Following its adoption by the National Assembly, the fate of the Constitution (Amendment) Bill, 2025, whose object is the amendment of the Constitution of Botswana, 1966 (hereinafter referred to as ‘the Constitution’) to establish the Constitutional Court, now lies with a referendum, after which the President may assent to it.
It seems, to me, to be settled that the issue is no longer so much whether Botswana needs a Constitutional Court, but whether it is the appropriate time to establish the Constitutional Court regard being had to the country’s economic situation.
In his public lecture at the University of Botswana on 16th March 2026, Professor Tachilisa Badala Balule argued that a Constitutional Court is integral in that it protects the democratic system of government and culture of human rights; it controls the validity of legislation and executive action and defends the normative supremacy of the constitution.
He argued that the High Court and Court of Appeal have hidden behind the doctrine of constitutional avoidance to avoid determining constitutional questions. He gave the case of Mokone v Attorney General and Others as an example, contending that the Court of Appeal declined to decide on the constitutionality of the impugned provisions of the Penal Code on the crime of sedition after finding that the warrant of arrest was issued unlawfully.
In his public lecture at the Institute of Labour & Employment Studies on 11th June 2026, Justice Professor Oagile Bethuel Key Dingake argued that the debate should no longer be whether or not Botswana needs a Constitutional Court, but rather about the appointment of judges, composition and jurisdiction of the Court.
He gave what he calls the five imperatives of the Constitutional Court as epistemic specialization; cleansing appellate delay; counter-majoritarian protection; the transformative potential and the promotion of a constitutional culture.
As regards the counter-majoritarian protection and transformative protential, he argued that since a Constitutional Court is insulated from political pressure, it is better suited to protect minorities and the vulnerable through creative interpretation of such existing rights as the right to life and dignity to impose positive duties on the state in such areas as health care and shelter.
Although there are still some dissenting views regarding the need for a Constitutional Court, it seems, to me, more worthwhile to reconcile ourselves with the fact that its establishment is imminent, and to rather focus on discussing its proposed jurisdiction and composition, especially with respect to the doctrine of judicial independence.
In this article, which is part 1 of this series, we discuss the Constitution Amendment Bill, 2025, specifically focusing on the provisions relating to the Constitutional Court to the extent they implicate on judicial independence.
We start with the Court’s jurisdiction. In terms of section 11 of the Constitution (Amendment) Bill, 2025, the Constitution shall be amended by inserting section 102(B) (3) (d) to provide that the Constitutional Court shall have original and final jurisdiction to hear and determine any application or question arising out of a matter involving the enforcement of fundamental rights as contained in sections 3 to 16 of the Constitution or in any other law.
In terms of section 11 of the Constitution (Amendment) Bill, 2025, the Constitution shall be amended by inserting section 102(B) (7) which provides that the Rules of Court shall allow a person to, in the interests of justice and with or without leave of the Court, bring a constitutional matter directly to the Constitutional Court; appeal directly to the Constitutional Court from any other court and appear as a friend of the Court.
These are welcome provisions in that they, in line with the Tutela decision by the High Court of Colombia, empower victims of human right and/or constitutional violations to have easy and less expensive access to the Court.
In our view, this is, however, negated by section 7 of the Constitution (Amendment) Bill, 2025 which amends section 95 of the Constitution to provide that the High Court shall not have jurisdiction to hear and determine any application or question arising out of a matter involving the enforcement or securing the enforcement of fundamental rights as contained in section 3 to 16 of the Constitution or any other law.
The negation is further achieved by substituting for the words ‘High Court’, the words ‘Constitutional Court’ at sections 8(1) (b) (ii); 18; 69 and 75 of the Constitution, the effect of which takes away the High Court’s jurisdiction to hear and determine any application or question arising out of a matter involving the enforcement or securing the enforcement of fundamental rights as contained in section 3 to 16 of the Constitution or any other law.
It ought to be noted, however, that in terms of section 14 of the Constitution (Amendment) Bill, 2025, the Constitution shall be amended by substituting for section 105 a new section which provides for referral by subordinate courts to the High Court or the Constitutional Court of cases involving interpretation of the Constitution.
Further that, in terms of section 15 of the Constitution (Amendment) Bill, 2025, the Constitution shall be amended by substituting for section 106 a new section which provides for appeal as of right to the Constitutional Court from any decision of the High Court which involves the interpretation of the Constitution.
