In a Valentine’s Day gift to the women of Lesotho, that country’s High Court has found it was illegal and invalid for the Lesotho Defence Force (LDF) to demand that women soldiers do not become pregnant during their first five years in uniform – on pain of dismissal.
The court’s decision, handed down on 14 February, concerned three women who became pregnant during the first few years after their initial training, thereby infringing special standing orders issued in 2014. All three were sacked but challenged their dismissal in court.
Three judges heard the application by the women – one sacked in March 2016 and two in December 2015 – at the end of last year. From the start of the judgment it was clear the judges were unimpressed by the position of the defence force and they moved with impressive efficiency to deal with the matter and deliver judgment within weeks.
Their decision is filled with references to international declarations on eliminating discrimination against women and for the need to push back against patriarchy. Here is their summing up of what the case is about, for example: ‘Although in form … about the legality of the decision of the … Lesotho Defence Force to discharge pregnant soldiers, it is in substance a challenge to the culture of patriarchy in the military and an assertion of sexual and reproductive rights in military service. What is being contested is the idea that female soldiers are incapable (of bearing) arms and babies at the same time and, on that account, are not fit for military purpose.’
The keen-eyed judges also noticed the back-story: the army’s standing order, on the basis of which the women were sacked, was not in force at the time they signed up. The first they would have heard of it was at their passing-out parade. This means they had no chance to reconsider their decision to sign up in the light of the restrictions on their reproductive and sexual rights announced that day.
In addition, the judges found that the law and the regulations governing the defence force obviously permitted women to serve in the army and, moreover, included provisions for maternity leave. No standing order could be valid that over-rode the law and its associated, legally promulgated regulations. The judges concluded that there could be no doubt that the standing order prohibiting women from becoming pregnant was unlawful.
It is an important judgment, not just for its satisfying judicial content, but because it shows the gross results of having such an anti-women standing order in place. This is something that becomes most obvious in the cringeworthy correspondence between army officials and the women concerned.
In the letter to the three women, army officials wrote that the standing order ‘prevented the pregnancy of female soldiers’ of the ‘category’ of the three, and yet ‘you fell pregnant in reckless disregard of the prohibitory orders’ despite the fact that ‘in Lesotho there are lawful means at your disposal which you were obliged to utilise in observance of the Order: such means include but are not limited to abstinence or contraceptives readily available … at numerous health centres’. But despite this ‘you had trembled and violated the order with impunity in disregard of the abundant availability of means used to prevent unplanned pregnancy’.
In the light of all the above, the defence force had formed the view that ‘you are not a fit and proper person’ to continue serving ‘lest your presence might render (the standing order) a toothless bulldog and a mockery. Basically, your presence might hamper detrimentally … the discipline of other female soldiers of your category within the defence force. That is, your pregnancy may be used by others as a “testing tool” …. As you know, military life is orderly life and a soldier who is not ready to obey lawful orders … is not fit to continue serving.’ Each woman was informed that her ‘unlicenced pregnancy’ detrimentally affected the defence force in that others had already copied her ‘prohibited behaviour’.
The replies of the three women were even more embarrassing to read, filled with groveling apology, begging for forgiveness and ‘another chance’ and, worst of all, giving personal details such as how they had been using contraception that had failed.
As if that were not enough, the army commander then reacted, changing his argument (this must certainly have been a man). Instead of berating the three for not using contraception, he complained that since no contraception was 100% certain, they should not have had sex in the first place.
Here is the reply sent to one of the women: ‘The usage of pills for contraceptives is not a reason persuasive enough, more especially when it is known that contraceptives are not 100% safe. So your act of having indulged (in) sexual activity with that knowledge informed the Command that you clearly undertook a risk which now you have to endure its unpalatable consequences. You were not barred from abstaining from such activity and respecting the standing order.’
The court found the order was inflexible. It was based on the presumption of ‘unfitness to serve’; it took away any discretion to place the pregnant soldiers in other departments; it ‘cultivates an environment of involuntary sexual abstinence, involuntary birth control, sterilisation and abortion’.; it violated the right to respect for private and family life.
The argument of the commander that soldiers ‘need permission to be pregnant – which permission is obtainable after five years’ service’ only needed to be mentioned ‘to be rejected’.
The judges also quoted from the defence force practice in other countries to back their conclusion that the LDF erred badly. Now the three are to be reinstated with no loss of benefits, and they were also awarded their legal costs.
Welcoming the judgment, Anneke Meerkotter of the Southern African Litigation Centre, which assisted with the case, said the Lesotho judges had set an important example for other courts in the region. They had shown ‘that the culture of patriarchy used to justify discriminatory practices against women cannot be sustained by the courts.’