Moorosi Tsiane
SOCIALIST Revolution (SR) leader Advocate (Adv) Teboho Mojapela will have to wait until 5 June this year for the Constitutional Court to hear his case seeking to bar Members of Parliament (MPs) from engaging in public contracts with the government.
The matter has been allocated a panel of three judges: Justice ‘Maseforo Mahase as the presiding judge, alongside Justices Molefi Makara and Realeboha Mathaba. However, proceedings were deferred to June after it was announced on Tuesday morning that Justice Mahase was unavailable due to health issues.
Adv Mojapela petitioned the court in December last year following the MPs’ rejection of the Private Members’ Bill (Conflict of Interest Bill, 2024) on 1 November 2024. The bill sought to prohibit government officials, ministers, and legislators from conducting business with the government. The motion, introduced by Basotho Covenant Movement (BCM) MP Tšepo Lipholo and seconded by Popular Front for Democracy (PFD) leader Adv Lekhetho Rakuoane, failed to pass as 19 MPs voted against it, while only 12 supported it and two abstained.
Adv Mojapela argues that MPs are acting out of greed by benefiting from both legislative power and government contracts, thereby violating Section 59 of the Lesotho Constitution. He cites as examples the acquisition of Mothae Diamond Mine by Local Government Minister Lebona Lephema in July last year, as well as Prime Minister Sam Matekane allegedly awarding contracts to his own company for the rehabilitation of Maseru urban roads. Additionally, he highlights that Minister of Public Works and Transport, Matjato Moteane’s “former” company is part of a lucrative tender for revamping Moshoeshoe I International Airport—though Mr Moteane claims he no longer has ties to the company, a claim many question.
Adv Mojapela condemns these actions as unethical and unconstitutional, accusing MPs of betraying their fiduciary duties to the public. He is asking the court to review and nullify the ruling parties’ majority vote against the bill, arguing that it is irrational and unconstitutional.
The respondents in the case include Speaker of the National Assembly Tlohang Sekhamane, Leader of the House Nthomeng Majara, Prime Minister Sam Matekane, Minister of Law and Constitutional Affairs Richard Ramoeletsi, and Attorney General Adv Rapelang Motsieloa KC.
He further contends that when government officials, ministers, and MPs engage in business with the government, they threaten the private sector and hinder economic development. He points to countries like China, Uganda, and Ethiopia, which have experienced significant economic growth after implementing conflict-of-interest laws. He urges Lesotho to follow suit.
Adv Mojapela seeks the court’s declaration to declare the minority vote by the MPs as the majority call. This because the majority vote contradicted Section 59 of the Constitution.
However, Mr Sekhamane argues that the Constitutional Court lacks jurisdiction over the case, stating that Adv Mojapela and his co-applicants are challenging parliamentary procedures, which fall under Section 81(1) of the Constitution.
“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,” argues Mr Sekhamane.
He further asserts that the principle of parliamentary sovereignty is enshrined in Lesotho’s legal framework, meaning Parliament has the ultimate authority to pass or reject laws.
“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 also refutes Adv Mojapela’s interpretation of Section 59, arguing that while it disqualifies MPs from entering certain contracts with the government, Parliament has not explicitly prohibited such engagements.
“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 legislator’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.”