The quest for a transformative People’s Constitution (Part 1) :: Mmegi Online

I have been asked to speak on Botswana’s quest for a transformative constitution in the backdrop of a presidency driven constitutional reform process that has now yielded the Constitutional Amendment Bill of 2024, still under discussion, and in all probability, likely to pass as per the wishes of the executive, on the main. Towards the end of my discussion of this broad topic I will discuss the issue of the amendment power, and pose the question, possibly novel amongst lawyers – particularly students of constitutional law, whether Parliament is at liberty to amend the constitution, as it wishes.

It is convenient to start this conversation from the 1st of December 2021. In December 2021 his Excellency the President of Botswana, acting in terms of the empowering provisions of the Commission of Inquiries Act established a Constitutional Review Commission led by my brother, former Chief Justice Dibotelo. The Commission was given 9 months to undertake its work and submit a report to the President which it did.

The model of revising the constitution was to invoke the Commission of Inquiries Act, which was not the best approach having regard to international best practice. This is so because under the said Act the Commission is appointed by the President alone. The Commissioners are appointed by the President alone. The Terms of Reference for the Commission are also the sole prerogative of the President.

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