Lesotho's Constitutional Court Expands Tenth Amendment Case

The Constitutional Court of Lesotho has invited civil society organisations to participate in a case challenging the constitutionality of the Tenth Amendment. The amendment, which was passed without a referendum, has sparked controversy in the country. The court's decision to invite interested parties follows concerns raised by Chief Justice Sakoane Sakoane about the potential impact on groups whose interests may be affected by the outcome. The case will now be postponed to March 2027.

The Tenth Amendment was tabled in the National Assembly by Minister of Law and Justice Richard Ramoeletsi on May 6, 2024. It was subsequently referred to the Law and Public Safety Committee and later passed by the Senate around October 2024. The amendment was gazetted and published on August 13, 2025, following parliamentary passage and royal assent. However, its enactment sparked controversy, with many questioning the legality of the process and arguing that a referendum should have been held.

The case involves activist Kananelo Boloetse, who is challenging the entire Tenth Amendment, arguing that it was enacted without a referendum. Boloetse is represented by Advocate Fusi Sehapi, while the Law Society of Lesotho, represented by its president, Advocate Lintle Tuke, is challenging Sections 4 and 5 of the amendment. The Law Society argues that these sections require a referendum before they could be promulgated. The sections deal with affirmative action and access to justice.

The Constitutional Court has directed interested organisations to file their papers within 30 days of publication of the court notice. The applicants will then have 30 days to respond to the interested parties' submissions, while the respondents will have 30 days to file their answers. The court's decision to expand the case 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 Law Society has announced that it is abandoning its challenge to Section 6 of the Tenth Amendment while maintaining its case against Sections 4 and 5. Advocate Tuke told the court that the society wants the two provisions declared unconstitutional and struck down, but does not seek to invalidate the entire amendment. The society argues that the introduction of affirmative action provisions required Parliament to comply with the constitutional amendment procedures, including holding a referendum.

Boloetse's application argues 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 contends 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. Boloetse is seeking a much broader remedy than the Law Society, arguing that the entire Tenth Amendment should be declared unconstitutional.

The case raises important questions about the legal consequences of the alleged failure to hold a referendum. The court's decision to invite civil society organisations to participate in the case could have significant implications for the country's constitutional reform process. The Prime Minister, Sam Mateka, has presented the amendment as part of Lesotho's progress in addressing its political and security challenges. However, the controversy surrounding the amendment's passage has raised concerns about the legitimacy of the process.

Key points

• The Constitutional Court has invited civil society organisations to join a case challenging the Tenth Amendment.
• The Tenth Amendment was passed without a referendum, sparking controversy in Lesotho.
• The case raises important questions about the legal consequences of the alleged failure to hold a referendum.