A law academic from the University of Botswana has publicly supported government plans to establish a Constitutional Court before the country begins a comprehensive Constitutional Review. The academic argues that the current judicial structure has not consistently protected fundamental rights and has sometimes avoided making decisive rulings on important constitutional questions. Speaking during a public lecture on Monday, Associate Professor Tachilisa Balule said Botswana needs a specialized court that focuses entirely on constitutional matters. He explained that while existing courts such as the High Court and the Court of Appeal have delivered strong judgments in certain areas, they have also failed to address some critical legal issues that affect democratic rights. His remarks have added momentum to the ongoing national debate about judicial reform and the role of constitutional oversight in Botswana.
Professor Balule noted that the current judiciary has occasionally taken a cautious and conservative approach when dealing with constitutional cases. According to his analysis, this approach has allowed some colonial era laws to remain in place despite growing concerns about their compatibility with modern democratic principles. He pointed out that courts sometimes avoid making definitive constitutional rulings, which prevents the law from evolving to reflect contemporary standards of justice and human rights. In his lecture, he described this pattern as a weakness within Botswana’s constitutional jurisprudence. He emphasized that a strong constitutional system requires courts that are willing to interpret and develop the Constitution in a way that protects citizens’ rights and strengthens democratic institutions.
One of the key examples cited by Professor Balule was the handling of sedition laws by the judiciary. He referred to the Mokone case, where the Court of Appeal declined to rule directly on the constitutionality of sedition provisions. According to him, this decision left unresolved questions about whether such laws align with constitutional protections for freedom of expression. He argued that cases involving fundamental rights should receive clear constitutional interpretation so that the public can understand the limits of state power. When courts avoid these decisions, outdated or restrictive laws may remain active without proper constitutional scrutiny. In his view, the absence of firm rulings weakens the ability of the Constitution to guide the development of Botswana’s legal system.
Professor Balule also raised concerns about the way electoral disputes have been handled in the past. He noted that some election petitions have been dismissed on technical grounds rather than being examined on their constitutional merits. According to him, issues related to elections directly affect the right of citizens to participate in democratic processes. When courts rely heavily on procedural technicalities, they risk overlooking the broader constitutional principles involved in such disputes. He stressed that courts should prioritize the protection of democratic rights, including the right to free and fair elections. This concern, he said, demonstrates why Botswana would benefit from a court dedicated specifically to constitutional interpretation.
The professor’s lecture came at a time when the government has already taken concrete steps toward judicial reform. In July 2025, the government published a bill proposing the establishment of a specialist Constitutional Court that would handle all constitutional questions in the country. The proposed court would focus on matters related to the interpretation and enforcement of the Constitution. Professor Balule described this proposal as a very welcome development that could correct what he called a weak record of rights protection in Botswana’s legal history. He believes a specialized court would encourage clearer and more consistent decisions on constitutional issues. Such a court could also strengthen public confidence in the legal system.
Despite his support for the proposal, Professor Balule warned that the credibility of the new court would depend heavily on how its judges are appointed. He argued that the appointment process must be protected from excessive influence by the executive branch of government. According to him, judicial independence is essential if the Constitutional Court is to earn public trust and maintain its authority. He recommended that the proposed legislation be amended to ensure that judges appointed to the court possess strong expertise in constitutional law. Specialist knowledge, he said, would ensure that the court delivers well reasoned judgments on complex constitutional matters.
During the lecture, Professor Balule also addressed concerns raised by critics who fear that a Constitutional Court could eventually abolish the death penalty in Botswana. He rejected this argument and explained that capital punishment is currently provided for within the Constitution itself. Because the role of a Constitutional Court is to interpret and uphold the Constitution, he argued that the court cannot simply invalidate a provision that is clearly written into the constitutional framework. In his view, fears that the court would automatically eliminate the death penalty are misplaced. Instead, the court would focus on ensuring that constitutional provisions are applied correctly and consistently within the legal system.
Professor Balule also responded to calls from some quarters to delay the creation of a Constitutional Court until after a comprehensive Constitutional Review has been completed. He argued that such a review process would take significant time and could involve complex national consultations. Waiting until that process concludes, he said, would leave existing rights protection mechanisms unchanged for many years. In the meantime, important constitutional questions would continue to be handled within the current judicial structure. Establishing a Constitutional Court now would provide an immediate mechanism for strengthening constitutional oversight. The court could also play a crucial role in ensuring that any future constitutional reform process remains legally sound and fair.
The debate over Botswana’s constitutional future continues to grow as legal scholars, policymakers and citizens examine ways to strengthen democratic institutions. Professor Balule’s lecture highlights the importance of building a legal system that actively protects fundamental rights and encourages the development of constitutional law. His support for a Constitutional Court reflects broader concerns about how constitutional disputes should be handled in a modern democracy. As the government’s proposed legislation moves forward, discussions about judicial independence, legal expertise and institutional design will likely shape the final structure of the court. The establishment of a Constitutional Court could mark a significant step toward strengthening Botswana’s legal framework and ensuring that constitutional principles remain at the center of governance.
