. . . says it amended constitution “illegally”
Moorosi Tsiane
The Law Society of Lesotho (LSL) has hauled Parliament before the Constitutional Court after accusing it of illegally amending the country’s supreme law.
At the heart of the unprecedented legal storm is the 10th Amendment to the Constitution Act, 2025, which the Law Society claims was passed without following mandatory constitutional procedures, including securing a two-thirds majority in the National Assembly or holding a national referendum as mandated for specific changes.
The 10th Amendment was gazetted and published on 13 August 2025.
The Law Society is challenging Sections 4, 5, and 6 of the amendment, arguing that they tamper with core constitutional protections, including fundamental human rights, and the legal framework governing Parliament’s independence and structure. They required super majorities for passage.
It has thus asked the Constitutional Court to declare the 10th Amendment unconstitutional, null and void. The move is certain to further dart the long delayed national reforms process. Prime Minister Sam Matekane had used the passage of the 10th Amendment, at the recent SADC summit in Madagascar, as a showcase that Lesotho was making progress in implementing the reforms process. He had thus managed to get the country delisted from the regional body’s agenda of trouble spots requiring its attention much to the chagrin and disappointment of government opponents.
According to the new amendment the contested Section 4 introduces a new clause immediately after Section 20 of the Constitution, providing for affirmative action:
“Notwithstanding anything in this Constitution, the State shall take affirmative action in favour of groups marginalised on the basis of gender, age, disability or any other reason created by history or law, for the purpose of redressing imbalances which exist against them.”
Section 5 expands the scope of who may approach the courts in cases involving rights violations, while Section 6 amends Section 54 to declare Parliament autonomous and independent, with its budget determined by a formula set out in legislation.
In a strongly worded affidavit, Law Society President, Advocate (Adv) Lintle Tuke, contends that because these sections alter entrenched parts of the Constitution, they required a two-thirds majority in the National Assembly to get passed.
Failing that, Adv Tuke argues, the amendments should have been subjected to a national referendum in accordance with Section 85 of the Constitution.
“What ought to have happened was for the said changes to be authorised by a two-thirds majority in the National Assembly, failing which a referendum would be necessary,” Adv Tuke submits.
Instead, he says, the 10 Amendment was pushed through without meeting either requirement and was subsequently submitted to His Majesty the King for royal assent — a move the Law Society insists was procedurally flawed.
Adv Tuke acknowledges that the Law Society has always supported Lesotho’s ongoing national reforms process aimed at building lasting peace and constitutional stability. However, he stresses that due process must be followed, especially when core constitutional safeguards are at stake.
“The Law Society of Lesotho has at all material times been aware of the national reforms process, a journey the Basotho nation is currently travelling with an aim to achieving lasting peace through necessary constitutional amendments. Pursuant to the said reforms process, the Speaker and the Senate president worked on the legislative process leading towards the submission of the Tenth Amendment to the Constitution Bill to His Majesty the King for royal assent.
“The said royal assent was granted and the Bill was gazetted as the Tenth Amendment to the Constitution Act, No.2 of 2025 on the 13 August 2025,” Adv Tuke states.
“But the net effect of this Act is to amend, alter and/or expand entrenched clauses of Sections 20, 22, and 54 of the 1993 Constitution.”
Adv Tuke further argues that “Section 4 introduces new provisions on affirmative action that significantly alter Section 20; Section 5 amends Section 22 by expanding access to the courts and introducing public interest litigation; Section 6 changes the constitutional understanding of Parliament’s establishment and financial independence.”
He insists that since the necessary two-thirds majority was never achieved in Parliament, the Bill should never have been escalated for royal assent, and any steps taken under these sections should now be declared unconstitutional and invalid.
“In the present dispute, the said impugned Sections never received the required majority in the National Assembly. A referendum was therefore necessary but was not held. Submitting the Bill for royal assent without fulfilling these requirements was a clear error of law,” he said.
Adv Tuke is now calling for the Constitutional Court to declare Sections 4, 5, and 6 of the Tenth Amendment to the Constitution Act, 2025 null and void ab initio (from the onset), confirm that the amendment violates Section 85 of the Constitution and set aside all acts taken under the disputed provisions.
“This Honourable Court is called upon to strike down Sections 4, 5 and 6 . . . for being unconstitutional, for failing to attain a two-thirds majority in Parliament, and for bypassing the referendum process,” Adv Tuke concludes.
The Parliament is yet to react to the application.
The 10th Amendment Bill seeks to address some of the key reforms aimed at ending Lesotho’s long-running problems of political and security instability.
When it sailed through Parliament mid-August ahead of the 45th Ordinary Summit of Heads of State and Government on 17 August 2025 in Madagascar, opposition parties and civic group Section 2 warned that a legal minefield lay ahead because the Speaker erred in allowing it to pass by a simple majority.
They insisted some sections of the 10 Amendment should have been passed through a national referendum.
Section 54(3) requires a two thirds majority to be passed and since the Senate and National Assembly did not agree on the section, they argue a referendum was necessary.
Section 54(3) reads: “The budgetary allocation for Parliament shall be done through a percentage or a model to be determined by an Act of Parliament”; whereas the Senate had amended Section 54(3) to read: “The budgetary allocation for Parliament shall be at 3 percent of the Annual Budget”.
Opposition politicians had warned that if Prime Minister Matekane presented the Bill to SADC before allowing it to undergo proper legal processes, there was a risk that a court challenge would potentially invalidate it and force the process to start from scratch.
