Constitutional Court – Is it necessary?
MULLER KEGANNE | Thursday March 26, 2026 16:59
There is no denying that a country’s Constitution is a very important piece of legislation, as it protects fundamental individual rights and freedoms, maintains a balance of power, and helps individuals and businesses safeguard their legal rights and freedoms. A Constitution, in this respect, is a foundation for the laws and institutions of a nation.
Meanwhile, a Constitutional Court is, by definition, a specialised court with jurisdiction over constitutional matters, including judicial review of legislation and adjudication of its constitutionality. Thus, a Constitutional Court would typically be set up to serve as a strong enforcer of a new or amended constitution.
This article proceeds on the basis that there is no doubt that Botswana needs to review its Constitution to modernise it and align it with the aspirations of all citizens. The only question that remains, therefore, is whether we need a Constitutional Court to be established before we embark on the main review of the country’s Constitution.
Historical overview
The early years
Before expanding on the foregoing and giving the reader my position on the vexing question of whether we need a Constitutional Court, let me note that I have researched the subject extensively. My research has revealed that, in fact, a growing number of countries today have centralized constitutional review power in a specialized constitutional court, while denying the rest of the judiciary the power to void legislation. This centralized model of constitutional review, by way of background, has its origins in the work of the great Austrian legal theorist Hans Kelsen, who used it in his design for the 1920 Constitution of the Austrian First Republic.
Ordinary judges, in Kelsen’s view, were servants of the law, and their task was limited to applying it (see Kelsen 1928, as discussed in Stone Sweet 2012). Judges should not be empowered to make law, nor could they properly determine the constitutionality of legislation. This view squarely falls within the civil law tradition, which, building on Montesquieu, envisions a strict division of labor among the three branches of government, rather than a system of checks and balances in which the branches not only collaborate but also compete with one another (Merryman and Perez-Perdomo 2007). To preserve legislative sovereignty (and the traditional conception of the separation of powers) as much as possible, Kelsen designed a special, more explicitly political body called a Constitutional Court, whose members were appointed for life by the legislature to adjudicate constitutional disputes (chiefly those involving Austrian federalism).
This kind of centralised review is often “abstract”: the Constitutional Court does not resolve concrete cases between two litigating parties but answers constitutional questions referred to it by elected government officials, either before or after the adoption of a law. In addition to abstract review, many constitutional courts may also review concrete disputes, typically constitutional questions referred to them by the judiciary in the course of ordinary litigation. Ordinary proceedings are suspended until the Constitutional Court has ruled on the constitutionality of the statute in question.
Once the Constitutional Court has decided, its ruling will serve as the basis for the referring court’s decision (e.g., Austria Const. art. 89 (1920)). The Kelsenian model of constitutional review was soon adopted in other countries, including Czechoslovakia (Const. art. 54.13 (1920)), Liechtenstein (Const. art. 104 (1921)), and Iraq (Const. art. 83 (1925)), ultimately finding a place in the Basic Law of post-war Germany. The developing Constitutional Court model
Whereas the Austrian model provided only for the limited jurisdiction of certain disputes, the German model introduced the device of the constitutional complaint, under which any individual could challenge the constitutionality of a statute or government action, even in the absence of a specific case or controversy. This new mechanism played an important role in democratising access to the Constitutional Court and associating the institution with the protection of rights. An essentially similar institutional arrangement, but one without direct constitutional complaint, is found in Italy (Ferejohn and Pasquino 2004; 2012). Constitutional Courts of the Kelsenian type were adopted throughout Europe during the third wave of democracy (for example, in Portugal in 1976, Spain in 1978, and the former Soviet bloc after the Cold War).
Studies have shown that, in fact, while the decentralised U.S. model of constitutional review was once dominant, the model closely tied to a specialised constitutional court is slightly more popular today. The modern era and the citizens’ right to participate in reviews It is noteworthy that modern Constitutional Courts are, however, primarily staffed by jurists or people with legal or judicial experience, charged with ensuring constitutionality. Given that these also use court-like procedures, Constitutional Law scholars treat these bodies as exercising the power of constitutional review (Stone Sweet 1992, 1995, 2000).
Studies show that constitutional reviews by Constitutional Courts worldwide have been carried out by both democratic and autocratic regimes. Scholastic findings suggest that autocratic regimes do not simply adopt constitutional review to capture the electoral market, secure favourable constitutional dispensations, or even just secure international approval, since Constitutional Courts, after all, may impose genuine constraints on autocratic leaders after their adoption (see Ginsburg and Moustafa 2008).
