…as court invites civil society groups into constitutional showdown
Moorosi Tsiane
ACTIVIST Kananelo Boloetse’s fight to have the controversial Tenth Amendment to the Constitution declared unconstitutional has taken a new twist, with the Constitutional Court inviting civil society organisations representing groups likely to be affected by the outcome to join the legal battle.
The court this week postponed the matter to March 2027, directing interested organisations to come forward and participate in the proceedings.
The development could significantly widen the constitutional showdown, which centres on whether Parliament unlawfully amended the country’s supreme law without first putting the changes to a referendum.
The case also involves the Law Society of Lesotho, which is challenging the constitutionality of Sections 4 and 5 of the Tenth Amendment, arguing that the provisions required a referendum before they could be promulgated.
The matter is before a panel comprising Chief Justice Sakoane Sakoane and Justices ’Maliepollo Makhetha and Itumeleng Shale.
The court’s invitation followed concerns raised by Chief Justice Sakoane about whether civil society organisations representing people whose interests could be affected by the outcome should be given an opportunity to participate.
Both the Law Society, represented by its president, Advocate (Adv) Lintle Tuke, and Mr Boloetse, represented by Adv Fusi Sehapi, agreed with the suggestion. Government counsel, Adv Motiea Teele KC, also concurred.
Reading out the order, Justice Shale directed organised groups with a direct interest in the relief sought to file their papers within 30 days of publication of the court notice in print, electronic and audio media.
The applicants will then have 30 days to respond to the interested parties’ submissions, while the respondents will similarly be given 30 days to file their answers.
The court’s directive came as the Law Society announced that it was abandoning its challenge to Section 6 of the Tenth Amendment while maintaining its case against Sections 4 and 5.
Adv Tuke told the court that the society wanted the two provisions declared unconstitutional and struck down, but did not seek to invalidate the entire amendment.
She said the challenge was based on the failure to follow the constitutional procedures prescribed under Section 85 when the amendment was passed.
“We are abandoning the challenge on Section 6 while our argument remains that both Section 4 and 5 of the Tenth Amendment are unconstitutional. The basis of the challenge is the promulgation did not follow the prescripts of the Constitution as per Section 85 of the Constitution.
“The two sections should be struck down completely. The two sections in terms of content they are not bad but however the procedure followed was not correct,” Adv Tuke said.
She argued that the introduction of affirmative action provisions required Parliament to comply with the constitutional amendment procedures, including holding a referendum where constitutionally required.
“Section 85 is clear that if you are going to amend by introducing affirmative action, the prescripts of Section 85 have to be followed. It can either be by going to the referendum and in this case it was never done but the amending happened,” she said.
The two provisions targeted by the Law Society deal with affirmative action and access to justice.
Section 4 introduced Section 20A, which provides for affirmative action in favour of groups marginalised because of gender, age, disability or other historical or legal disadvantages.
Section 5 introduced Section 22A, which expands access to constitutional remedies by allowing individuals, groups, associations and persons acting in the public interest to approach the courts when constitutional rights are allegedly infringed or threatened.
The Law Society maintains that the objectives of the two provisions are not necessarily objectionable, but argues that the process through which they were introduced was unconstitutional.
It wants Sections 4 and 5 struck down while the remainder of the Tenth Amendment remains intact.
Mr Boloetse, however, is seeking a much broader remedy, arguing that the entire Tenth Amendment should be declared unconstitutional because it was enacted without a referendum.
He is joined in the application by civic organisation Advocates for the Supremacy of the Constitution.
In his affidavit, Mr Boloetse contends that Parliament bypassed Section 85(3) of the Constitution, which requires a referendum before amendments affecting entrenched provisions of Chapter II can be submitted to the King for assent.
He argues that the failure to hold a referendum denied him and other Basotho the opportunity to directly approve or reject constitutional changes affecting their fundamental rights and freedoms.
“The Tenth Amendment to the Constitution was already a corpse in law when it reached His Majesty’s table, incapable of being animated by royal assent.
“A bill altering entrenched provisions ‘shall not be submitted to the King for his assent’ unless first approved by referendum. Where such a bill is transmitted to the King without a referendum, it arrives not as a valid constitutional instrument, but as a constitutional stillbirth. Severing parts from a corpse does not bring it to life. Once the constitutional pipeline was breached, once a referendum was omitted, the entire process was fatally tainted,” Mr Boloetse argues.
He further maintains that Section 2 of the Constitution establishes it as the supreme law of Lesotho, rendering any law inconsistent with it null and void.
The activist also argues that the right to participate in government under Section 20 extends beyond voting in elections to include citizens’ participation in constitutional reforms affecting their fundamental rights.
The two applications therefore raise different questions about the legal consequences of the alleged failure to hold a referendum. While the Law Society wants only Sections 4 and 5 invalidated, Mr Boloetse argues that the alleged procedural defect renders the entire amendment unconstitutional.
The Tenth Amendment was among constitutional reform measures tabled in the National Assembly by Minister of Law and Justice Richard Ramoeletsi on 6 May 2024 before being referred to the Law and Public Safety Committee. It subsequently proceeded to the Senate around October 2024.
The amendment was eventually gazetted and published on 13 August 2025 following parliamentary passage and royal assent.
Its enactment sparked controversy, with political parties and civic organisations questioning the legality of the process and arguing that a referendum should have been held.
The government, however, presented the amendment as part of Lesotho’s progress in addressing its political and security challenges.
Prime Minister Sam Matekane presented the Act at the 45th Ordinary Summit of the Southern African Development Community (SADC) in Antananarivo, Madagascar, on 17 August 2025.
SADC commended Lesotho for the development, saying it had removed the country from the agenda of the Organ Troika following positive progress in its political and security situation.
The respondents in the constitutional challenges include His Majesty the King, Speaker of the National Assembly Tlohang Sekhamane, Senate President Mamonaheng Mokitimi, Mr Ramoeletsi, the National Assembly, the Senate and Attorney General Rapelang Motsieloa KC.
The matter is expected to resume in March 2027, by which time civil society organisations representing potentially affected groups may have joined the proceedings.
