Staff Reporters
A local rights group, Equal Rights and Justice, along with activist and lawyer Lemohang Nsuzi, has taken legal action against the governments of Lesotho and South Africa, as well as prominent international organisations, including the United Nations (UN).
They have petitioned the High Court to compel the respondents to amend, or facilitate the amendment of, the Lesotho Highlands Water Project (LHWP) Treaty and its annexures.
The applicants argue that the Treaty should be revised to ensure that both Lesotho and South Africa commit to the principles of equitable and reasonable utilisation and sustainable development concerning the LHWP river system.
They further seek to have both governments bound by internationally recognised water governance frameworks, including: the Helsinki Rules (1966), the Berlin Rules (2004), the United Nations Convention on the Non-Navigational Uses of International Watercourses (1997), and the Revised Protocol on Shared Watercourse Systems in the Southern African Development Community (SADC) (2000).
Additionally, they call for harmonisation of the Treaty with Lesotho’s domestic legal framework.
Specifically, they argue that sections 5, 6, and 13 of the Lesotho Water Act should be reconciled with the LHWP Treaty, alongside alignment with the Lesotho Environment Act.
Alternatively, Equal Rights and Justice and Nsuzi seek a declaration that the LHWP Treaty is unconstitutional for fostering a discriminatory regime, which they argue is expressly prohibited under section 18 of Lesotho’s Constitution.
They also request a mandamus order compelling the respondents to harmonise the LHWP Treaty with the Orange-Senqu River Commission (ORASECOM) Agreement, since both agreements govern a common watercourse, albeit involving multiple countries.
This, they argue, aligns with Article 8 of the UN Convention on the Non-Navigational Uses of International Watercourses (1997), which emphasises cooperation among riparian states.
The case was formally filed in the High Court yesterday.
In his founding affidavit, Nsuzi, a Mafeteng-based activist and climate champion, outlined his involvement. He stated that while conducting research on “Hydro-colonisation of Lesotho,” he became engaged in the ongoing dispute between the Mafeteng community and the government of Lesotho over water rights.
“When the Mafeteng community requested my assistance in their struggle for the enforcement of water rights, it was a moment of serendipity,” Nsuzi said. “I provided all the in-kind support I could while continuing my research.”
He further explained that on January 13, 2025, he issued formal correspondence on behalf of Equal Rights and Justice to the 1st and 6th respondents, seeking negotiations over the grievances raised. The letter, he noted, was drafted in a conciliatory tone, allowing the respondents 21 days to respond.
Since that deadline has lapsed without a response, Nsuzi has urged the High Court to intervene. He specifically requests a declaration that Articles 5(1) and 18(9) of the Phase II Agreement of the LHWP Treaty violate Section 2 of Lesotho’s 1993 Constitution.
The Lesotho Highlands Water Project (LHWP) is a multi-phase initiative designed to supply water to South Africa’s Gauteng region while generating hydroelectric power for Lesotho. Established through a 1986 treaty between the two governments, the project involves the construction of a series of dams to harness water from the Senqu/Orange River.
Phase I was completed in 2003 and inaugurated in 2004, while Phase II is currently underway.
In his affidavit, Nsuzi further stated that, growing up, Lesotho was often referred to as the “Mountain Kingdom” with an abundance of water resources, believed to be vast and inexhaustible.
“Typically related to as mountain spring water (‘metsi a lihlaba),” he said
However, as he grew older, he realised that the widely held belief in Lesotho’s water wealth was becoming more questionable than celebrated.
He explained that different people had different expectations—some had anticipated tangible and practical economic growth, others had hoped that water and electricity bills would be minimal, and some even believed that Basotho would never have to pay for water or electricity at all.
“The truth is, even I began to get so daunted I became desperate for answers,” he said.
He cited a 2024 article by local journalist, Sechaba Mokhethi, supported by the Pulitzer Centre, which examined Lesotho’s situation following the implementation of the LHWP.
The article stated: “The droughts have reduced the water levels at Katse Dam, Africa’s second-largest dam, which powers the turbines at Muela Power Station. Mohale Dam, which feeds Katse Dam, has also experienced extended periods of low water levels. The results are severe: lack of drinking water and reduced hydropower generation capacity. Lesotho is thus struggling to meet its energy needs and the 1986 Treaty’s obligations to supply water to South Africa.”
He also referenced another article published by the Pulitzer Centre, which stated: “Lesotho and Zambia, two countries in southern Africa, are increasingly relying on hydropower to meet their growing energy demands. However, climate change is significantly impacting hydropower generation, as water levels in major dams have been declining with increasing temperatures.”
He acknowledged that even if he possessed the eloquence of the most skilled rhetorician, he could not have articulated the gravity of the situation as effectively as these Pulitzer Centre reports.
“The best I may do beyond the Pulitzer Centre reports, is to bring this Honourable Court to my confidence to bear the predominant predicament of the Mafeteng (fourth district of Lesotho in the order of the alphabet) people over serial water shortages.
“This has prevailed for over a decade; the situation has only deteriorated beyond tolerance, within the past twelve (12) months. Dams have run brittle dry; fisheries die like flies; hospital facilities have become human butcheries; and schools are confronted with profuse thirst, health and sanitary cataclysm.”
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