Con Court protects existing rights
Enole Ditsheko | Monday February 16, 2026 09:31
As a Cabinet minister, ‘DK’ as Kwelagobe was affectionately known, served at the president’s pleasure, whereas he was popularly elected to lead the BDP. DK surgically delineated the two responsibilities he occupied. On excellent advice, he retained his right to a public office. The latter is a privilege, and might be taken away, depending on the president’s mood. When the same Barata-Phathi faction gobbled up the A-Team in Kanye, the party president undermined their victory by inserting his loyalists in the central committee to render them impotent. Gomolemo Motswaledi stood tall to challenge Khama’s unilateral decision. He challenged the sitting president because the Constitution gives citizens the right to elect their leaders, and everyone must respect the democratic outcome of such a process. The Constitution does not state the sweeping powers of the president to overrule the result of a democratic vote. However, the High Court dismissed the application and ordered Motswaledi to cover the costs. The High Court concluded that presidential immunity was an impenetrable blanket. The High Court did not state that its power was limited in handing down a binding ruling. From the above scenarios, we see how the exercise of citizens’ rights provided for in the Constitution needs safeguards and absolute protection. In the Wayeyi (Kamanakao Association) v State, the same High Court pronounced its limited powers to compel the government to abide by its ruling. It is my layman’s understanding that the Constitutional Court shall exist to hear matters of this nature, where the violator, being the government, should be held accountable through compelling and binding judgments that leave no room for her disregard, but to enforce as directed. In Motswaledi’s case, I hold the view that had he ventilated before the Constitutional Court, it would have adopted a different approach altogether.
Firstly, the court might have appreciated that Motswaledi, as a citizen, was a product of a democratic process entrenched in the Constitution. Secondly, it would have observed that the outcome of such a process was not subject to any violations under the overreaching powers of the president; therefore, rejecting immunity. The Chairman of the Law Society of Botswana, Lesedi Moahi, in his speech at the opening of the legal year, accentuated my belief regarding this model. “A Constitutional Court does not exist to create law. Law-making authority rests with Parliament, which, under Botswana’s Constitutional management, is the supreme law-making body. The role of the Constitutional Court is to interpret the Constitution, adjudicate Constitutional disputes, and safeguard Constitutional supremacy,” he stated. As is, the three arms of government know their roles, but they have not played checks and balances to enhance our democracy. Here is why. Members of the Executive are also members of the Legislature, as demonstrated in the example of DK. This is the source of our discontent. If the president disagrees with a judgment in which a section of the Constitution was successfully challenged, as the head of the Executive, there is nothing that the Attorney General, who represents the government, can do to enforce the ruling. Though our president is not directly elected, by virtue of his political party commanding a simple majority to govern, he is also a member of the Legislature. Who can forget the “Lehenza” vote style that Kgosi Khama IV preferred? Thus, those sections of the Constitution that were successfully overturned in the courts could not get the support of the Executive because the president lacked the willingness, and he also wielded power over elected members of his party inside Parliament. This is the difference I see with the present government, which is willing to welcome challenge through a Constitutional Court.
The present Judiciary setup is limited in guaranteeing these rights already enshrined in the Constitution. However, the lawmakers, the majority of whom are from the same party, willing to guarantee these rights, will ensure that the Constitutional Court is granted powers that go beyond what the current courts can wield to beat the Executive into a straight line. There is no need to have these freedoms in the Constitution, as we do if the government infringes on the citizens’ enjoyment. Therefore, the debate about what should come first between the Constitutional Court and the Constitutional review is insignificant. Unable to predict the outcome of the 2029 elections, and I don’t envision waiting 60 years before citizens of this country can enjoy the equality mentioned in the Constitution. When Sir Seretse Khama was in exile in England, Kgosi Khama IV was born in Chertsey to a British woman, Lady Ruth. Because of his paternal heritage, he enjoyed his rights and became Botswana’s president between 2008 and 2018. Juxtapose his enjoyment of rights with a well-known attorney, Busang Manewe, born and raised in Botswana to at least one citizen. He had to fight hard to reassert his birthright. Like the rest of us, Manewe was educated from the taxes of Batswana until university. He was screened before the Botswana Police hired him. By a stroke of a pen, someone at the Department of Civil and National Registration changed his status. These inconsistencies in the application of the Constitution are what I earnestly believe the Constitutional Court, if given a chance, should address because countless citizens know no other country but Botswana as home, yet they have been rendered stateless. While we embark on a comprehensive review of the Constitution, which I fully support, let us do so unhurriedly. Meanwhile, we should put in place a mechanism to safeguard these inseparable rights at lightning speed. The fears that President Duma Boko wants to liberalise the Constitution to grant rights such as to marry whoever one chooses, regardless of gender, abortion, and abolish the death penalty are not supported by evidence.