Those opposed to the Constitutional Court's involvement in constitutional review often give the misleading impression that constitutional review constitutes a complete system of political authority, on the same basis as, say, democracy, aristocracy, or monarchy. However, constitutional review relates to a much more limited range of decisions (and indeed a more limited type of decision-making) than the term ‘juristocracy’ suggests. For one thing, in political systems which possess judicial powers of constitutional review, most political decisions, (including important policy-making issues), are left to the democratic process accountable to the citizen-body. Nor is it even the case that all matters related to constitutional rights are allocated to the courts under constitutional review. Much of the detailed regulation of rights is carried out by the legislature in the course of its policymaking decisions, not all of which will be in response to judicial decisions.
Moreover, as is well known, judges do not get to choose which areas of the law to adjudicate since they are largely responsive to the vagaries of litigation. Only a very small proportion of the statute book ever comes before the courts through litigation. Constitutional review does not give the courts the power to make primary political decisions, but merely the power to review the exercise of primary decision-making authority possessed by the legislature and executive for compliance with a set of legal norms.
The task of review is therefore secondary to parliament's primary law-making powers and is only invoked in relatively rare circumstances. This highlights the fact that, unlike say, democracy, monarchy, or aristocracy, constitutional review is not a complete theory of political authority. It is a decision-making procedure designed to address a limited range of issues in a limited way. As such, it should not be posed as an alternative to the area of law-making powers that is the preserve of Parliament. See Ewing, ‘The Futility of the Human Rights Act’ (2004) PL 829, 831; Tomkins, ‘Our Republican Constitution’ (Hart Publishing: Oxford, 2005).
Notwithstanding whatever position one takes on the ideal process of constitutional review, at the end of the day, for many ordinary men and women, participation through litigation offers a much better chance of getting grievances addressed than pursuing a case through the normal channels of democratic politics.
The final factor limiting the extent to which it might be appropriate for us to change our views about constitutional review concerns how general institutional features can influence decision-making and give us confidence that decisions will be made in a certain way. Thus, one common way of justifying constitutional review is to argue that since judges are relatively immune from electoral pressures, they are more likely than elected politicians to make decisions that protect human rights, even when those decisions are unpopular with the electorate. Take, for example, the argument that judicial review provides a much more effective constraint on government than, say, review of executive decisions by a committee of lower civil servants. The argument that judges may be able to withstand electoral or popular pressure to a greater degree than politicians is not based on the idea that judges are inherently more enlightened or more courageous than the typical legislator. The point is simply that politicians and judges make their decisions in different institutional contexts, making it easier for judges to withstand popular pressure. Given that their institutional design makes them relatively immune from popular pressure, this gives us a reason to favour constitutional review as a reviewing procedure to ensure protection of human rights, especially when such protection may be deeply unpopular.
By subjecting judicial decisions to critical scrutiny, we help hold judges to account. Even if we believe that judges are doing a relatively good job of enforcing human rights, we should not be sanguine about the powers they exercise. Judges are, to some extent, part of the political elite, and they need to be reminded that their decisions will be assessed with a critical eye. Also relevant is the well-known fact that strong emotions influence our judgment. This is the case in Botswana where those in opposition (both political and those opposed to the possibility that their preferred death sentence dispensation may be affected by the formation of a Constitutional Court), seriously hate the idea of having a Constitutional Court.
When we love someone, we may be blind to their flaws. Even when we see their flaws, we may be disposed to underplay them or make excuses for them. Similarly, when we are in the grip of hatred, we are reluctant to accept that those we hate may possess good and laudable character traits. Indeed, we may be reluctant to give them credit even when it can be shown that they have changed. In this article, after extensive research on the subject matter, I argue that, regardless of which side one takes, the empirical record of judicial decision-making (together with the political context in which it operates) is central to the justification of constitutional review.
In closing, we can only concede that Botswana is neither the first nor in the minority among democracies that sought to establish a Constitutional Court before initiating the process of drafting major constitutional amendments. It is trite that several countries established a system of constitutional review that often involved a dedicated Constitutional Court prior to the process of subsequent major constitutional amendments. The Constitutional Court subsequently reviews the constitutionality of new amendments.
Key examples include, as already alluded to above, Germany. where the German Federal Constitutional Court (Bundesverfassungs gericht) was established in 1949, and in the 1950s, the court ruled on implicit substantive limits to constitutional amendments. The Constitutional Court had to intervene in India (Supreme Court) in 1973 in the landmark Kesavananda Bharati case, holding that certain fundamental principles of the constitution are unamendable, effectively reviewing amendments. (Underlining added for emphasis). The Turkish Constitutional Court intervened in the amendment of the 1961 Turkish Constitution primarily to check procedural requirements and, in one instance, ruled on amendments declaring them unconstitutional for infringing secularism. While other examples elsewhere include France, Ireland, Taiwan, Austria, and Guatemala, nearer to us, the Constitutional Court in South Africa also has the power of judicial review.
