Charting Botswana’s new legal dawn
Lewanika Timothy | Tuesday September 23, 2025 12:17
Over the years, a number of aggrieved members of Botswana’s society have approached the courts to challenge certain clauses of the Constitution, deeming it archaic in its definitions and world view. Who can forget the famous Motshidiemang v State where there was a quest towards decriminalising same-sex relations?
Or the Attorney General Vs Dow case, where the courts heard a prayer on the citizenship of children for Batswana women? These cases and times served to remind the polity on the changing tide of Botswana's culture and why there is a need for the law to evolve to match its soul. But what limits exist to ensure a sound constitution?
Ba Pofelo of the DeSai law group is of the view that the Constitution is a living document that progressively has to reflect and mirror its polity while maintaining its supremacy and regard for human rights despite political shifts.
Mmegi: Successive presidents in Botswana have consistently flagged constitutional reform as a priority upon assuming office. In your expert view, what drives this recurring executive interest in constitutional reform? Is it symptomatic of deeper structural or institutional limitations within the 1966 Constitution, or is it more reflective of political expediency or presidential ambition?
Pofelo: The Constitution in its nature is not cast in stone, hence it must be progressive in its governance. The structure of the constitution enacted in 1966 was good and is still good. However, there have been many changes that have taken place in the last 59 years that need to be incorporated into the Constitution. This is what urges successive presidents to reform the Constitution once they ascend to the position of presidency.
For instance, our Constitution does not have socio-economic rights entrenched in it despite Botswana being a signatory to the International Covenant on Economic, Social and Cultural Rights. Further, procurement being a prevalent issue in Botswana, it has not been constitutionalised as compared to South Africa which has a progressive constitution and granted procurement the constitutional protection.
Accordingly, the Constitution being amended or reformed cannot be said to be a “political movement” but rather a safeguard of the rights of the people of Botswana. If it’s political expediency that is used as the main ideology in amending the constitution, then such powers granted are used incorrectly.
Mmegi: Despite repeated calls for constitutional reform, there remains no clear or consistent national consensus on the process such reform should follow — be it via a constituent assembly, commission of inquiry, public consultations, or parliamentary amendment. Why do you think Botswana has not crystallised an accepted procedural model for constitutional reform? Does this ambiguity expose the process to elite capture or undermine its legitimacy?
Pofelo: Constitutional reform is a complex and dynamic process that must take into account a wide array of factors, including differing values, religious beliefs, cultural perspectives, social norms, traditional practices, and institutional frameworks. These elements form the foundational pillars of a democratic society, and their inclusion in any reform process is essential to ensure legitimacy, inclusivity, and long-term stability.
The principle that a constitution must reflect the will of the people derives legitimacy from the fact that sovereign power rests with the people. And the people delegate this power as they wish. The Universal Declaration of Human Rights proclaims in ringing terms that the will of the people shall be the basis of the authority of government; this will shall be expressed by periodic and genuine elections.
In the context of Botswana, the process of constitutional reform presents a critical opportunity for broad-based public engagement. National enquiries, public forums, and consultative processes should serve as inclusive platforms where all citizens, regardless of background, can voice their interests, concerns, and aspirations. This participatory approach ensures that the constitution reflects the will and diversity of the people it governs.
However, prescribing a rigid, uniform process for constitutional reform that is tied to a specific authority or structured mechanism may inadvertently limit the flexibility and responsiveness of the system. Such defined procedures, while offering clarity and legal certainty, can also become outdated or restrictive as society evolves.
Values, cultural norms, and institutional realities are not static; they change over time, influenced by generational shifts, global developments, and internal transformations. Therefore, constitutional reform should not be viewed as a onetime event or a fixed process, but rather as an ongoing exercise. It should remain adaptable, allowing future generations to shape the nation’s foundational legal framework in accordance with their own context and needs.
In my view, Botswana would benefit more from maintaining a flexible and open-ended procedural model for constitutional reform, one that is not confined to a particular authority or bound by strict, pre-defined pathways. Such an approach would allow the reform process to evolve organically over time, ensuring it remains relevant, inclusive, and capable of addressing the changing aspirations of its people.
