OP-ED: The Case For a Constitutional Court in Botswana - Botswana Needs a New Kind of Court - Because The People
Asked For Change
If there is widespread demand for protection, justice, and robust checks on power, the Constitution must evolve accordingly.
In 2022, the former Chief Justice, His Lordship Dibotelo (retired), chaired and presented the Report of the Presidential Commission of Inquiry into the Review of the Constitution of Botswana. The Commission undertook an extensive nationwide consultation, covering over 27,000 kilometres and engaging with citizens from cities, villages, cattle posts, and settlements. The consistent message received was that the existing Constitution no longer aligns with Botswana’s current realities. .
Data Protection Act of Botswana (2024)
Several key concerns were raised by citizens, including:
1. Excessive concentration of power in a single entity,
2. Over-centralization of decision-making processes,
3. A system that disproportionately empowers the Executive.
Together, these voices point to a simple truth: the Constitution of 1966 is struggling to support a modern Botswana.
These concerns collectively indicate that the current Constitution faces challenges in supporting a modern Botswana.
The judiciary has achieved significant progress, notably in advancing women’s rights (as reflected in the Unity Dow and Mmusi cases), safeguarding human dignity (Motshidiemang case), and affirming tribal and indigenous land rights (Balete and Banika cases). These judicial achievements demonstrate the competence and integrity of Botswana’s judges. However, the judiciary is increasingly required to address complex constitutional matters without sufficient structural support.
Presently, Botswana is confronted with nuanced constitutional questions relating to:
1. Digital privacy,
2. Community land rights,
3. Environmental protection,
4. Equality,
5. Limitations on presidential authority,
6. Fair treatment by government officials.
This is why Botswana should create a Constitutional Court.
Addressing such issues necessitates a dedicated body focused exclusively on constitutional matters.
Reflecting recent remarks by His Excellency, Advocate Duma Gideon Boko, it is prudent for Botswana to consider the establishment of a Constitutional Court. This specialized court would adjudicate constitutional matters, as seen in jurisdictions which have attained a certain degree of maturity such as Canada and South Africa, which have demonstrated the value of dedicated constitutional jurisprudence. Such a court would complement—not supplant—the Court of Appeal and serve to enhance the overall legal framework.
Importantly, the proposition for a Constitutional Court originates not merely from political or academic circles, but from the broader population, as evidenced by the Commission’s consultations. The public consistently expressed the need for clearer protections and assurances of rights, stronger governmental oversight, and more effective mechanisms for holding leaders accountable. Expedited judicial responses to rights violations and a Constitution that reflects contemporary values were also high priorities.
While there are concerns regarding the potential costs and political implications of creating a new court, the risks associated with maintaining the status quo are arguably greater. Persistent frustrations regarding delayed justice, inconsistent treatment, and inadequate oversight will likely intensify if meaningful reform is not undertaken. Even a modest Constitutional Court, comprising five to seven judges, could provide much-needed clarity and order on constitutional issues affecting all citizens.
Botswana has a proud democratic tradition. However, a thriving democracy must adapt to changing circumstances. The Commission’s findings clearly indicate the population’s readiness for constitutional modernization—towards a framework suited to present-day needs and aspirations. It is imperative to recognize that constitutions must be dynamic, reflecting evolving societal values and requirements.
In conclusion, given the articulated desire for strengthened rights, increased accountability, and a more equitable justice system, establishing a Constitutional Court represents a logical and timely advancement.
The moment for comprehensive constitutional reform is at hand; having heard from the people, it now falls to the nation to respond decisively.