ConCourt long

Prof TACHILISA BALULE | Monday February 9, 2026 09:15

Limitations on governmental power involve the separation of powers among the organs of government (Executive, Legislature, and Judiciary), a system of checks and balances, and due process of law. Furthermore, constitutional democracies guarantee individuals fundamental basic human rights, including freedom of opinion and expression; freedom of the media; freedom of association and the right to privacy. Commenting on the nature of the Constitution, the Court of Appeal, in the celebrated case of Attorney General v Dow 1992 BLR 119 at 129, said: ”A written Constitution is the legislation or compact which establishes the State itself. It paints in broad terms on a large canvas the institutions of that State, allocating powers, defining relationships between such institutions and between the institutions and the people within the jurisdiction of the State, and between the people themselves”.

The Court of Appeal observed that the Constitution is meant to serve not only the current generation, but also generations yet unborn. The Court also said that the makers of a Constitution do not intend it be amended as often as other legislation and stressed that because of this, when interpreting the provisions of the Constitution, courts should not allow the Constitution to be a lifeless museum piece, but must breathe life into it from time to time as the occasion may arise to ensure a healthy growth and development of the State through it. This is an acknowledgment that societies are not static, and as they develop, the Constitution should adapt to accommodate the changes. For example, fifty years ago, it was understood that the guarantee of rights imposes only negative obligations on a state not to unduly interfere with the protected rights. However, over the years, it has come to be accepted that some rights may impose positive obligations on a state to put in place measures that promote the full enjoyment of the protected right. The interpretative approach whereby courts try to breathe life into the Constitution is referred to as purposive. The essence of this is that, when interpreting the provisions of the Constitution, a court must seek to promote the general legislative purpose underlying a provision. It requires that words be read with context, and the approach assumes that context may change and, therefore, may require an updated construction allowing the Constitution to be read as always speaking. It is important when applying a purposive interpretation of the provisions of the Constitution to consider how similar issues have been resolved in other jurisdictions because of the commonality in provisions of many bills of rights across the world and that these have been inspired by the same philosophy.

The Constitution of Botswana gives the High Court power to enforce the protective provisions, which guarantee individual fundamental rights and freedoms. In terms of section 18 (1) of the Constitution, any person who alleges that any of their fundamental rights protected in the Constitution have been, are being, or likely to be contravened, may apply to the High Court for redress.

The question of whether Botswana needs a Constitutional Court can be answered by critically assessing whether both the High Court and the Court of Appeal have satisfactorily protected the fundamental rights and freedoms of the individual entrenched in the Bill of Rights. My honest and humble opinion is that both courts have not, hence the need to urgently set up a Constitutional Court. My view is informed by the approach the courts have taken when dealing with fundamental rights such as freedom of expression, media freedom, and the right to vote in a free, fair, and credible election, rights which are the bedrock of a democratic society. The courts have failed to interpret the provisions of the Constitution, which guarantee these rights in a way that will ensure the healthy growth and development of the State. Perhaps, the major obstacle to the healthy growth and development of the State is the doctrine of constitutional avoidance, which courts adopt when confronted with deciding the constitutionality of a law whose lawfulness is being questioned. The doctrine is to the effect that where it is possible to decide a case before the court without having to decide a constitutional question, the court must follow that approach. This approach has been used by the courts to avoid determining the constitutionality of some controversial provisions, such as sections 59 and 51 of the Penal Code, which criminalise the dissemination of false and alarming news and sedition, respectively. These two provisions remain a menace to the enjoyment of freedom of expression and are often used against the media. In several cases, courts have simply decided not to interpret the provisions of the Constitution as a living document, contrary to the principle of interpretation laid down by the Court of Appeal that courts must breathe life into the document. In breathing life into the Constitution, courts are called upon to have regard to the document’s liberal democratic values, and, where necessary, seek guidance from international human rights treaties to which Botswana has subscribed. Indeed, there are several cases in which both the High Court and Court of Appeal have done so, yet in many cases they have plainly disregarded the principle. In the case of Good v Attorney General (2) [2005] 2 BLR 337, the Court of Appeal declined to declare the provisions of the Immigration Act, which conflicted with international law, unconstitutional. This was a departure from its previous position in the Dow case, where, in declaring some provisions of the Citizenship Act unconstitutional, the Court sought guidance from international law. The High Court took a similar approach in a case involving the Gazette newspaper and Water Utilities Corporation (WUC). The Gazette had requested access to a report commissioned by the WUC on alleged illegal dams that were impeding the flow of water into the Gaborone dam. The WUC refused to share the report, whereupon the newspaper approached the High Court, applying for an order compelling the WUC to share the report. The newspaper was arguing that it has a constitutional right to receive the report, which is premised on the right to freedom of expression guaranteed in the Constitution.

