly argued that the girl could not be imprisoned as she was below
the age of 18 years and as such was a child as defined by section 2 of the Children’s Protection Act
No. 6 of 1980 The High Court overturned the decision on sentencing by the court a quo. It held that
the sentence of imprisonment was contrary to section 26 (1) of the Children’s Protection Act which
prohibited imprisonment as a sentence for child offenders. However, the appellate judge did not
consider the social inquiry report tabled by counsel for the defence which recommended the sentence
of community service to be imposed on the appellant. The appellate judge then sentenced the
accused to ‘an indefinite period of detention’ in the Juvenile Training Centre section 2 provides for a
definition of children as persons under the age of eighteen years
78Lesotho
23
approved school where juveniles should undergo a period of training and
rehabilitation. Pursuant to section 29 of the Children’s Protection Act, the JTC is
supposed to be supervised by the chief probation officer, while section 30 mandates
that every approved school shall be classified according to the discipline and training
required by children to be detained herein, The situation envisaged by section 29 and
30 respectively does not exist. In practice the JTC is run by the prisons department.
Furthermore the facility is available to boys only. The girls have a separate wing in the
Female prison where they are also supervised by prison personnel.”82
Conditions of detention are extremely poor, as noted by recent research, and overcrowding
besets the JTC.83 By the government’s own admission, the practice in this facility reveals
that:
“…Juvenile offenders are treated like prisoners, in that they are not offered
rehabilitation programmes. The Juvenile Training Centre in which they are detained
does not operate as a training and rehabilitation centre, but mainly as a prison or
detention centre.”84
The female prison does not have separate facilities for juveniles. Intermingling of juvenile
offenders with the adult female inmates is therefore inevitable.85 Alternatives to custodial
sentences for children are authorised under the Children’s Protection Act (1980) and the
Criminal Procedure and Evidence Act (1981).86 The range of options provided for include
suspended sentences, the discharge or release of a child on his or her or parents’
recognisance, probation orders and fines.87 It has been recorded that the increased use of
probation as a sentence for children from early to mid-1990s has occurred.88 It has therefore
been pointed out that Lesotho’s Probation Unit, which administers probation orders, “in its
effort to promote the use of non-custodial forms of sentencing, in line with the Beijing Rules,
has been greatly encouraged that magistrates are increasingly using non-custodial forms of
2003 Lesotho Law Reform Commission Issue Paper on the Administration of Juvenile Justice, p22,
copy on file with the author
83 2005 Problems facing children in Lesotho prisons: with special reference to the Juvenile Training
Centre Unpublished LLM dissertation, University of KwaZulu Natal, copy on file with the author
84Lesotho Initial Report Para 108
85Lesotho Initial Report Para 112
86 Lesotho Initial Report Para 228
87Lesotho Initial Report Para 228
88Lesotho Initial Report Para 229 (pointing out that ‘the Probation Unit which has been administering
supervision orders has reported a rise in the use of such orders. In 1992 the Unit handled 25 cases, in
1993, 210 cases and in the first half of 1994, 84 cases’)
82
24
sentence for juvenile offenders’. The vast majority of the cases were for minor offences.89
Despite the preceding statement, however, the view has been expressed that the current
legislation offers very few sentencing options.90
As Odongo spells out,91 the draft provisions of the new bill envisage that imprisonment shall
be limited to a maximum of 3 years where child offenders are concerned, provided that the
child was 14 years or older. The bill also provides more generally for residential sentences,
and for criteria directing when such sentences may be imposed.92 Residential sentences
include referral to programmes with a periodic residential requirement as well as referral to a
facility, which may include a prison. These include:
1. The seriousness of the offence must justify such a sentence
2. The protection of the community warrants such a sentence
3. The severity of the impact of the offence upon the victim was of such a magnitude as to
warrant such sentence
4. Where the child has failed to respond previously to non-residential alternatives
Substantial and compelling reasons must exist before a sentence of imprisonment can be
imposed, and the charge against the child must be of both a serious and a violent nature, or
the child must have failed to respond to previously imposed alternative sentences.93 In
addition to the above conditions, CPWB further provides that ‘no sentence of imprisonment
may be imposed on a child under the provisions in the [Act] for a period exceeding 15 years
on any charge’.94
The use of child-specific facilities (the Juvenile Training Centre and approved schools) as
options for residential sentences has been retained by the proposed law. However, the bill
provides that as a minimum, such sentences should be for a period of six months but must
89Lesotho
Initial Report Para 229
Lesotho Law Reform Commission Issue Paper on the Administration of Juvenile Justice,22,
note 82 above
91 Odongo (note 56 above), p395
92 Lesotho Children’s Protection and Welfare Bill, clause 162
93 Lesotho Children’s Protection and Welfare Bill, clause 164
94Lesotho Children’s Protection and Welfare Bill, clause 164 (9) (adding that ‘where a child is
sentenced to periods of imprisonment on more than one charge and the sentences cumulatively
amount to more than 15 years the sentences must be served concurrently’)
902003,
25
not exceed a period of two years in the maximum.95 It is submitted that overall, these
