For three decades, Lesotho’s National Assembly has blithely neglected an important duty required by the constitution – to pass a law dealing with ‘conflicts of interest’ by MPs and senators in relation to government contracts. Now though, the country’s constitutional court has declared that this neglect amounts to disobeying the constitution, and the judges have set a deadline for such a law to be passed. The neglect has had serious consequences: the lack of a legal curb has added to the difficulties of prosecuting cases involving graft and unfair procurement practices by members of government, and has weakened public confidence in Lesotho’s political institutions.
*
Ever since Lesotho’s 1993 constitution took effect, many people, fed up with corruption, have been waiting for Parliament to do what they think the country’s supreme law – and good governance principles – require, namely, to pass legislation banning members of the senate and the national assembly from doing business with government.
As critics of government inaction read the text, the constitution required such a law, even though, more than 30 years later, nothing had been done to make this a reality. But a tough new judgment of the Constitutional Court has laid it on the line, setting a date by which Parliament must pass ‘conflict of interest’ legislation.
The case came to court because of the passion of Toboho Mojapelo, an advocate and leader of the Socialist Revolutionaries party. This is a man who is not afraid to call out corruption when he believes he sees it in his parliamentary colleagues. Just a few months ago, for example, he was briefly suspended from Parliament for calling the ‘Revolution for Prosperity’ party, now the biggest in Lesotho though it does not enjoy an outright majority, nothing more than a gathering of ‘corrupt vultures’.
After a private member’s Bill, the ‘Conflict of Interest Bill, 2024’, was introduced, then defeated, in Parliament, Mojapelo took action and approach the constitutional division of the High Court. The Bill, aimed at making it unlawful for MPs, ministers and government officials to do business with the government, would have clamped down on widespread corruption associated with procurement and government deals.
Courts can’t intervene, said Parliament
Mojapelo argued that what was at stake here was the failure by Parliament to pass legislation required by the constitution. The Speaker, the Prime Minister and other top officials, named as respondents in Mojapelo’s case, countered that the courts were not allowed to interfere in the way Parliament ran its business. They said the rules of Parliament had been followed exactly: the private member’s motion was proposed and seconded, then fully debated and defeated. That was the end of the matter, and there was no room for the court to become involved.
Not so, argued Mojapelo. His view was that the constitution required such legislation to be passed, and that in jettisoning the proposal, Parliament was in breach of the constitution.
Corruption rife, especially in procurement matters
Ongoing corruption in Lesotho is a matter of deep concern for citizens and outsiders, including funders and UN governance and human rights monitors. For many who live in Lesotho, the scandal over corruption involving government contracts is rapidly reaching breaking point.
The overwhelming majority of problems are in the area of procurement, according to the Directorate on Corruption and Economic Offences. Its report for 2016, for example, notes that more than 90% of the corruption cases dealt with that year were procurement-related.
But the existing corruption laws don’t directly prohibit MPs from becoming involved in government tenders or from contracting with government, even in large-scale procurement. And there’s no requirement that MPs should disclose their interest, not even when they are part of decisions about who will get tenders. According to local media reports, this means that MPs and even ministers who have their own companies may freely bid for state tenders and be awarded them.
Was Parliament’s inaction, unconstitutional?
Against this background, the refusal of the majority in Parliament to accept that a ‘conflict of interest’ law was necessary could hardly have been a surprise: MPs were simply protecting their ability to cash in on government work. For ordinary people though, it was all further proof that many who stood for public office did so to make money and that they would try by every means possible to defend that ‘right’.
When Mojapelo and two minority parties took the opportunity to challenge the right of the majority to refuse to consider such legislation, they also wanted to test whether government’s inaction in fact amounted to a breach of the constitution.
The three judges who heard the matter decided unanimously that it would not amount to infringement of the separation of powers for the court to consider the dispute, an objection to the case that had been raised by the government. It was true that Parliament could set its own rules, and that the court would ‘religiously respect’ Parliament’s ‘constitutional space’. However, the courts remained the guardian of the constitution, and the final arbiter of whether Parliament acted in accordance with the supreme law.
More at stake than Parliament’s internal rules – court
In this case, said the court, it was no good for Parliament to say that it had correctly handled the debate about the private member’s Bill: more was at stake than whether internal rules were followed in rejecting the proposed Bill.
The judges held that Parliament was wrong to claim it was constitutionally optional for a law to be passed regulating the disqualification of members of the National Assembly if they had an ‘interest’ in a government contract.
It wasn’t hard to see why the constitution intended to prevent anyone ‘ascending to high public office when they have commercial interests in government’, the judges said. Because of a natural inclination for self-preservation, anyone with commercial interests in government would seek to protect these ‘through unscrupulous means such as policy manipulation’. They might also develop a ‘contractual relationship’ with government at the same time as they sat in government’s driving seats. This would give such persons substantial political and executive power, and the possibility of abuse of office for personal gain then loomed large.
The court pointed out however, that the constitution didn’t absolutely or automatically disqualify someone from Parliament if they had an interest in a government contract: when it dealt with conflict of interest legislation, Parliament could decide whether to allow exceptions and limitations.
Parliament’s ‘profound misapprehension’
But believing that such a law was optional amounted to a ‘profound misapprehension’ by Parliament. MPs were not entitled to refuse to carry out their constitutional obligations – in this case, to pass a law regulating the disqualification of MPs and senators who had an interest in government contracts.
‘The right of Parliament to decide a question … cannot be used to defeat its obligation to do what the constitution has instructed it to do.’ And when Parliament acted unconstitutionally, the courts had the power to declare its conduct unconstitutional and direct that it should act properly.
The court thus awarded costs against the government, and ruled that its conduct in throwing out the Bill that would have allowed ‘conflict of interest’ legislation to be passed, was unconstitutional. Finally, it directed Parliament to promulgate such a law within two years.
Two footnotes
There are two footnotes to this important judgment.
The first is that it is still too early to know whether government will appeal. (In Lesotho the constitutional court is a specially constituted panel of high court judges, and not the apex court as in South Africa.) While an appeal would look extremely bad for government, the potential for poor optics didn’t deter Parliament from throwing out the private member’s Bill – nor from its delay of more than 30 years.
The second is that, in its decision, the court also issued a strong warning to advocates litigating in Lesotho to stop submitting ‘prolix’ founding affidavits such as were filed in this matter.
The court officially gave notice to counsel of tough action ahead: ‘in the not-too-distant future, appropriate sanctions will be meted out on counsel … responsible for preparing these affidavits and attaching irrelevant annexures’, the judges said.
* Written 15 March 2026