…As court orders enactment of law banning public officials from doing business with the State
…Declares that MPs cannot use their voting powers to avoid a constitutional obligation
Moorosi Tsiane
IN a major victory for efforts to contain endemic corruption in Lesotho, the Constitutional Court (ConCourt) has delivered a landmark judgment that will see ministers and members of Parliament being banned from doing business with the State.
While its common practice in other democracies elsewhere, and it is even widely regarded as basic common sense to prohibit public officials from doing business with the State for obvious conflict of interest reasons, in Lesotho, public officials, including ministers and principal secretaries, award themselves State tenders and projects without any dint of shame or restraint.
The most egregious example was when Local Government, Home Affairs and Police Minister Lebona Lephema, acquired Mothae Mine, the diamond mining company, in which the Lesotho government owns a 30 percent stake, without a competitive bidding process. The acquisition meant Mr Lephema would effectively be doing business with the very government in which he is a key Cabinet member.
If for instance a rights issue was called at Mothae Mine for shareholders to recapitalize the business, it means the pro rata 30 percent of taxpayers funds would be lavished on Mr Lephema in lieu of any quantum of the rights issue. But as the state is generally inept at running its own businesses (successive governments of Lesotho have complained of not getting dividends from investee companies) such rights issues can be susceptible to manipulation with the result that taxpayers can end up financing the business, more than the pro rata share, for the benefit of the cabinet minister.
Which all explains why a deal like the Mothae one, in which a sitting minister is allowed to do business with the very government he is part of, would never have seen the light of day. Not only was Mr Lephema going to stop at Mothae, there were also reports that he was negotiating on acquiring another state-owned company, Loti Brick, while being a sitting minister.
In 2019, while serving as Small Business Development Minister in Thomas Thabane’s second coalition, Chalane Phori declared that it was a right for sitting ministers to benefit from government tenders. He sulked at having lost a tender himself.
24 months
Such brazen corruption might nonetheless become a thing of the past following the ConCourt ruling last week nullifying a parliamentary vote in which MPs had rejected a Private Members Bill banning them from doing business with the State.
The ConCourt ordered Parliament to enact legislation preventing MPs and other senior public officials from doing business with the government (conflict of interest legislation) within 24 months of the Thursday ruling.
The court declared unconstitutional the decision by MPs to reject the Conflict of Interest Bill, 2024, ruling that the National Assembly cannot use its voting powers to avoid fulfilling a constitutional obligation.
It also slapped Parliament with legal costs for opposing the application.
This decision will serve as a huge blow to MPs and ministers, who get elected on promises to serve the people, but are accused of immediately getting consumed with furthering their own nests once they enter office, allegedly often acquiring lucrative tenders without following due process.
Mojapela
The ruling follows a petition by Socialist Revolutionaries leader, Advocate Teboho Mojapela, who challenged Parliament’s refusal to enact a Private Member’s Bill seeking to bar MPs from doing business with the State. The case originated in December 2024 after Parliament had rejected the Conflict of Interest Bill on 1 November 2024 after it was introduced by Basotho Covenant Movement (BCM) leader, Dr Tšepo Lipholo, and seconded by Popular Front for Democracy (PFD) leader, Advocate Lekhetho Rakuoane. The proposed legislation sought to prohibit government officials, ministers, and legislators from engaging in business transactions with the state.
Only 33 MPs were present on the day of the vote with 19 voting against and 12 in favour, and two abstaining, meaning the Bill’s rejection.
Adv Mojapela, through his lawyer Adv Fusi Sehapi, then opted for court action seeking a nullification of the vote. Advocate Sehapi argued before Constitutional Court judges Moroke Mokhesi, Tšeliso Mokoko, and Sekake Malebanye (acting) on 4 February 2026 that MPs were acting out of greed by seeking to avoid a law that would bar them from transaction with the state in violation of Section 59 of the Constitution which seeks to ban conflict of interest situations by public officials.
In his court papers, Advocate Mojapela used Mr Lephema’s acquisition of Mothae Mine as an example of brazen conflict of interest and unfettered corruption resulting from lack of legislation prohibiting conflict of interest. He also cited claims that a company linked to Prime Minister Sam Matekane had been awarded contracts in Maseru City Council’s road rehabilitation programme. Adv Mojapela also cited Public Works and Transport Minister Matjato Moteane’s “former” company being involved in a lucrative tender for Moshoeshoe I International Airport.
