. . . Section 2 group says a referendum should precede Royal Assent
. . . as opposition warns 10th Amendment Bill faces court challenge
Mohloai Mpesi/Moroke Sekoboto
THE long stalled national reforms process faces more hurdles as opposition parties and a civic group have vowed to challenge the Tenth Amendment to the Constitution.
This because the Speaker of the National Assembly, Tlohang Sekhamane, passed the Bill by simple majority while opposition parties argue that some sections, such as section 54(3) of the Constitution, required referendum.
The disputed section 54(3) speaks about the allocation of funds to Parliament whereby the Senate had amended the section to say Parliament should be accorded 3 percent of the national budget – an amendment which was scrapped by the National Assembly.
And now opposition parties and a local NGO, Section 2, have vowed to challenge the passage the endorsement of the Tenth Amendment by His Majesty.
Section 2 argues that the passage of the Tenth Amendment is unconstitutional, as Parliament had not yet dealt with section 54(3) of the Constitution which they argue required referendum.
They contend that when the two Houses of Parliament – the Senate and the National Assembly – disagree on certain clauses, the Bill should be referred to a referendum within a period of not less than two months but not more than six months, instead of being passed by a simple majority.
The opposition further asserts that the Bill was fast-tracked to enable Prime Minister Sam Matekane to present it at the coming Southern African Development Community (SADC) Summit.
SADC will convene its 45th Ordinary Summit of Heads of State and Government on 17 August 2025 at the Ivato Conference Centre in Antananarivo, Republic of Madagascar.
Politicians argue that if Mr Matekane presents the Bill to SADC before allowing it to undergo proper legal processes, there is a risk that a court challenge will potentially invalidate it and force the process to start from scratch.
Mr Matekane’s Press Attaché, Thapelo Mabote, told this publication: “If His Majesty has signed it, then the Prime Minister can present it. But if it has not been signed by His Majesty, then he cannot present it”.
The Bill was introduced from the Senate to the National Assembly by Minister of Law and Justice, Richard Ramoeletsi, earlier this month to consider the Senate amendments.
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”.
The Senate had amended Section 54(3) to read: “The budgetary allocation for Parliament shall be at 3 percent of the Annual Budget”.
The National Assembly rejected the Senate’s amendments and resolved to pass the Bill as originally drafted.
Advocates for the Supremacy of the Constitution (Section 2) have warned that submitting the Bill for Royal Assent without a referendum would constitute a clear violation of the Constitution.
Pressure group Section 2, which advocates for adherence to the Constitution, has called on His Majesty King Letsie III to exercise his constitutional prerogative under Section 78(4) to withhold assent until the Bill has been subjected to, and approved by, a national referendum in accordance with Section 85(3).
They further reminded Parliament, the Executive, and the public that changes to the fundamental rights chapter require direct approval from the people through a national vote.
This follows concerns raised by Basotho Action Party (BAP) leader Professor Nqosa Mahao in the National Assembly, who said the Bill needs to be referred to a referendum as it failed to secure a two-thirds majority in both Houses.
Speaker’s position
Speaker of the National Assembly, Tlohang Sekhamane, ruled earlier this week that, after receiving multiple legal opinions, including from Attorney General Advocate Rapelang Motsieloa KC, and conducting consultations, passing the Bill as it stands is correct.
“This issue raised by Professor Mahao is taking on more complicated tones. Just a few minutes ago, I received an additional legal opinion, while yesterday I received another legal opinion. I studied them and developed the confidence necessary,” Mr Sekhamane said.
“I sought advice from the Attorney-General because I wanted things to be done lawfully so that no one can challenge it and end up defeating us.
“My intention is that we should avoid making mistakes where we have a chance of avoiding them. When we look deeply into the matter, we find that there is no fundamental difference.
“There is no mistake when we pass these amendments from the Senate the way we did with others. I did not formulate my view based on one opinion. I consulted many experts.
“I looked at this matter with all honesty. I listened to very educated people in law. If it goes to court, it will help us to be clearer so that the judge will point out where the mistake has been done.”
This publication contacted Adv Motsieloa KC to understand whether His Majesty has signed the Bill.
Adv Motsieloa KC said: “I do not know whether he has signed it. When His Majesty has signified assent, we will see by a publication of Law.”