The Constitutional Court deals with matters that implicate the Constitution. Rather than granting any rights that do not already exist, its mandate is to protect those rights enshrined in the Constitution. It is, therefore, reasonable that a comprehensive review should happen over a period of time, lest we hurriedly make laws that remove the rights which already exist in the Constitution, because we fear being compelled to uphold equality. The most-talked-about review should not be borne from ill motives to remove good aspects of the law. To undertake this review will take longer than establishing the Constitutional Court, let alone come at a hefty cost. However, we need this forum to start doing exactly what the chairman of the LSB has stated in his address. We have been waiting for too long and should not be asked to wait one more day for equality. The Constitutional Court has limited jurisdiction on Constitutional law. Unlike the South African model, I would not support a Constitutional review that grants positive rights. This is called a progressive, positive rights Constitution. For example, the right to housing. Of course, no government can afford to guarantee this right to its citizens, because provision is dependent on the availability of financial resources. Would the government have taken away the right of citizens if it were in its Constitution, yet failed to provide housing? Yes. Will citizens enjoy locus standi to approach the Constitutional Court to reassert their guaranteed rights under the Constitution? Yes. Even as we are advancing the narrative for a comprehensive review, we should not be ahead of ourselves. Rather, we should be realistic in our dreams for a Constitution that grants rights. In South Africa, for example, the Constitutional Court protected the masses against the will of the African National Congress and Jacob Zuma, after he was convicted of corruption. In 2024, a case about Zuma’s eligibility to be on the ballot was heard, and he was denied the right to run for office. In the United States, the Supreme Court presided over two interesting matters that I was exposed to in my Constitutional law class. In Marbury v Madison (1803), the Supreme Court’s decision established the principle of judicial review, meaning that American courts enjoy the power to strike down laws and statutes that violate the Constitution of the United States. In Dobbs v Jackson (2022), the Supreme Court overruled the Roe v Wade decision (1973) that American women enjoyed as a right to abortion for 50 years, even as it is not mentioned in the Constitution.
The conclusion to overrule the practice was that it is neither explicitly nor implicitly stated in the Constitution. However, the US Constitution prohibits the government’s interference with a person’s right to autonomy. In other words, as a citizen, you have a right to do this, and on the other hand, the government cannot interfere with the right that is already in the Constitution. Hence, the fear that the Constitutional Court will legalise same-sex marriages is unconvincing, because the Constitution is not worded in the spirit that one can marry any person regardless of gender. What rights will the Constitutional Court safeguard and protect in same-sex marriages? None, because the Constitution defines marriage as between a male and a female.
However, the government cannot interfere with the right to associate because it is a human right spelled out boldly. Thus, the government cannot interfere with LEGABIBO and its activities. But members of the association will most likely have an uphill battle to convince the Constitutional Court to legalise same-sex marriages. In recent years, a man named Kemmonye Sekati came out as a polygamist. What does the Constitution say about marriage? Is it about one man to one woman, or a union of people of the opposite gender? Why is Sekati not imprisoned if his practice of marriage offends the Constitution? Your guess is as good as mine. No matter his belief in the human rights of those convicted of murder, there will be no power of manipulation that President Boko can wield on the Constitutional Court judges to abolish the death penalty, because it is enshrined in the Constitution. It would amount to an overreach by the Constitutional Court to declare a section of the Constitution unconstitutional, where there is no inconsistency or contradiction with other parts of the same law. The Constitutional Court compels the government to respect and uphold the citizens’ rights. This is why positive rights are costly to include when you have a Constitutional Court, because the government will be forced to provide them as they appear in black and white. However, a traditional society like Botswana can still thrive with negative rights like those we have. It is easy to enforce them because the Constitutional Court’s job will be to protect those citizens’ rights against violations by the government. If we are serious about protecting citizens’ rights, we have top-notch human rights and Constitutional lawyers, few as we are told, to join the bench.
Professor Justice Oagile Key Dingake is one we can unanimously agree about. He is regarded among the leading progressive jurists in Africa. The Constitutional Court is a creature of statute, and Parliament should set it up. Honestly, I don’t know why it has become a national debate, dividing us into supporters and opponents of an indispensable institution in a democracy. Establishing the Constitutional Court should follow the same processes as those Parliament passed in the past. Therefore, the UDC-led government, in my opinion, invited an unnecessary uproar by consulting and subjecting its establishment to a national referendum. In the previous regime, we were not consulted to set up the DIS, which terrorised us. Were we consulted on the retired president’s package and benefits, which is daylight looting from the taxpayers? Yet we are opposing an institution that protects the inalienable rights of citizens by justifying that a review must precede the establishment of the Constitutional Court. It is bizarre.