According to Adv Mojapela, such conduct was “unethical and unconstitutional” and a betrayal of the fiduciary duties that elected officials owe the public. He asked the court to nullify the majority vote against the bill, arguing it was irrational and unconstitutional, and instead declare the minority vote as being the majority one.
Adv Mojapela further argued that when government officials do business with the state, “they undermine private sector competition and hinder economic development,” through abuse of power, pointing to China, Uganda, and Ethiopia as examples of countries that experienced growth after enforcing strict conflict-of-interest laws.
He also requested a mandamus (order for public servants to perform a duty) directing Parliament to enact legislation regulating conflict of interest within one year.
Adv Mojapela’s co-applicants were BCM and PFD.
The Speaker of the National Assembly, Tlohang Sekhamane, Leader of the House Nthomeng Majara, Prime Minister Matekane, Minister of Law and Constitutional Affairs Richard Ramoeletsi, and Attorney General Advocate Rapelang Motsieloa KC were cited as respondents.
Sekhamane
In opposition of the application, Mr Sekhamane challenged the court’s jurisdiction, arguing that the application was essentially a challenge to parliamentary procedures:
“The applicants are, in effect, challenging parliamentary procedure. However, Section 81(1) of the Constitution grants each House of Parliament the authority to regulate its own procedures and establish rules for orderly proceedings.
“Where Parliament has failed to follow proper legislative procedures, the court may review its decisions. In this case, all procedures were followed in accordance with the National Assembly Standing Orders, 2022. Therefore, the Honourable Court lacks jurisdiction to hear this matter.”
He also argued that parliamentary sovereignty gives MPs the ultimate authority over legislation.
“This court does not have the power to compel Parliament to pass a law or approve a private member’s bill. The doctrine of separation of powers requires the judiciary to respect Parliament’s independence and legislative authority.”
Mr Sekhamane rejected Adv Mojapela’s interpretation of Section 59, saying it did not categorically bar MPs from doing business with the government as he had alleged and sought to enforce.
“This is a misinterpretation of the section. Section 59 does not categorically prohibit government officials, ministers and MPs from trading with the government. It allows them to do so within the exceptions and limitations prescribed by Parliament.
“What the applicant is seeking is for this Honourable Court to compel another branch of government to perform its function. That amounts to a usurpation of the legislature’s powers. This court cannot and does not have the authority to order Parliament to pass the Conflict of Interest Bill.
“Moreover, passing the bill after its rejection would be contrary to Section 81(1) of the Constitution.”
Judge Mokhesi
The Constitutional Court disagreed. In a judgment written by Justice Mokhesi, with Justices Mokoko and Malebanye concurring, the court ruled that Parliament has a constitutional obligation under Section 59(1)(e) to enact conflict-of-interest legislation and gave it a directive to do so within 24 months. The court also set aside the majority vote rejecting the bill as unconstitutional.
“Where the Constitution places an obligation on Parliament to do something, it cannot vote to defeat the fulfilment of such an obligation, Justice Mokhesi said, in probably one of the most well-reasoned judgments in Lesotho’s judicial history.
“The present case is a clear example of a situation where the Constitution has placed an obligation on Parliament to enact the law, but the National Assembly instead used a voting mechanism to defeat it. That it (the National Assembly) cannot do.”
He also said MPs could debate the content of such legislation, but they could not refuse its enactment.
“Whilst members of Parliament are free to debate the structure and the content of such a Bill, they are, however, not free to scupper its enactment or to refuse to enact it, because to do so will be acting unconstitutionally.”
The court also ordered the respondents to pay Adv Mojapela and his co-applicants’ legal costs.
“There is no reason why costs should not follow the result in this matter nor has an argument been advanced for such an outcome by the respondents’ counsel.
“In the result the following order is made: the application succeeds with costs on the following terms — the government and/or coalition of ruling parties’ conduct of casting majority votes against the motion on the Bill paving the way for passing of Conflict of Interest legislation mandated by Section 59(1)(e) of the Constitution is reviewed and set aside as unconstitutional.
“Parliament is directed to promulgate legislation in terms of Section 59(1)(e) of the Constitution within 24 months of the delivery of this judgment.”