While this does not necessarily implicate on judicial independence, we think that the High Court, which is ordinarily more accessible than the Constitutional Court, should retain jurisdiction for fundamental rights and constitutional matters, but there should be provision for direct access to the Constitutional Court in exceptional circumstances as is the case in South Africa.
We now deal with the appointment of judges and composition of the proposed Constitutional Court. In terms of section 6 of the Constitution (Amendment) Bill, 2025, the Constitution shall be amended by inserting section 94 C in terms of which there shall continue to be a Chief Justice, as the Head of the Judiciary, appointed by the President.
In terms of section 6 of the Constitution (Amendment) Bill, 2025, the Constitution shall be amended by inserting section 94 D in terms of which there shall be a Deputy Chief Justice appointed by the President.
In our view, the President’s power to appoint the Chief Justice and Deputy Chief Justice, without acting on the advise of the Judicial Service Commission (JSC), is a threat to independence of the judiciary in that because the President is a politician his appointment may be influenced by political considerations, making his appointees susceptible to political influence.
In terms of section 174 (3) of the Constitution of the Republic of South Africa, 1996, the President appoints the President and Deputy President of the Constitutional Court after consulting the JSC and the leaders of parties represented in the National Assembly and appoints the Chief Justice and Deputy Chief Justice after consulting the JSC.
In our view, Botswana should consider adopting the South African model for appointment of the Chief Justice and Deputy Chief Justice in that although the ultimate power of appointment for the Chief Justice and Deputy Chief Justice lies with the President, he can only do so after consulting the JSC.
In terms of section 11 of the Constitution (Amendment) Bill, 2025, the Constitution shall be amended by inserting section 102 C (1) (d) in terms of which the President, acting with the advise of the JSC, may appoint judges of the Constitutional Court for a limited period as required.
That, in appointing justices of the Constitutional Court, the President is enjoined to act with the advise of the JSC does not, in our view, cure the situation. This is because in terms of section 12 of the Constitution (Amendment) Bill, 2025, section 103(1) of the Constitution shall be amended by substituting for the section a new section which provides that members of the JSC shall be a retired judge of the High Court as Chairperson; the Chief Justice; the Deputy Chief Justice; the President of the Court of Appeal; the Attorney General; the Chairman of the Public Service Commission; a Member of the Law Society of Botswana nominated by the Law Society and a person of integrity and experience not being a legal practitioner appointed by the President.
In terms of this provision, all members of the JSC but for the Member of the Law Society of Botswana are appointees of the President, something which, in our view, may compromise judicial independence in that the president’s appointees may, in appointing judges and justices, be influenced by the President’s preferences in order to protect their jobs or appointments.
In terms of section 174 (4) of the Constitution of the Republic of South Africa, 1996, the President appoints other judges of the Constitutional Court after consulting the President of the Constitutional Court and the leaders of parties represented in the National Assembly.
We submit, with respect, that the South African model promotes judicial independence in that, before appointing Constitutional Court judges, the President consults the President of the Constitutional Court and the leaders of parties represented in the National Assembly.
In terms of section 178 of the Constitution of the Republic of South Africa, 1996, the JSC membership includes such none presidential appointees as one teacher of law designated by teachers of law at South African universities; six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties represented in the Assembly and four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces.
In our view, judicial independence could be enhanced if Botswana borrows from the South African model and reconstitutes the JSC membership such that it includes a lecturer of law designated by lecturers of law from Botswana universities; persons designated by the National Assembly from among its members, at least half of whom must be members of opposition parties represented in the Assembly; and a designated number of members from district councils nominated by local councils, at least half of whom must be members of opposition parties. Candidates should also be subjected to public interviews so that they are subjected to public scrutiny, with a provision for objections by members of the public, civil society and the Law Society of Botswana.
Thankfully, in terms of section 11 of the Constitution (Amendment) Bill, 2025, the Constitution shall be amended by inserting section 102 B (4) in terms of which an Act of Parliament may prescribe for the exercise of the jurisdiction of the Constitutional Court.
If Batswana vote for the establishment of the Constitutional Court through the anticipated referendum, following which the President is likely to assent to it, one hopes that the National Assembly will, thereafter, enact the Constitutional Court Act or the Superior Courts Act which will deal with, inter alia, issues of judicial independence arising from the public consultations and debates leading up to the referendum.