…says ruling raises constitutional concerns over transparency and public participation
Hopolang Mokhopi
HUMAN rights advocacy group Section 2 is not backing down in its quest to have the 2023 electricity tariff hike set aside.
The organisation, formally known as the Advocates for the Supremacy of the Constitution, has announced its intention to appeal a High Court judgment that dismissed its challenge against the implementation of electricity tariff increases approved by the Lesotho Electricity and Water Authority (LEWA).
The organisation says it will take the matter to the Court of Appeal to seek clarity on what it describes as important constitutional questions relating to access to information, transparency and public participation in decision-making processes.
In a statement issued this week following the judgment of Justice Polo Banyane, Section 2 said the appeal was necessary to secure a final determination on issues it believes have significant implications for constitutional governance.
“While we await the full written judgment, SECTION 2 has resolved, as a matter of principle, to appeal the decision in order to obtain finality on the important constitutional questions raised by this case,” the organisation said.
The case arose from a challenge by Section 2 against LEWA’s approval of the Lesotho Electricity Company’s (LEC) multi-year tariff application covering the period from 2023 to 2026.
Section 2 had argued that LEC failed to submit its audited financial statements for the year ending 31 March 2023 within the six-month period required under the Companies Act of 2011. According to the organisation, the absence of those audited statements deprived stakeholders of critical information needed to participate meaningfully in consultations on the tariff application.
Justice Banyane, however, dismissed the application, finding that the absence of the audited statements did not prevent stakeholder participation and that the matter had effectively become academic because the tariffs had already been implemented.
In her judgment, Justice Banyane noted that the applicants sought several remedies, including the suspension of the new tariffs and a review of LEWA’s decision.
“An order directing the respondents to refrain from implementing the new tariffs pending finalisation of the case. An order reviewing and setting aside the decision to approve the increased tariffs. An order compelling LEC to submit its latest audited financial statement for the financial year ending 31st March 2023,” Justice Banyane said while outlining the relief sought by Section 2.
She further cited the applicants’ request for:
“An order mandating proper consultation with the public and stakeholders, ensuring openness, transparency, and accountability. An order upholding consumer rights, including the right to be heard and to participate in decisions affecting their interests.”
The judge explained that the tariff increases formed part of a multi-year application approved for implementation from April 2024.
“A decision application for upward investment of electricity tariffs for the multi-year period 2023, 2024, 2025 and to 2026,” Justice Banyane stated while describing the subject of the dispute.
Section 2 maintains that the judgment raises serious constitutional concerns.
“Lesotho is a sovereign democratic kingdom founded upon the Constitution, which, under Section 2, is the supreme law of the land. Section 20 guarantees every citizen the right to participate in the conduct of public affairs, while Section 14 guarantees freedom of expression, including the freedom to receive information and ideas without interference,” the organisation said.
The group argued that citizens cannot meaningfully contribute to consultations affecting electricity prices without access to verified financial information.
“In our view, a decision that permits critical financial information to be withheld from the public during consultations on matters as significant as electricity tariffs raises serious concerns about the practical enjoyment of these constitutional rights,” Section 2 said.
It added:
“Public participation cannot be meaningful if citizens are expected to comment on proposals that directly affect their lives without access to the verified information necessary to make informed contributions.”
According to court papers, LEC opposed the application, arguing that the tariff adjustments were necessary to sustain operations amid rising costs of electricity imports and declining local generation from the Muela Hydropower Station.
The utility stated that it purchases electricity from South Africa’s Eskom and Mozambique’s EDM to supplement domestic generation and that increasing operational costs required tariff adjustments to ensure reliable electricity supply and the replacement of ageing infrastructure.
LEWA also defended the tariff approval process, saying it had complied with all applicable regulations. The authority told the court that LEC had submitted audited financial statements for 2022 as well as management accounts up to September 2023, which provided sufficient financial information for the tariff review.
The regulator further argued that public consultations were extensively advertised through newspapers, radio and television and that stakeholder meetings were conducted across the country.
According to LEWA, Section 2 attended a stakeholder consultation meeting on 2 February 2024 and raised concerns about the age of the audited financial statements. However, the authority said the organisation did not submit further comments during the consultation period, which remained open until 13 February 2024.
Despite the High Court’s dismissal of its application, Section 2 insists the matter has broader implications for democratic accountability and constitutional governance.
“Democracy requires more than the appearance of consultation. It requires transparency sufficient to enable the public to understand, interrogate, and express informed views on decisions that affect them,” the organisation said.
It warned that:
“If left unchallenged, this judgment risks creating a precedent that allows public institutions to limit transparency through technical interpretations that diminish the effectiveness of public participation.”
Section 2 said it would now seek intervention from the Court of Appeal.
“Accordingly, SECTION 2 intends to take this matter before the Court of Appeal in defence of constitutional supremacy, transparent governance, and the right of Basotho to be adequately informed when called upon to participate in public decision-making processes,” the statement concluded.
The appeal is expected to test the extent to which constitutional rights to information and public participation should influence regulatory processes involving essential public services and could have far-reaching implications for future tariff reviews in Lesotho.
