Botswana is presently at a turning point, gifted with a new government and a real opportunity to witness seismic change after decades of one party rule.
Batswana have given the new government of the Umbrella for the Democratic Change (UDC) the privilege to drive this process. Realising that this is a rare opportunity to bolster our democracy and the Constitution being a sacrosanct law that governs all of us, irrespective of political affiliation, I believe that public education is desperately needed. It is for this reason that I have decided to do a clause by clause analysis of all the 20 clauses of the Constitutional Bill, which proposes a new institution, the Constitutional Court. As political scientists often say, democracy works better when the voting public is well informed. Much of the debate so far has been whether to have this court or not. There is no discussion whatsoever about the content of the Bill.
It is like there is no Bill before Parliament at all. The discourse at the moment is dominated by the President of Botswana and his ministers and in their frenzied eloquence they are not talking about what the Bill proposes-a glaring omission. Very few MPs have debated the Bill. This is a national tragedy.
Constitutions have permanence and therefore constitutional making must be pursued with sober minds and seriousness. A lesson from the Americans delineates this. Americans are stuck with ‘the right to bear arms’, a constitutional provision that dates back to another era (1791) when America did not have a professional army or police service.
It is conveniently exploited by those with a particular political view while dozens of Americans are slaughtered in gun violence day in and day out. A billion-dollar gun lobby has since merged and blocks every attempt to amend the constitution.
If Batswana vote unwisely on any constitutional proposal they must know that it will be very hard and financially draining to organise another referendum to clean the mess. To start with, parliamentarians of a majority party in Parliament can simply stand in their way-block the thing on the floor of parliament!
The constitutional amendment to establish a Constitutional Court must not be assessed in isolation but located within the broader framework of constitutionalism.
Why do nations make constitutions? A constitution serves three purposes. The first one is to define (limit) government power. A constitution typically determines what power is allocated to the President and Cabinet, to Parliament and to the Judiciary and how it is to be exercised. It anticipates abuse and guards against excessive usage of power by any of these three branches of government-separation of powers. As Lord Acton long warned us ‘Power tends to corrupt and absolute power corrupts absolutely’.
Secondly, a constitution is a guardian of fundamental rights. Where governmental power ends, the rights of citizens begin. The constitution guarantees rights: from the right to life, to free movement, to freedom of speech, to privacy and similar.
And as a guarantor of rights, the constitution leans on the doctrine of the rule of law. First conceptualised by Professor AV Dicey in 1885 and refined by Lord Bingham into 8 sub rules, the concept provides amongst others that, the laws of the land should apply equally to all (unless where objective differentiation is required), the law must afford adequate protection of fundamental rights and means must be provided for resolving, without prohibitive costs or undue delay bona fide civil disputes.
Finally a constitution provides a covenant, a symbol and aspiration of a nation. A constitution is thematic. It is developed within a particular historical context by a people and normally to right some wrongs. It reflects a people’s shared values. A couple of examples are apposite.
The famous Declaration of Independence by the thirteen United States of America in Congress on July, 1776 was informed by their oppression under the King of Great Britain. They listed several instances of abuse, including refusal by the King to assent to laws necessary for the public good, dissolving Representative Houses many times and ‘has made judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries’.
The King had also forbidden his governors ‘to pass laws of immediate and pressing needs’ and obstructed the administration of justice by refusing his assent to laws for establishing judiciary powers.
This explains why for many years Americans believed so much in the rule of law (at least in domestic policy). A US president and his advisers are not allowed to be members of Congress (except for the Vice President). They do not want to repeat the mistakes of the past. That is why the Declaration talks of fundamental rights as natural, inalienable rights and that all men are created equal.
The cherry on top is ‘life, liberty and happiness’. These are American constitutional values. Of course now the Americans have gone the other way round, offending against the rule of law both locally and abroad.
Right next door, the constitution of our neighbours in South Africa was largely meant to right the wrongs of apartheid. The preamble to their constitution signals this: ‘We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity’.
This explains why South Africa for instance has an Employment Equity Act and that allows for positive discrimination in the workplace and it is absolutely constitutional (See In South African Police Service v Solidarity obo Barnard (2014) ZACC 23).
Botswana does not have such. South Africa also banned racial discrimination in their constitution. So in essence they have built the Freedom Charter (1955) into their Constitution: ‘South Africa belongs to all those who live in it, black and white’. These are South African values.
