In a landmark constitutional judgment delivered yesterday, the High Court has delivered a stinging rebuke to the National Assembly, declaring that Parliament’s rejection of a private member’s bill on conflict of interest was unconstitutional and ordering legislators to enact the long-delayed law within 24 months.
The three-judge bench comprising justices Moroke Mokhesi, Tšeliso Mokoko, and Acting Justice Tsebang Putsoane found that by voting down the Conflict of Interest Bill, 2024, the National Assembly had unlawfully thwarted a clear constitutional obligation that has remained unfulfilled since the Constitution came into force in 1993.
“The use of the words ‘may be’ in the sub-section are located in the context in which the Constitution sets out the factors which disqualify the would-be Senators or Members of the National Assembly,” the court stated in a powerful passage of the judgment.
“It is not difficult to fathom why the Constitution would set its face against anyone ascending to such high public offices when they have commercial interests in government: owing to human natural inclination for self-preservation, anyone who has a commercial interest in government would seek to unjustly protect them through unscrupulous means such as policy manipulation or other means.”
The application was brought by Teboho Mojapela, leader of Socialist Revolutionaries (SR), together with the Basotho Covenant Movement (BCM) and the Popular Front for Democracy (PFD) – all political parties with representation in the National Assembly. They sought to review the House’s decision to reject the bill, which was introduced by BCM leader, Dr Tšepo Lipholo, under Section 59(1)(e) of the Constitution.
The respondents – including the Speaker of the National Assembly, Tlohang Sekhamane, the Leader of the House Deputy Prime Minister Nthomeng Majara, Prime Minister Ntsokoane Matekane, and the Minister of Law and Constitutional Affairs, Richard Ramoeletsi – raised a preliminary objection arguing that the court lacked jurisdiction.
They contended that Parliament had followed its procedures and that the principle of parliamentary sovereignty precluded judicial interference.
But the court was unequivocal in dismissing this argument, drawing extensively from comparative jurisprudence. Quoting the South African Constitutional Court case of Doctors for Life International v Speaker of National Assembly and Others, the judges emphasised: “When it exercises its legislative authority, Parliament ‘must act in accordance with, and within the limits of, the Constitution’, and the supremacy of the Constitution requires that ‘the obligations imposed by it must be fulfilled.’ Courts are required by the Constitution ‘to ensure that all branches of government act within the law’ and fulfill their constitutional obligations.”
The interpretative crux: ‘May’ versus ‘Must’
At the heart of the dispute lay the interpretation of the word “may” in Section 59(1)(e), which disqualifies from Parliament any person who “subject to such exceptions and limitations as may be prescribed by Parliament, has any such interest in any such government contract as may be so prescribed.”
The Speaker’s office argued that the permissive language gave Parliament a discretion whether to enact such legislation or not. The court rejected this construction emphatically.
Citing the 19th-century English House of Lords case Julius v The Lord Bishop of Oxford, the court noted that “there may be something in the nature of the thing empowered to be done, something in the object for which it is done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty.”
Applying this principle, the court concluded: “Was Parliament obligated by the constitution to enact this disqualifying factor into law? The answer to this question should be in the affirmative.”
‘A profound misapprehension’
Perhaps the most damning section of the judgment concerns the Speaker’s understanding of parliamentary power. The court described the respondents’ averments as “symptomatic of a profound misapprehension under which Parliament operated on the day they jettisoned the motion in question.”
The judgment continued with devastating clarity: “The misapprehension is that Parliament can refuse to do what it is obligated to do by the Constitution. Put differently, and in a form of a question, having concluded above that in terms of Section 59(1)(e) Parliament was obligated to enact the law regulating disqualification of persons from being elected as members of Parliament or being nominated or designated as Senators when they have interest in government contracts, can Parliament legally vote not to comply with this constitutional obligation? The answer should be in the negative.”
The court grappled directly with Section 75(1) of the Constitution, which provides that questions in Parliament shall be determined by majority vote.
However, it imposed a crucial limitation: “The right of Parliament to decide a question put before it cannot be used to defeat its obligation to do what the Constitution has instructed it to do. To construe the power of Parliament to decide by majority vote on any question put will lead to a situation such as the present where the National Assembly voted to disobey the Constitution.”
In a passage that will resonate through future parliamentary proceedings, the court declared: “It 9Parliament) does not have a right to vote to disobey the Constitution but rather it has a right to decide the issue which constitutionally falls within its purview.”
A 32-year legislative vacuum
The judgment highlighted the extraordinary delay in giving effect to this constitutional provision. “Since the advent of this Constitution in 1993, the disqualifying factor under Section 59(1)(e) has not been effective. The reason for this is that all the successive Parliaments since 1993 have not enacted it into law.”
For 32 years, Lesotho has operated without legislation preventing parliamentarians with government contract interests from sitting in the House – precisely the situation the Constitution sought to prevent.
Judicial scolding on affidavit practice
In a unusual aside, the court took aim at the quality of the applicants’ founding papers, expressing judicial frustration at “prolixity in affidavits.”
The judges noted with irritation: “A lot of argumentative material made its way into the founding affidavit, for example an argument about members of parliament violating their oath under Section 71 of the Constitution. The founding affidavit is also replete with examples of irrelevant materials being included in it such as quoting the Bible and tabulating the names of the members of the National Assembly who voted against the Bill.”
Citing South African appellate authority, the court warned: “Prolixity in affidavit is quite an endemic problem in this court and should be nipped in the bud. Counsel are therefore warned that in the not-too-distant future, appropriate sanctions will be meted out on counsel who are responsible for preparing these affidavits and attaching irrelevant annexures.”
The order
The court granted the application with costs, issuing a two-part order of significant constitutional importance.
First, it reviewed and set aside as unconstitutional “the Government and/or coalition of ruling parties’ conduct of casting majority votes against motion on the Bill paving way for passing of ‘Conflict of Interest’ legislation mandated by Section 59(1)(e) of the Constitution.”
Second, it directed “Parliament to promulgate legislation in terms of Section 59(1)(e) of the Constitution within 24 months of the delivery of this judgment.”
The judgment was delivered on Thursday, 05 March 2026, with Mokhesi J and Putsoane AJ concurring. The ball now lies in Parliament’s court, with a 24-month deadline to do what 32 years of successive parliaments have failed to accomplish.
Summary
- “The use of the words ‘may be’ in the sub-section are located in the context in which the Constitution sets out the factors which disqualify the would-be Senators or Members of the National Assembly,” the court stated in a powerful passage of the judgment.
- At the heart of the dispute lay the interpretation of the word “may” in Section 59(1)(e), which disqualifies from Parliament any person who “subject to such exceptions and limitations as may be prescribed by Parliament, has any such interest in any such government contract as may be so prescribed.
- Citing the 19th-century English House of Lords case Julius v The Lord Bishop of Oxford, the court noted that “there may be something in the nature of the thing empowered to be done, something in the object for which it is done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty.
Authored by our expert team of writers and editors, with thorough research.
