PRESS STATEMENT ON THE NEED FOR CONSTITUTIONAL REVIEW 

The Constitution, laws and practices in Botswana should reflect minimum human rights standards

DITSHWANELO – The Botswana Centre for Human Rights continues to advocate for a review of the Constitution of Botswana because the Constitution is an important foundation of democratic principles and values.  Botswana’s Constitution is a creature of independence in 1966 and like Constitutions developed at that time, it provides for civil and political rights only.  This includes freedom of expression. It does not recognise economic, social and cultural rights, such as the right to shelter. 

As Botswana moves closer to 2016, it should be noted that the attainment of the goals of Vision 2016 is challenged by this gap within the guiding constitutional framework.  The goals of the national Vision include economic, cultural and social rights, which are not included in the Constitution, but which are articulated in Vision 2016 in principles such as transparency and accountability. 

DITSHWANELO believes that human rights are an essential requirement for a democratic society. A healthy democracy has structures for all sectors, including civil society, public sector and private sector to participate in decision-making processes.

The exercise of the freedom of expression is seen in the existence of public debate in society. A currently publicly debated issue is that of the powers of the President. In a functioning democracy, the powers of the President need to exist together with checks and balances. For this, the principles of accountability and transparency are essential ingredients. On 28 February 2005, DITSHWANELO stated that “In a functioning democracy, there needs to be transparency concerning the parameters of what falls within the public domain”. The decisions of both The High Court and the Court of Appeal in the recent case of Motswaledi vs Botswana Democratic Party, Seretse Khama Ian Khama, The Chairman Gaborone Centre Constituency Committee 2009 illustrated  that presidential immunity is provided in and protected by the Constitution. The Court of Appeal made reference to Professor Nsereko’s reasons for the existence of presidential immunity. ‘The need to protect the dignity of the office of the President (and) … to ensure that the President has as much freedom as possible in the due execution of the duties of his high and exacting office. It is assumed that court proceedings are likely to distract and preoccupy his mind: they are likely to embarrass him or hamper him in the due execution of those duties’. DITSHWANELO has called for and continues to call for a Constitutional Review process. A Constitution which is people-centred and framed within the context of a human rights-based approach to governance and development, provides the necessary limits on the exercise of power in a democracy. We therefore welcome recent media reports that President Khama is open to debating the principle of presidential immunity from prosecution.

In order to deepen our democracy, DITSHWANELO urges the Government of Botswana to consistently implement its international treaty obligations by domesticating their provisions into national or domestic law. For example, Botswana has committed herself to the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The Government is yet to create comprehensive domestic laws which are in line with these treaty provisions. Domestication of these into national law is required of countries after they have committed themselves to international treaties.  A consequence of non-domestication is that courts in Botswana are not obliged to give the ICCPR and CAT provisions any significant weight in cases which may be brought before them. This is what happened in the Ken Good case.  Due to these delays between ratification (written international commitment) and implementation of treaty provisions in domestic laws, DITSHWANELO is in favour of a review of the Constitution to reflect human rights practice. Written international commitment would then mean automatic national commitment and integration of these treaties into our own laws.

Botswana's Vision 2016 envisages an Open Democratic and Accountable Nation with open and transparent governance.  DITSHWANELO continues to urge the Government to take all necessary steps to make the aspirations of Vision 2016 a reality.  In the light of this, DITSHWANELO recommends that the Constitution of Botswana be reviewed to be consistent with Botswana’s advancement to the “next level of development” as was envisaged by His Excellency in his inaugural address of 1st April 2008.

9 October 2009
Gaborone

For more information please contact: DITSHWANELO – The Botswana Centre for Human Rights. Tel:  (00 267) 3906998 Fax: (00 267) 3907778 Email: admin.ditshwanelo@info.bw website: www.ditshwanelo.org.bw.