Tshepiso Seth Ndzinge-Makhamisa (PhD)
As stated in Part 1 of this series, I firmly believe that the establishment of a Constitutional Court for Botswana is a necessary evolution in Botswana’s constitutional democracy. The Constitutional Amendment Bill that is currently before Parliament, and undergoing various rounds of consultation is a test of Botswana’s commitment to the ideals of its Second Republic.
However, the success of the proposed restructuring of the Country’s judicial system and creation of the Constitutional Court as the new apex court is dependent on the institutional design of the Court and its relationship with already existing structures. It is important to reflect on the proposed framework in the Constitutional Amendment Bill and whether it provides sufficient guard rails to protect the independence and jurisdiction of the court, and most importantly, whether the proposed framework will achieve the intended aims.
The Commonwealth Latimer House Principles of 2003 provide that:
“An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice.”
It is therefore clear that for the Constitutional Court to effectively serve Batswana, it must align with these principles, both in its establishment and its functioning.
The Constitutional Amendment Court Bill proposes, firstly, to remove the jurisdiction of the High Court to hear and determine constitutional matters arising from alleged infringements of rights contained in Botswana’s Bill of Rights (Section 3-16). I believe this may be misguided. In my respectful view, whilst I support the view that the Constitutional Court must be clothed with original and final jurisdiction on constitutional matters, this should not be at the expense of the High Court and Court of Appeal. There are at least two reasons for this.
Firstly, access to justice in Botswana remains a pressing issue. With the ever-widening economic inequalities, access to the judicial system is already difficult for many people. The risk, therefore, is that restricting constitutional litigation to the Constitutional Court may limit access for those who require constitutional protection the most. The economic realities of legal practice mean that, if left unchecked, access to the Constitutional Court could be dependent on financial means.
Secondly, the High Court and Court of Appeal, as presently constituted, have demonstrated considerable competent in adjudicating constitutional disputes and have produced with impactful jurisprudence, with some judgements heralded across the continent as groundbreaking. Maintaining their jurisdiction in constitutional matters would strengthen rather than undermine the constitutional framework.
The benefit of multiple layers in constitutional adjudication is twofold. Firstly, litigants should be able to approach the Constitutional Court (on leave) where a matter raises an issue of such exceptional public importance that it ought to be considered by the Constitutional Court immediately. Secondly, the Constitutional Court should serve as the final guardian where litigants have exhausted remedies within the judicial hierarchy. This, in my opinion enhances and strengthens the judicial system rather than creating one court that jealously guards its constitutional jurisdiction.
Secondly, with regards to judicial independence two further issues arise.
The first concerns the relationship between the Judicial Service Commission and the President with respect to the appointment of judges. The decision in Motumise was supposed to clarify the position, however, no legislative enactment followed that decision, The Constitutional Amendment Bill presented a valuable opportunity to entrench judicial appointments more firmly within an independent and impartial framework.
The second concern relates to judicial tenure. The proposed Section 102(d) does not appear to provide sufficient protection of tenure for judges of the Constitutional Court. Perhaps, a leaf may be taken from our neighbour South Africa where the judges of the Constitutional Court serve fixed renewable terms of twelve years. This, in my opinion, provides a balance between independence and the need for renewal.
Finally, if Botswana is indeed serious about strengthening the protection of human rights, it may be time, to reconsider the question of signing of Article 34(6) of the African Court on Human and Peoples Rights, which allows individuals and NGOS’s direct access to the African Court on Human and Peoples’ Rights. However, this is perhaps a debate for another day.
I re-iterate that the Constitutional Amendment Bill presents a unique constitutional moment for Botswana. It is not just about establishing a new court, but an opportunity to strengthen and solidify the institutional foundations of constitutional governance. The Constitutional Court can serve as the ultimate guardian of constitutional rights, whilst also reinforcing the current judicial framework.
Therefore, in my opinion, the Constitutional Court should not be conceived as an exclusive gatekeeper of constitutional litigation, but as the final safeguard of the rights and freedoms enshrined in this, or any other future constitution. As they say, the devil is in the details, and the success of the reform will depend on how its design reflects the constitutional values of a modern constitutional African democracy.