provisions are aimed at ensuring the realization of the principle of detention as a mater of
last resort (and for the shortest appropriate period of time).
In accordance with international law, the CPWB proposes a specific prohibition on the use of
corporal punishment by courts.96 As regards alternative sentences, the proposed Lesotho law
makes explicit provision in relation to a variety of alternative sentences.97 Both community
service and probation are competent sentences. (The CPWB, in section 158 (l), prohibits the
imposition of community service on a child under the age of thirteen years). In addition the
proposed provisions include options such as the imposition of novel orders such ‘positive
peer association orders’ and ‘family time orders’ as community-based sentences, in a
manner similar to the South African draft legislation. Explicit provision is made for restorative
justice sentences, namely referral to a family group conference, victim offender mediation or
other restorative justice process.98
Legal representation for children, via the appointment of a legal aid lawyer, is
comprehensively spelt out in part XV1 of the proposed legislation. In summary, it is submitted
that the new provisions pave the way for the development of a child rights compliant juvenile
justice system, and one which is both indigenous and appropriate to local conditions.
Identification of best practices
Commenting during the national Seminar for disseminating the Lesotho CPWB held on 25th –
26th August 2004, the author noted that the bill offers the opportunity for Lesotho to update
and modernize colonial laws and establish a framework based on today’s thinking about
child well-being. Remarks described how the bill has simplified, codified and centralized all
laws pertaining to the child into one statute for easy administration and for implementation
in a coherent way. In specific terms, it was suggested that the new law is:
95Lesotho
Bill, section 164 (1), (2)(adding that only where a child is below 16 years and such child
would have, due to the seriousness of the offence, been sentenced to prison would such a child be
subject to a residential sentence that lasts until the age of 18 years, as an alternative to
imprisonment. This provision echoes that of the South African Child Justice Bill 49 of 2002
96Clause 166(2) provides that ‘no sentence of corporal punishment or any form of punishment that is
cruel, inhumane and degrading may be imposed on a child’. Clause 166(1) of the proposed Bill
expressly confirms the prohibition of both the death penalty and life imprisonment for all children who
commit crimes whilst under the age of 18 years
97Lesotho Children’s Protection and Welfare Bill, Part XVII (Sentencing) which uses the term
‘sentences not involving a residential element’
98 Lesotho Children’s Protection and Welfare Bill, clause 160
26
1. Directive by explaining the roles and duties of children, parents, communities, chiefs,
financial institutions and employers.
2. Innovative, especially in that it is the first one to legislate for the two Optional Protocols to
the CRC on the Sale of Children and on child trafficking; making provisions for the regulation
of inter-country adoption though Lesotho has not yet ratified it; extensive protection of
inheritance rights of orphaned children; provision for police cautioning without trial, provision
for the establishment of Village Child Justice Committees; etc.
3. Sexually more progressive in making provisions with regard to prohibition on child
marriage and access to reproductive health information and protective devices.
4 Culturally very sensitive to local and indigenous norms, probably more so than any
comparable recent African statute by making it possible to use chiefs in primary child
protection as persons to be notified, use of district committees to assist in foster
placements, spelling out of relevant African values in explaining children’s responsibilities.
5. Child participation provisions including permitting children to have locus standi to
approach the children’s court in their own name.
6. Comprehensive in that tasks and roles of respective players are very carefully spelt out.
7. The vulnerability of specific groups of children is characteristic of the CPWB.
8. Extra-territorial issues for cross-border trafficking is to some extent addressed.
9. Relevance to children’s issues and by mentioning the need for adopted children to access
photographs, letters and other personal artefacts belonging to their natural parents.99
The attributes identified above can be supplemented by four main best practices features
which in the view of the author, distinguishes the child law reform process in Lesotho.
The first best practice concerns the deliberate targeting of the most vulnerable children in
the process of law reform. I Kimane describes her Committee’s approach as follows:
‘At the initial stages of the Project, several thematic groups were established to
deliberate on issues critical to the child law reform process. The groups were to
deliberate on issues of concern, identify areas where child protection and welfare
were lacking because there is no supporting legislation and recommend solutions as
deemed necessary. Members of the thematic groups were mainly professionals and
This information has been usefully recorded in The Lesotho Child Protection and Welfare Bill 2005:
why the delays in enacting the children’s law? Lesotho Children’s Protection and Welfare Bill (note 74
above), p17
99
27
service providers. Deliberations of these groups provided insight into how child
protection and welfare could be enhanced through legislation. They also assisted in
the identification of groups of children are considered to be most vulnerable and on
which the new law would need to pay special attention. The outcome of thematic
groups’ deliberations made an invaluable to the law review process.
The thematic groups were divided to deliberate over protection and welfare issues
pertaining to the following particularly vulnerable groups of children:

