Staff Writer
University of Botswana don, Professor Tachilisa Balule, has stressed the need for the establishment of the Constitutional Court (ConCourt).
Professor Balule made the case for a ConCourt amidst growing national debate following government’s proposal to establish a Constitutional Court.
Making a presentation during a public lecture at the University of Botswana (UB) Library Auditorium on Monday, the legal scholar weighed in on whether Botswana needs a constitutional court.
Balule stated that the current judicial framework doesn’t sufficiently protect constitutional supremacy and fundamental rights.
Balule’s lecture comes in the wake of the publication of Bill No. 14 of 2025 on 4 July 2025, which seeks to amend the Constitution to create a specialised court dedicated to constitutional matters.
Speaking to the global context and constitutional supremacy, Balule explained that constitutional courts are widely recognised across the world as guardians of democracy, tasked with protecting constitutional supremacy and human rights. Originating from the ideas of Austrian legal theorist Hans Kelsen in the early 20th century, the model has since been adopted in Europe, Africa, Asia and other regions, he said.
Balule noted that such courts typically exercise powers, including abstract review of legislation, concrete review arising from litigation, and individual complaints procedures where citizens allege violations of constitutional rights.
Balule stressed that Botswana, since independence in 1966, has operated under a written constitution that guarantees civil and political rights such as the right to life, liberty, freedom of expression, association, and protection of the law.
He noted that, currently, constitutional enforcement powers lie with the High Court, with appeals handled by the Court of Appeal.
The core question, according to professor Balule, is whether these courts have consistently and adequately protected constitutional rights.
In his assessment, Balule pointed to what he described as judicial reluctance to decisively address constitutional questions, particularly through reliance on the doctrine of constitutional avoidance which was a principle allowing courts to resolve disputes without determining constitutional issues where possible. He referenced cases such as Mokone v Attorney General and Others, where the Court of Appeal declined to rule on the constitutionality of sedition laws, instead resolving the matter on procedural grounds.
Similarly, he stated that in disputes involving the Independent Electoral Commission(IEC) and the Umbrella for Democratic Change(UDC), the Court of Appeal avoided substantive constitutional interpretation on issues related to election transparency and voter registration monitoring.
Balule also criticised what he termed inconsistent constitutional interpretation.
He further noted that while Botswana courts have previously endorsed a “generous and purposive” approach notably in the landmark Attorney General v Dow case but later decisions such as Good v Attorney General and News Company Botswana v Water Utilities Corporation adopted a more restrictive reading, particularly in relation to international human rights standards and access to information.
“These cases,” he argued, “demonstrate a pattern of conservative judicial philosophy.
The lecturer further highlighted concerns over strict procedural formalism in election petitions. Citing Kono and Others v Lekhari and Others and subsequent 2019 election petition cases, Balule noted that courts dismissed petitions on technical grounds, including failure to file verifying affidavits, without addressing substantive electoral concerns.
While courts justified the strict approach on grounds of public interest and stability, he argued that democracy requires judicial willingness to interrogate whether elections are truly free, fair and credible.He thus, warned that procedural rigidity may undermine substantive justice.
Balule indicated that while Botswana’s judiciary has made significant strides in protecting rights such as freedom from discrimination and privacy, it has fallen short in consistently advancing constitutional supremacy and democratic accountability.
He described the proposed ConCourt as a welcome development that could provide a dedicated forum to safeguard rights, ensure uniform constitutional interpretation, and strengthen democratic governance.
However, he cautioned that the court’s legitimacy would depend heavily on its independence.
Historically, concerns have been raised over the composition of the Judicial Service Commission(JSC), which recommends judicial appointments to the president. The UB scholar argued that critics saw this body as currently dominated by presidential appointees, potentially undermining public confidence in judicial independence. Therefore,
Balule recommended reforms to the appointment process to insulate the proposed court from executive influence and to ensure that judges appointed possess demonstrable expertise in constitutional law.
On the question of timing,
Balule contended that waiting may delay urgently needed institutional reform.
He further suggested that a constitutional court could play a critical role in overseeing the legality and fairness of the review process itself, particularly in resolving contentious disputes that may arise.
The debate on the need for the establishment of the ConCourt has divided public opinion. However, the legal expert noted that the timing was ideal for Botswana to have a structure that would guide the much anticipated holistic constitutional review.
