The recent High Court judgment in the matter brought by Honourable Teboho Mojapela together with the Basotho Covenant Movement and the Popular Front for Democracy may, in time, be remembered as one of the most consequential constitutional decisions in Lesotho’s democratic history. Not merely because the court ordered Parliament to enact conflict-of-interest legislation within twelve months, but because the judgment quietly exposes a deeper constitutional reality that the country can no longer ignore.
That reality is simple: Members of Parliament who are doing business with the state may already be constitutionally disqualified from holding office.
The court’s reasoning cuts through years of political ambiguity. Parliament had attempted to reject the Conflict of Interest Bill through a majority vote. But the judges made it clear that Parliament cannot use voting procedures to defeat a constitutional obligation. The Constitution remains supreme, and no institution of state can simply choose to ignore it.
But beyond ordering Parliament to enact legislation, the judgment forces the country to confront a much more immediate question.
If the Constitution already disqualifies individuals with commercial interests in government contracts from serving in Parliament, what should happen to MPs who currently find themselves in that situation?
The answer may lie directly in Section 59 of the Constitution of Lesotho.
Section 59 deals with disqualifications for membership of Parliament. Among the factors listed are situations where a person holds interests in government contracts. The Constitution anticipates legislation to regulate this matter, but the principle itself is clear: individuals whose financial interests intersect with government contracting cannot be expected to exercise independent legislative oversight over the very state from which they profit.
This is not a technical legal question. It is a question about the integrity of the state.
The High Court’s judgment explains the logic behind this constitutional safeguard. When individuals with commercial interests in government contracts occupy positions of political authority, the temptation to manipulate public power for private benefit becomes overwhelming. Such situations risk turning the machinery of government into a marketplace for self-enrichment.
The Constitution therefore placed a clear boundary between public office and private financial interests in government contracts.
What the High Court has now said, in essence, is that Parliament cannot pretend that this constitutional safeguard does not exist.
Yet there is a further implication that has not yet been widely discussed.
If an MP is constitutionally disqualified under Section 59, the Constitution does not contemplate that they remain comfortably seated in the National Assembly while Parliament debates future legislation.
Quite the opposite.
The Speaker of the National Assembly has both the authority and the responsibility to ensure that the constitutional qualifications for membership of Parliament are respected. Where a member becomes disqualified, the normal constitutional consequence is the declaration of a vacancy in that constituency.
And when a constituency seat becomes vacant, the democratic remedy is straightforward: a by-election.
This is not a radical proposition. It is the very mechanism through which the Constitution preserves the legitimacy of Parliament. Constituencies cannot remain represented by individuals who no longer meet the constitutional requirements to serve.
In other words, the High Court’s judgment does more than order Parliament to pass a law.
It forces the country to confront whether some MPs are already sitting in Parliament in violation of the Constitution.
The uncomfortable truth is that the issue of politicians doing business with the state has hovered over Lesotho’s politics for years. Contracts, tenders and political power have often moved too close together for comfort. The public has long suspected that the lines between governance and personal business interests have blurred.
Now the Constitution itself has returned to the centre of the conversation.
The High Court has reminded the country that constitutional obligations are not optional. Parliament cannot vote them away. And if the Constitution sets limits on who may serve as a Member of Parliament, those limits must be respected.
Which brings us back to the role of the Speaker.
If credible evidence exists that certain MPs hold interests in government contracts, the Speaker should not wait passively for legislation to be enacted within twelve months. The Constitution is already in force today.
The responsible course of action would be to determine whether those MPs remain constitutionally qualified to hold office. If they do not, the Speaker should declare vacancies in those constituencies.
The ultimate decision would then rest where it properly belongs: with the voters.
Let the affected constituencies go back to the polls and elect representatives who meet the constitutional standards for public office. If the voters wish to return the same individuals to Parliament after they have resolved their conflicts of interest, that is their democratic right.
But the current situation, where individuals potentially sit in Parliament while simultaneously doing business with the state, is precisely the type of arrangement the Constitution was designed to prevent.
The High Court has opened the constitutional door.
It is now up to the institutions of Parliament to decide whether they will walk through it.
