The Botswana Council of Non-Governmental Organizations (BOCONGO) has voiced serious reservations about the proposed Constitutional Court bill, cautioning that it appears to be largely a “copy-and-paste” from South Africa’s constitution.
As the umbrella body representing NGOs across the country, BOCONGO emphasized the need for a thorough public understanding of the bill. Citizens must be well-informed to decide whether this legislation should become law.
The bill is expected to ignite a fierce referendum campaign, with government and opponents locked in debate ahead of a national vote.
“It is essential that citizens are made aware of the importance of voting at the referendum because the result will be decided by a simple majority of those that vote. There is no requirement that at least a certain percentage of registered voters must vote at the referendum for the result to be valid,” BOCONGO stressed in a detailed discussion paper.
The NGO warns that the referendum’s design could allow the bill to pass with the support of only a small fraction of registered voters, if overall turnout is low.
Challenging the government’s portrayal of the new court as a universal safeguard against human rights abuses, BOCONGO argued that protecting human rights and upholding the rule of law do not hinge on having a Constitutional Court.
“A Constitutional Court is not a panacea, it will only be as good as the legal framework which establishes it and the independence, integrity and the quality of judges appointed to that court,” the council stated.
The discussion paper notes that the bill does not introduce any new human rights protections beyond shifting which court will handle related cases. It raises concerns about the uncertainty the bill could sow by removing the High Court’s jurisdiction on human rights matters, potentially disrupting the efficiency of the court system.
The bill also leaves unclear the full scope and powers of the Constitutional Court, which would be the sole authority on human rights, election disputes, and determining whether an issue connects to constitutional questions.
In light of these issues, BOCONGO insists voters deserve a clear, honest explanation of what the bill entails and the nature of the court it would establish, so they can cast informed votes.
“The importance of voting at the referendum must also be emphasized because the referendum does not require more than 50% of all registered voters to approve the bill, only more than 50% of those who vote at the referendum,” the paper reads.
The publication further criticizes the bill for making the Constitutional Court the final and only arbiter on human rights matters, with no path to appeal.
“The decision of the Con-Court on any matter it decides will be final. It is concerning that the Constitutional Court would have both original jurisdiction (to hear and determine a matter in the first instance) and final jurisdiction (there would be no appeal to the Court of Appeal or any other court,” it states.
The bill could also create confusion by forcing every case to start with deciding whether it involves a human rights issue like the right to life or liberty, before proceeding.
Another point of contention is the bill’s silence on quorum requirements. It implies that a single Constitutional Court judge could hear a case. BOCONGO contrasts this with South Africa’s Constitutional Court, which mandates at least eight judges to hear matters.
The paper warns that excluding the High Court from fundamental rights cases would slow justice, as the Constitutional Court must first determine whether a case involves human rights before addressing its substance.
With these concerns laid bare, BOCONGO calls for voters to be fully briefed on what they’re deciding before stepping into the referendum booth.