This centralized model of constitutional review, involving Constitutional Courts, already established in Western Europe, spread in the 1990s rapidly across Eastern and Central Europe, West Africa, and Southern Africa; even countries that had previously been experiencing authoritarian rule, including Iraq, Libya, and Tunisia, transitioned to establishing new courts that were involved in their constitutional review, so did Egypt.
Conclusion
The writer is thus compelled to align his conclusions with those of the Botswana President, who affirmed that the establishment of a Constitutional Court is an important step in developing the country’s constitutional democratic system and in strengthening human rights.
The advantages of a Constitutional Court include guarding the Constitution by reviewing laws for constitutionality, protecting individual rights and freedoms – both fundamental and socio-economic - from government abuse by ruling on the constitutionality of laws, resolving power disputes between different branches or levels of government, and ensuring legal uniformity by creating a consistent interpretation of constitutional law. The Constitutional Court will clarify ambiguities in the existing constitution’s amendment provisions, thereby providing legal certainty and stability. This specialisation prevents the dilution of constitutional law within a general court system and provides a crucial mechanism for maintaining a balance of power and upholding the rule of law.
As the guardian of the constitution, the Constitutional Court shall act as a check on the legislative and executive branches, ensuring that laws and executive actions comply with the fundamental principles and rules laid out in the constitution; it maintains a balance of power between different government bodies by ensuring that no single branch can act with absolute authority. This power would be exercised through the review of laws, decrees, and international treaties. A Constitutional court would be dedicated to constitutional matters and would not be susceptible to the usual delays that currently besiege our existing courts when it comes to speedy hearings and the disposal of cases, given the latter’s handling of a plurality and diversity of cases.
We all know that there is a serious backlog of cases in almost all of our courts. Unlike courts that handle a wide range of cases, a Constitutional court specialises in constitutional law. This allows for a deeper and more focused analysis of the legal questions involved. Before departing, it is worth noting that a commission previously carried out a country-wide survey, led by Retired Chief Justice Dibotelo. It is reported on page 141 of the Report on the
The Commission’s findings that Batswana wanted the establishment of a Constitutional Court.
Admittedly, not much education on Constitutional Law was rendered to the public by the Dibotelo Commission prior to making their findings. But credit must be given to the current executive for embarking on a nationwide education campaign to teach citizens about the advantages of having a Constitutional Court, after the government had passed and published Bill No. 14 of 2025 establishing the Constitutional Court. This exercise has allowed all entities – the writer hereof included - of varied interests to post their two cents’ worth of contributions to the crusade of elucidating on the importance, advantages, and disadvantages of establishing a Constitutional Court.
A few disadvantages, like the effect of emptying the country’s already contracted financial wallet, are given as reasons for opposing the establishment of the Constitutional Court. But these ignore that the matter is already budgeted for, even as other pressing needs that eat into our fiscal basket are.
Others fear and/or reason that the powers that be may push their preferences, such as establishing a Constitutional Court to amend the existing constitutional provision on the death penalty for justifiable cases. This position may be unwarranted because one of the primary advantages of involving a Constitutional Court before, during, and even after the process of amending the Constitution is to ensure that the core principles and integrity of the existing constitutional framework are upheld. An independent Constitutional Court can provide a neutral, non-political interpretation of the existing constitution’s amendment procedures and limitations. This helps insulate the process from short- sighted or partisan political interests that might otherwise seek to entrench their power. So if the death penalty, for Botswana, falls within and or forms part of the prevailing core principles and is entrenched in the existing constitutional framework, then there should be no fear that there will be some executive interference or abuse of power in subsequent constitutional review resulting in the existing death penalty constitutional dispensation being made unconstitutional; in some legal systems, as already pointed out above, the Constitutional Court has established that even constitutional amendments are only valid if they
Do not damage the basic structure or essential features of the Constitution. In any event, the majority of scholars and jurists have always posited: the question is whether the courts do a sufficiently good job overall—sufficiently good, that is, to outweigh the costs. Thus, when considering which political decision procedure should be entrusted with the task of enforcing fundamental rights, the question is: in the circumstances of the time and place under consideration, which institution is most likely to enforce them well, with the fewest adverse side effects? Are the instrumental benefits sufficient to outweigh the costs? This standard of assessment has several advantages, given the value of stability in constitutional structures. Thus, one common way of justifying constitutional review is to argue that since judges are relatively immune from electoral pressures, they are more likely than elected politicians to make decisions that protect human rights, even when those decisions are unpopular with the electorate.
Hence, as already argued above, it is necessary to establish a Constitutional Court that not only shall protect private rights but shall act as a check - as the guardian of the constitution - on the legislative and executive branches, ensuring that laws and executive actions comply with the fundamental principles and rules laid out in the constitution, while safeguarding the constitutionality of all process during the constitutional review that will follow.
*Muller MD Keganne is an attorney-at-law (Cell 75961035)