The SA constitution was aptly described by former Con Court judge Albie Sachs as ‘a coherent, functional and value-based framework in which all these problems can be dealt with’. This was also emphasised by SA con court judges Ackermann and Goldstone in Carmichele v Minister of Safety and Security [2001] ZACC 22 (para. 54):
Our Constitution is not merely a formal document regulating public power. It also embodies, like the German Constitution, an objective, normative value system.
As we dissect this Bill, we should ask ourselves what are our values as Batswana. Are they reflected in the substance of this law? And ideally what values should shape the constitution in view of a largely British dominated constitution and years of rule by a conservative government?
I prefer a wholesome review of the constitution because it makes it easier to see the values that inform the entire document. It is also sensible and cheaper. A rushed process risks serious mistakes that will impact generations.
In democratic nations, constitutions serve to allocate power ‘in a manner that is regarded as morally acceptable’ (Elliott & Thomas 2020, p. 22). In other words, power must be legitimised and leaders must strive to obtain consensus from the citizenry. This ensures that leaders are accountable. ‘One of the main purposes of a constitution is to put in place a set of arrangements that enjoys popular legitimacy, which enables the people of a given country to be governed in a way that they regard as acceptable and which thereby renders legitimate the exercise of power by the institutions of government’ (Ibid).
It is also important to understand that constitutions make assumptions. In the case of Americans, two assumptions underline their original constitution in its first ten amendments. The first one is that ‘first comes rights, then second comes government’. Individuals have natural rights given by God that have nothing to with government.
The second one is that government officials are servants, agents/stewards or fiduciaries of the people-the agency theory of government (Barnett & Blackman 2018, p. 3). So politicians rule with the consent of the governed and the constitution and all laws must reflect this. That’s why politicians are required to account to the voters. This American invention has received international acclaim and is synonymous with modern constitutionalism. This gives us another prism with which to assess any constitutional law. With these analytical tools we now proceed to analyse the Bill.
The following review examines the Bill, clause by clause.
In this review, unless the context otherwise indicates— (a) “the Bill” means the Constitution (Amendment) Bill 2025 – Bill No. 14 of 2025; (b) “the Constitution” means the Constitution of Botswana; (c) a reference to a “clause” is a reference to a clause of the Bill; (d) a reference to a “section” of the Constitution is a reference to a section of the Constitution as it currently is; and (e) a reference to a “new section” is a reference to a new section that would be inserted into the Constitution by a clause of the Bill.
Clause 1 names the Bill as the Constitution Amendment Act 2025 and its commencement date. The bill shall only become law after a vote in parliament and a national referendum.
Clause 2 would amend section 8 of the Constitution. Section 8 of the Constitution provides for the protection of a person’s rights where there is a compulsory acquisition of that person’s property. It also secures a right of access by that person to the High Court to decide the legality of the compulsory acquisition and the compensation to which the person is entitled.
Clause 2 would replace the High Court with the “Constitutional Court” as the court that would decide on the legality of the compulsory acquisition and the compensation to which the person is entitled. The Constitutional Court is a new court that would be created by clause 11 of the Bill (which would insert new sections 102A to 102E into the Constitution).
The Constitution provides for judgments of the High Court to be appealed to the Court of Appeal. However, clause 6 of the Bill (new sections 94A to 94D) states in the new section 94B that: “The Constitutional Court shall be the highest court and shall rank above all other courts”.
The Bill would not allow any appeal from the Constitutional Court, and the decision of the Constitutional Court on these, or any other matters, would be final.
As it would be a new court, the Constitutional Court judges would be appointed by the current President. However, as will be discussed later, the Bill is inexplicably silent on who would appoint those described as “Justices of Constitutional Court” in the new section 102C (1) (c).
Clause 3 would amend section 18 of the Constitution. Section 18 of the Constitution provides for the enforcement of the fundamental rights and freedoms to which every person in Botswana is entitled, under sections 3 to 16 of the Constitution, by giving any person who alleges that any provision of those sections has been contravened the right to apply to the High Court for redress.
Clause 3 would amend section 18 of the Constitution by replacing the High Court with the Constitutional Court as the court to which any application for redress of any contravention of the fundamental rights must be made.
Furthermore, clause 7(a) would amend section 95(1) of the Constitution by removing the jurisdiction of the High Court in respect of the enforcement of fundamental rights.