Children without parental care (e.g. abandoned, neglected and orphaned)

Children with disabilities

Child victims of violence and other forms of abuse and exploitation including the
sexually abused and child labourers

Children in institutions

Children infected and affected by HIV/AIDS

Children in conflict with the law.’100
This targeted approach, underpinned by hands on research in those sectors, has enabled the
development of a statute that ensures that the needs of the most vulnerable children are
met.
Second, the bill establishes its own monitoring mechanism, namely the proposed
Independent Children’s Commission. The mandate of the Commission will be to :
1. Monitor the general well-being of children as well as to promote and protect their rights.
2. Investigate national and individual issues pertaining to violations of children’s rights and
make appropriate referral systems following investigations.
3. Monitor national compliance with international and regional obligations.
4. Coordinate awareness-raising activities in regard to children’s rights.
The Commission as recommended in the CPWB should be small, independent, report directly
to Parliament and be empowered to solicit its own funding. The Commission will ensure that
the implementation of the CRC and other relevant instruments is well monitored, in
accordance with the Paris Principles.101
100The
Lesotho Child Protection and Welfare Bill 2005: why the delays in enacting the children’s law?
Kimane, I (note 74 above), p3
101 Ibid.
28
Third, the law reform process has been characterised by a high degree of public
participation, including children’s participation. Describing the consultation process generally
as the most inclusive ever undertaken by the Lesotho law reform commission, the
participation of children has been detailed thus:
‘From the beginning of the Project, child participation was seen as critical and was
emphasised throughout the process. To this end, a Junior Committee of the Child
Law Reform Project was formed. This Committee constituted a very important
structure in the Project. It organized its own activities to contribute to the process of
reviewing and reforming the national laws pertaining to children. It functioned in a
very important way to put the voices of children high on the agenda of the child law
reform process. The children on the Junior Committee got the opportunity to
participate in national initiatives such as the PRSP and attended other fora at the
international level.
The committee was very active and participated in a variety of ways including the
following:

They received child rights information and subsequently disseminated relevant
materials

They got the opportunity to participate in the Projects workshops, dialogues and
roundtable discussions

A story approach workshop was organized for them and they latter were able to write
a drama which was presented on the national radio station

They got the opportunity to attend regional and international for a

They held meetings of the Junior Committee and participated in the Projects’ end of
year review and planning meetings.’102
A third characteristic of the reform process relates to the study tours undertaken by the
members of the child law reform committee. Not only site visits to relevant organisations and
government projects in neighbouring South Africa were undertaken, but the Committee also
visited Ghana, and has itself served as a host to would-be law reformers from South Sudan.
That African countries can and should flag their best practice models for each other is a
102
Ibid.
29
suitable and appropriate way of engaging in child law development that harnesses the most
locally appropriate models for replication.
Fourth, the law reform process was an active learning opportunity. Dr Kimane describes this
aspect as follows:
“Capacity building activities varied to include workshops, dialogues and roundtable
discussions on topics/ issues pertinent to the process and study tours. For example,
workshops and roundtables were held on topics such as child rights, adoption and
foster care, orphaned and vulnerable children, investigation for child protection, use
of child-friendly language and procedures in the courtroom, need for linkages and
partnerships among child protection and welfare service providers, mechanisms for
monitoring the child rights situation, restorative justice and diversion, and the role of
intermediaries in court. ..Most of these topics were new ground for many of the
people involved in these fora. Hence it helped to inform people about what they
involve from the very initial stages.”103
Conclusions and recommendations
The central recommendation relates to the passing and promulgation of the 2004 CPWB, so
that the implementation mechanisms can begin to be established. The passage of the bill
will set a framework for the effective marshalling of available resources to address the needs
of children in Lesotho.
Further it should be noted that Lesotho’s Poverty Reduction Strategy (PRS) which was
developed with the aim of eliminating poverty and unemployment, recorded that one of the
major constraints is that there is no Government Department designated for children and
their issues. For this reason, children’s issues have for a long time been sidelined. No one
Government Department is mandated to look after children and issues relevant to them and
as a result they have not really found their way into the mainstream of the country’s
development agenda. The creation of a department to coordinate children’s issues
effectively was recommended as a strategy, in addition to building the capacity of the
Department of Social Welfare because it has a major contribution to make to the protection
103
Ibid.
30
and support of vulnerable children. However, it can be argued that the implementation of the
CPWB’s provisions relating to the Independent Children’s Commission will address some of
the co-ordination requirements that prevail when different Ministries and Departments bear
responsibility for the fulfilment of children’s needs.
31
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32
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33
Appendix: About the Author
Prof Julia Sloth-Nielsen is currently professor in the Law Faculty of the University of the
Western Cape. She was previously associate professor and co-ordinator of the Children’s
Rights Project at the Community Law Centre at that university, and during her seven years in
that position served on the South African Law Commission Project Committee on Juvenile
Justice, as well as the South African Law Commission Project Committee on the Review of
the Child Care Act, which culminated in the passage of the Children’s Act 38 of 2005. She
has consulted widely within Africa on child law reform for governments and international
agencies, and has published widely in the children’s rights field, both within South Africa and
internationally. She is on the editorial board of the International Journal on Children’s Rights,
teaches a LLM ‘Children’s rights in Africa’ module, and has supervised numerous
postgraduate theses in children’s rights-related areas. Her LLD thesis (awarded in 2001)
dealt with the influence of international law on South Africa’s juvenile justice reform process.
34