1 hour agoA discussion of the Constitution Amendment Bill, 2025: the case for judicial independence

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 16thMarch 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 ofMokone v Attorney General and Othersas 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 11thJune 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.

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.

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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 theTuteladecision 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.

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