Asked to furnish a written legal opinion, Adv Motsieloa KC responded: “Like you put it, sir, the opinion was meant for the National Assembly. My opinions are not shared with anyone apart from those for whom they are authored.”
Section 2
Advocates for the Supremacy of the Constitution, Section 2, say the passing of the Bill directly to Royal Assent bypasses a mandatory constitutional step of holding a referendum.
“Section 2 believes that by inserting the new Sections 20A and 22A into Chapter II, Parliament has triggered the constitutional requirement for a referendum. However, at present, there has been no public indication that the referendum process required by the Constitution will be undertaken. All signs suggest that the Bill may proceed directly to the King for assent, bypassing this mandatory constitutional step.
“Section 2, therefore, calls on all constitutional actors to ensure full compliance with Section 85(3) before the Bill is transmitted to His Majesty the King.”
They further warned that submitting the Bill for assent without a referendum would constitute a clear violation of the Constitution and undermine the supremacy of the supreme law as enshrined in Section 2.
“Section 2 further calls upon His Majesty to exercise his constitutional prerogative under Section 78(4) to withhold assent to the Bill until it has been subjected to, and approved by, a national referendum in accordance with Section 85(3). They remind Parliament, the Executive, and the public that changes to the fundamental rights chapter require direct approval from the people through a national vote.”
Opposition speaks out
Mofomobe
Basotho National Party (BNP) leader, Machesetsa Mofomobe, told this publication that if the two Houses disagree on the two-thirds clauses, it has to be referred to a referendum between two and six months, and only then can it pass for Royal Assent by His Majesty.
He said it would be a violation of the law if the Bill is taken for Royal Assent as it is and that it is exposed to legal litigations.
“These amendments were inserted by the Senate, but the National Assembly rejected them. This says the Bill has to be prepared for a referendum. A referendum is an election,” Mr Mofomobe said.
“It would be a breach of law if it is taken to Royal Assent as it is, and if anyone challenges it in the courts of law, he or she will win. To save that work, it is important that the Bill goes to a referendum.
“We have to get things right all the time. As much as we want the reforms, we should do that through the right ways. The Speaker has always been making wrong decisions because his work is to protect the government . . . Not all that glitters is gold.
“The intention, yes, is for the Prime Minister to present the Tenth Amendment before SADC, but I think I will have to write to SADC so they know that what the Prime Minister is bringing would only be symbolic because it has problems.”
Mahao
For his part, Prof Mahao said the Bill does not have to receive Royal Assent in its current form. He said Clause 54 is entrenched and requires a two-thirds majority in both the National Assembly and Senate.
“Since the Senate passed their amendments and the National Assembly did the same, it means that the two houses are not in agreement. Now, before it can be passed for Royal Assent, it must be taken to a referendum.
“I am afraid an unconstitutionality is going to be committed here. It will be thrown out by the courts, and we will have to start from the beginning, especially when we tried to advise.
“The best way is to amend the Senate amendment and use Standing Order 64, which I believe allows us to return the Bill to the Senate, then negotiate until we reach the two-thirds majority. It could have been done this week so that when the Prime Minister goes to the SADC Summit, he goes carrying a Bill that passed lawfully. But they betrayed him (ba mo raisitse tjoto) because this one needs a referendum. He will go there carrying a law that will be thrown out by the courts of law.”
Mokhothu
Democratic Congress (DC) leader, Mathibeli Mokhothu, said Mr Sekhamane has erred. He said there was an agreement that the clauses should be segregated to allow passage by a simple majority, but the government made changes.
“The Speaker is making a mistake. There are a number of clauses, like Section 54. The Senate made an amendment of 3 percent, and the National Assembly rejected it. The section is entrenched, and where the two Houses do not agree, it is subject to a referendum. The mistake is that the National Assembly, when we resolved to segregate these clauses for simple majority, somehow allowed two-thirds clauses in the Tenth Amendment. They have caused a big problem.
“The easiest way is to prorogue the House to kill the Bill, so that it can be resurrected with the clauses separated. Once His Majesty signs it, some people will challenge it, but if he does not sign it, it will just stay there. At the end of the day, we need prorogation to kill all that work and resurrect it as divided work into simple majority clauses and entrenched clauses, packaged together as the Eleventh Amendment. Otherwise, the courts are going to throw it away on the basis that we have to go for a referendum.”
