Article by Bryan Ramaphane
There are moments in a nation’s history when the law must speak louder than politics, louder than personalities, louder even than tradition. As Parliament debates the creation of a Constitutional Court, we must confront one uncomfortable truth: Botswana needs an arbiter in constitutional matters—one that is purpose-built, unwavering, and immune to the shifting winds of political goodwill.
This is not about abstract legal architecture. It is about ensuring that the fractures of our recent past never reopen. It is about making sure that the next crisis does not depend on the goodwill of whoever happens to be in office. Our current system has shown, again and again, that it cannot carry this burden.
THE DEMOCRATIC DEFICIT: 2019 AND 2024
Two election cycles have exposed a legal framework that too often protects procedure at the expense of democracy. Think back to the 2019 Election Petitions. Allegations of irregularities shook the nation. Batswana expected scrutiny, transparency, and resolution. Instead, the courts shut the door on jurisdictional and procedural grounds. The substance of the allegations never saw daylight, save for 1 case. A Constitutional Court, designed to prioritise constitutional values and the integrity of elections, would not have allowed democracy to be sacrificed at the altar of technicalities.
In 2024, the UDC sought only one thing: the right to observe voter registration. Something foundational. Something obvious in any genuine democracy. Yet the courts, applying a cramped interpretation of the Electoral Act, denied it. That decision laid bare a painful truth: our courts, though competent, are sometimes not equipped with the constitutional lens required to safeguard democratic participation. These moments were not failures of judges. They were failures of the system.
THE PITSENG CASE: A CRISIS OF DIGNITY
If the election cases exposed democratic fragility, the Pitseng Gaoberekwe case revealed something even deeper: our system’s ability to wound the vulnerable.
For years, the state refused to allow the late Mr. Gaoberekwe to be buried in his ancestral homeland in the CKGR. The High Court and Court of Appeal upheld this position, interpreting policy and administrative regulations as though they outweighed dignity, culture, and humanity. Those decisions revealed a judiciary operating without a dedicated guardian of the Bill of Rights.
Had a Constitutional Court existed, with its singular mandate to defend fundamental rights, the outcome might have been very different. And a family would not have had to beg for dignity.
SECURING THE FUTURE
Today, under the administration of President Boko, many of these wounds are being addressed. His government has embraced a human-rights-oriented posture, allowing the Gaoberekwe family to bury their loved one and opening avenues for greater electoral transparency. These are necessary corrections.
But benevolence is not a constitutional safeguard.
A president committed to justice is a blessing, but a system that protects rights regardless of leadership is a democracy. Botswana cannot depend on personalities; it must depend on institutions. A future administration could easily return to the rigidity, secrecy, and exclusion of the past. A Constitutional Court is not a luxury. It is the institutional lock that closes the door on those darker possibilities.
Botswana deserves better. This moment demands better. A Constitutional Court is not just advisable; it is urgent.
