Constitutional court: Time is now
Tsaone Basimanebotlhe | Monday June 15, 2026 06:00
Speaking during a panel discussion held at Botswana University of Agriculture and Natural Sciences (BUAN) in Sebele, Gaborone, on Tuesday on the importance of a Constitutional Court, Associate Professor of Law, Tachilisa Balule, described the moment as a decisive one for Botswana, saying the country must act now or risk lagging behind other democracies in constitutional development. Balule noted that Botswana continues to rely on several laws that have remained largely unchanged since independence, despite significant social, political and legal developments over the years. Consequently, some of these laws are increasingly coming into conflict with modern constitutional principles and emerging human rights standards. According to Balule, while not all laws necessarily require constitutional review, a specialised Constitutional Court would provide expert interpretation of constitutional matters and help resolve legal uncertainties.
“Some of these laws may not require constitutional review. However, judges sitting in a Constitutional Court may be better placed to interpret them in line with constitutional values,” he said. He further argued that Botswana currently relies on general courts whose judges handle a broad range of legal matters, rather than constitutional specialists dedicated to interpreting and protecting the supreme law of the land.
“Currently, we have general judges who are not specialists in constitutional law. Botswana is a constitutional democracy, and that is one of the reasons why other countries respect us. However, we cannot afford to remain behind forever, especially when we pride ourselves on respecting human rights,” he said. Furthermore, Balule said a Constitutional Court would provide guidance on whether constitutional amendments are necessary and help clarify legal questions before lengthy constitutional review processes are undertaken.
“Constitutional review can take three years or even longer. A Constitutional Court can help guide us on whether such reviews are necessary. Importantly, this institution must belong to Batswana and not be viewed as a project of any political party,” he added. Another panelist, Kago Mokotedi, stressed that although Botswana faces several pressing challenges, including shortages of medicines in public hospitals, the establishment of a Constitutional Court should not be treated as a secondary issue. According to Mokotedi, citizens cannot selectively prioritise certain rights while neglecting others, as all rights are interconnected and equally important. “Some people argue that there are more urgent issues such as medication shortages in hospitals. While those concerns are valid, people cannot be selective about their rights,” he said. He pointed out that several fundamental socio-economic rights, including the rights to health, water and education, are not explicitly guaranteed in Botswana’s Constitution. As a result, citizens often have limited legal avenues to demand protection when those rights are threatened.
“Currently, we do not have constitutional rights to health, water and education. Therefore, we need a Constitutional Court that can help protect our rights. At present, many of these rights are not adequately protected,” he argued.
Moreover, Mokotedi expressed concern over the age of some of Botswana’s laws, saying many have failed to keep pace with modern realities. Consequently, courts often rely on legal precedents and interpretations from neighbouring South Africa when dealing with constitutional issues. “Our laws are old and in some cases decades behind modern developments. Because of that, our courts are frequently forced to refer to South African jurisprudence on issues such as freedom of expression and the protection of civil society organisations,” he said.
Similarly, attorney and human rights advocate Njira Mbewe argued that the absence of a Constitutional Court has contributed to inadequate protection of women’s rights and other minority interests. Mbewe maintained that many constitutional and human rights cases require specialised interpretation that ordinary courts have not always provided effectively. “In our daily work as attorneys, we continue to encounter situations where courts fail to adequately interpret human rights issues. That is why the time has come for Botswana to establish a Constitutional Court,” she said. Additionally, Mbewe criticised the tendency to rely solely on majority rule when making decisions affecting constitutional rights, warning that democracy should not become a tool for suppressing minority groups.
“The current system, where the majority always determines outcomes, is problematic. Democracy is not simply about numbers. We cannot use majority rule to oppress minorities,” she said. She further noted that several countries that gained independence after Botswana have already established Constitutional Courts and strengthened constitutional protections for their citizens. “South Africa gained independence as a democratic state long after Botswana, yet it already has a Constitutional Court. Botswana should not hesitate to adopt structures that strengthen human rights and constitutional governance,” she added.
However, residents of the Gaborone North constituency who commented on the matter said there is a need to educate the public about the Constitutional Court.
They also complained that Members of Parliament pass laws without first educating the public about them and their importance. When commenting on the matter, the Member of Parliament for that area, Shawn Ntlhaile, said, “The future of our democracy cannot be built on social media speculation or political party slogans. It must be built on informed citizens making informed choices. That is why I encourage every one of you to read, ask questions, engage and seek the facts for yourself. When the time comes to make a decision, do not vote based on fear. Do not vote based on what somebody shouted the loudest.”
Furthermore, he said if they believe that no citizen, whether rich or poor, connected or forgotten, should ever stand alone when their constitutional rights are threatened, vote for the constitutional court.