SECTION 2 gives Rapapa seven-day ultimatum
Moorosi Tsiane
THE Advocates for the Supremacy of the Constitution (SECTION 2) has given Education and Training Minister Ntoi Rapapa seven days to direct schools to allow learners whose school and examination fees have not been paid to sit for their final examinations.
Through its lawyer, Fusi Sehapi, the organisation has warned that if Prof Rapapa fails to respond, it will approach the Constitutional Court for an order delaying the final examinations until its challenge to the exclusion of learners with outstanding fees has been determined.
The ultimatum is contained in a follow-up letter served on Prof Rapapa, the Examinations Council of Lesotho (ECoL) and public schools on 16 September 2026. It follows an earlier letter of demand, dated 26 August 2026, in which SECTION 2 challenged what it termed the government’s purported exclusion of learners whose parents cannot afford school and examination fees.
“Reference is made to our letter of legal demand dated 26 August 2026, which was never responded to via a letter and/or an overt act of issuing a circular directing all government schools to indiscriminately and equally allow all learners to write their final examinations,” Adv Sehapi wrote.
“The government’s purported exclusion in all High Schools of learners whose parents cannot afford to pay for the school fees and examination fees is unconstitutional. It violates the government’s mandatory duty to be guided by the principle to make education progressively available and accessible to all by every appropriate means.”
Restating his client’s case, Adv Sehapi wrote: “To refresh your mind, humbly, client’s case is not complicated. It is that the government’s duty in sections 25 read with section 28 of the Constitution to be guided by the Directive Principles of State Policy (DPSP) is binding on the government.
“That this duty includes positive duty to progressively realise education for all using legislation i.e. Education Act, 2010 and other ‘appropriate measures’.”
SECTION 2 argues that barring such learners from attending school or sitting examinations violates constitutional provisions on access to education, equality and non-discrimination.
In the August letter, Adv Sehapi argued that public authorities, including the courts, Parliament and government ministries, were bound to be guided by the Directive Principles of State Policy set out in Chapter III of the Constitution. He cited sections 25 and 28 of the Constitution, read with section 3(c) of the Education Act of 2010, which he said require the state to progressively make education available and accessible to all through appropriate means.
The organisation maintains that while primary education is compulsory and must be available to all, secondary and high school education must be made generally available and accessible through every appropriate means, including the progressive introduction of free education. Higher and tertiary education, it argues, should be made equally accessible on the basis of capacity, also through the progressive introduction of free education.
Against that constitutional background, Adv Sehapi argued that barring learners from writing examinations over unpaid fees amounted to a failure by the government to progressively realise the right to education. Recovering the money from parents or guardians, he said, was open to the government without keeping children out of classrooms and examination halls.
“The exclusion of learners from writing the examinations on the basis of non-payment of school fees is not calculated at progressively realising education and is not an appropriate and effective means,” he wrote.
“On the contrary, one of the ‘every appropriate means’ that is constitutionally compliant is to allow learners to attend school and write their examinations while still pursuing parents or guardians for school fees.
“That ‘appropriate measures’ that are constitutionally compliant for being less right intruding necessarily include to allow learners whose parents cannot afford to pay for final examinations to sit and write their final examinations, then hold their results while pursuing their parents to pay.”
SECTION 2 has accordingly called on the Ministry of Education and Training to issue a directive instructing all high schools to allow learners to attend classes and write their final examinations regardless of whether their fees have been settled.
“As a result client appeals to Ministry of Education to issue a directive within seven (7) days calling upon all high schools to allow learners to attend and write their final examinations,” the August letter reads.
“Otherwise a Constitutional case founded on right to education for all shall be filed in the Constitutional Court seeking inter alia that all the final examinations be delayed until the matter concerning whether the unpaid learners should or should not sit for their examinations is finalised.”
Prof Rapapa had not responded to the letter at the time of going to press.
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