News

The establishment of a Constitutional Court has emerged as a pressing issue in Botswana’s legal and political discourse. Acting Dean of the Faculty of Social Sciences, Professor Tachilisa Balule, addressed the matter during a public lecture at the University of Botswana (UB), outlining both the potential benefits and challenges associated with creating such an institution.

Professor Balule argued that a Constitutional Court would serve as a specialised guardian of the Constitution to ensure consistency in constitutional interpretation and strengthening the protection of fundamental rights. He noted that constitutional questions often required expertise beyond the remit of general courts and that a dedicated body could provide greater clarity and uniformity in rulings.

“A Constitutional Court will act as a watchdog over the other arms of government, reinforcing constitutional supremacy,” he said, stressing its potential role in deepening democracy and upholding the rule of law.

He further observed that the current judicial framework had not always succeeded in adequately safeguarding certain rights or advancing constitutional development as reflected in a number of unsuccessful cases before the courts. According to Professor Balule, constitutional litigation often placed the judiciary in direct contest with the legislature or the executive, an institutional tension that a specialised Constitutional Court could help to manage more effectively.

At the same time, he cautioned against overlooking possible drawbacks. Professor Balule warned of the risk of judicial overreach, where judges might be drawn into policymaking processes, potentially disrupting the balance of power among the branches of government. He also emphasised the importance of establishing an independent commission, separate from the Office of the President, to oversee appointments and safeguard the court’s autonomy.

Furthermore, Professor Balule noted public concerns regarding the urgency of establishing a Constitutional Court ahead of the broader constitutional review process. He argued that while constitutional reform was necessary, it was often protracted and may not immediately yield substantive change. In contrast, the creation of a Constitutional Court could provide a more immediate institutional mechanism to strengthen the protection of human rights and promote constitutional supremacy.