The Constitution does not expressly guarantee the right of access to information, and the newspaper was arguing that the provision be interpreted in line with international law, which recognises a right of access to information as an aspect of freedom of expression. The High Court rejected the argument of the newspaper, holding that the international human rights instruments referred to by the newspaper have not been made part of the law of Botswana and could not be relied upon. Clearly, the court declined to adopt a purposive interpretation of the Constitution, thereby failing to contribute to the healthy growth and development of the State. Another area where our courts have adopted a conservative approach in the interpretation of fundamental rights is concerning the concept of free, fair and credible elections, which are an aspect of the franchise guaranteed in the Constitution of Botswana.

Elections are critical in a democracy as there a means through which citizens participate in the governance of their country, hence the need for elections to be free, fair, and credible so that the process is acceptable to voters. While international law requires that elections should be free, fair, and credible, the standards by which this can be measured remain variable. This is one area where our courts should be seeking guidance from international law and foreign comparative law to set standards for acceptable electoral practices in the country. A series of decisions by both the Court of Appeal and the High Court on electoral disputes raises concerns. In the case of Independent Electoral Commission vs Umbrella for Democratic Change, the Court of Appeal was faced with an application by the UDC to have its agents observe the voter registration process. They were arguing that they have a constitutional right to observe and monitor the national election registration process. The UDC believed that the process was conducted unfairly in that it was done outside the eyes of key stakeholders, rendering it subject to manipulation of data to the benefit of the then-ruling party to the detriment of the UDC. Deciding on the question whether the UDC has a constitutional right to monitor the registration process, the Court of Appeal opted for a literal interpretation of the relevant constitutional provisions and concluded that the provisions relied on by the UDC could not be said to be granting the party a right expressly or impliedly to monitor the registration process.

The approach taken by the court deviates from its well-established principle that when interpreting the provisions of the Constitution, a court must seek to promote the general legislative purpose underlying a provision. It is contended that the legislative purpose underlying the provisions that the UDC was relying on was the promotion of free, fair, and credible elections. The registration process is an important stage of the electoral process and must be credible. In another case at the High Court, the leader of the Botswana Congress Party had approached the court to seek an order directing the IEC to provide them with a soft copy of the voters’ roll. The roll is a key component of the electoral process and is therefore important that it must be acceptable to all voters and contesting political parties before the poll. Publication of the roll promotes transparency and is a critical attribute in the promotion of free, fair and credible elections. Unfortunately, the majority of the judges who heard the case opted for a literal interpretation of the relevant provisions of the Electoral Law and concluded that the Act only mandates the IEC to provide a hard copy and not a soft copy of the roll.

I chose the above cases to demonstrate that the High Court and Court of Appeal have not consistently applied the principles that when interpreting the provisions of the Constitution, a court must seek to promote the general legislative purpose underlying a provision and breathe life into the document. There could be various reasons why the courts in some of these cases opted for a conservative approach in the interpretation of the provisions of the Constitution. This has led me to believe that if Botswana had a Constitutional Court, the situation would be different, given the nature and mandate of the court. A constitutional court is a specialised tribunal whose main mandate is to defend the normative superiority of constitutional law within the judicial order. Its role is to review laws, executive decisions and acts to determine whether they are constitutionally valid and to provide a remedy in cases where they are not. Furthermore, unlike general courts, constitutional courts may also be empowered to decide abstract questions that do not arise as a set of facts giving rise to a specific or concrete legal dispute between the parties. I support a constitutional court that has these additional powers.

This will be ideal for Botswana in view of the laws that permit secret surveillance of individuals without providing adequate safeguards against arbitrary use of surveillance by state agents. Naturally, surveillance takes place in secrecy, and the target will never know that they were the subject of surveillance. There is an emerging trend worldwide where journalists are specifically targeted by law enforcement agencies. While journalists play a vital role in disseminating information and acting as public watchdogs in our societies, they are not immune to conduct that justifies surveillance of other members of society, as they may engage in conduct that amounts to serious crime or that jeopardises the security of the state. The use of secret surveillance against journalists may be justifiable in certain instances; however, it creates potential for arbitrary and unlawful use by state authorities. The use of surveillance technologies must be accompanied by effective legal safeguards that will ensure adequate protection for individuals and a fair balance between all interests concerned.

The laws regulating the use of secret surveillance methods in Botswana do not provide adequate safeguards, but it will be very difficult for an individual to produce admissible evidence before the courts to challenge the laws. A constitutional court is thus imperative to ensure the full enjoyment of human rights, and it resonates with the UDC’s pledge to be a human rights-based government. A question that many people are asking is: should the introduction of the court not be part of the envisaged comprehensive review of the Constitution? The envisaged comprehensive review is going to take time; I don’t see any meaningful engagement taking less than three years. It is therefore on this basis that I believe the approach taken by the UDC government to expedite the establishment of the constitutional court is appropriate, given the inadequacies of the current system highlighted above. Establishing a constitutional court before the comprehensive review would also ensure that there will be in place an appropriate body to adjudicate issues arising in the constitution-making process and reviewing the constitutionality of the amendments.

*Professor Badala Tachilisa Balule is an Associate Professor of Law at the University of Botswana.