In one of his writings legal expert, Professor Key Dingake, argued that procedural correctness alone will not legitimise a constitutional amendment if the substance alters the constitution drastically, so much so that the foundational values and principles of democracy are rendered naught
Mmegi: Given that the ethos of constitutionalism is premised on the rule of law, respect for constitutional limits, and democratic legitimacy, do repeated reform efforts — often executive-led — sit comfortably with these principles? Can a constitution be subject to periodic executive review without eroding its normative supremacy or the principle of constitutional permanence?
Pofelo: As alluded to above, the constitution of a country, particularly, Botswana, is not cast in stone. There are provisions that allow for its amendment. Accordingly, these repeated efforts if done within the course and scope of the law, would mean that they are congruent with the rule of law. The Constitution remains supreme regardless.
Mmegi: Does the pattern of incoming administrations seeking to “review” the constitution risk converting it into a political document subject to the preferences of each administration, rather than a foundational legal instrument with enduring values? How do we balance the need for constitutional adaptability with the need for constitutional stability and reverence?
Pofelo: Constitutional reform is fundamentally an exercise undertaken for the benefit and protection of the rights of citizens. While the impetus for reform may originate from a new administration, each government that assumes leadership often seeks to initiate or support constitutional review, reform, or redrafting in alignment with its policy mandates and vision for national development. Importantly, such initiatives are not arbitrary; they reflect the will of the people, as the administration derives its legitimacy through democratic elections and the citizen’s vote.
As such, any constitutional reform process will, by its nature, align with the political mandate of the current administration, which ideally mirrors the priorities, concerns, and aspirations of the electorate. This relationship ensures that constitutional change is not detached from public interest but remains responsive to the evolving needs of society.
Moreover, constitutional reform should not only address present-day challenges and realities but also be progressive. It must consider the interests of future generations, ensuring the legal framework remains adaptable and relevant as society, technology, and global dynamics continue to evolve. The language and provisions of the constitution should, therefore, reflect both the current context and the anticipated development of national life, preserving its relevance across time.
Mmegi: From a legal-structural standpoint, which specific provisions of Botswana’s Constitution, in your view, are in most urgently in need of reform to meet contemporary democratic, human rights, and governance standards? Are there critical blind spots, such as in judicial independence, executive accountability, or electoral fairness — that require constitutional entrenchment or recalibration?
Pofelo: As alluded to above, there is need to codify socio-economic rights in Botswana to make them justiciable. There is also a current need to codify the procedure in which the Judicial Service Commission makes appointments. In a comparative analysis, South Africa, conducts the interviews publicly, to promote public confidence in the judiciary. Accordingly, if such procedure is adopted in Botswana and is entrenched into the Constitution then it would promote the necessary public confidence in the judiciary.
Of course, there is always room for improvement in the amending of the Constitution. Especially in the governing of the important structures that run the country.
Mmegi: To what extent has the reform discourse in Botswana historically included or excluded the public? Does a constitution that is amended or revised without meaningful popular participation meet the democratic threshold envisioned by constitutionalism, particularly in light of Botswana’s commitment to participatory governance?
Pofelo: In Botswana, public participation is not only encouraged but is also a fundamental aspect of constitutional reform, in keeping with the country’s democratic values. It is widely recognised that any constitutional framework or amendment process must reflect the views, concerns, and aspirations of Batswana. Genuine public involvement ensures that the Constitution remains a living document, rooted in the will of the people.
However, despite the acknowledged importance of public engagement, there is growing concern over how these contributions are treated during the reform process. While the need for constitutional reform is constant and evolving, it is disheartening to observe that public views are often not adequately contextualised or meaningfully integrated into the final outcomes. This practice undermines the core principles of constitutionalism, which include transparency, accountability, and participatory governance.
A clear example of this was seen during the 2024 constitutional review process. Although Batswana were invited to participate in the preliminary consultation stages, many expressed disappointment and dissatisfaction with the final draft. There was widespread perception that the final document primarily reflected the perspectives and interests of legislators, rather than the voices of the public. This disconnect between consultation and implementation threatens to erode public trust in the reform process and in democratic institutions more broadly.