The present Constitution of

Botswana Botswana (, ), officially the Republic of Botswana ( tn, Lefatshe la Botswana, label= Setswana, ), is a landlocked country in Southern Africa. Botswana is topographically flat, with approximately 70 percent of its territory being the Kal ...

commenced on September 30, 1966.

Background

Before colonial rule was established in Botswana, a traditional constitution - a body of laws known as - was used by tribal chiefs, or diKgosi, of the

Botswana people This article is about the demographic features of the population of Botswana, including population density, ethnicity, education level, health of the populace, economic status, religious affiliations and other aspects of the population. Botswa ...

. During the early years of the

Bechuanaland Protectorate The Bechuanaland Protectorate () was a protectorate established on 31 March 1885, by the United Kingdom of Great Britain and Ireland (later the United Kingdom of Great Britain and Northern Ireland) in Southern Africa. It became the Republic ...

, some non-Botswana also came to be ruled by these laws. Protectorate administrators kept elements, though not all, of this traditional constitution; much of it has lapsed today. In 1959, a Constitutional Committee of the Joint Advisory Council drew up the Protectorate's first formal constitution, which came into operation in 1960.Barry,, Morton,. ''Historical dictionary of Botswana''. Ramsay, Jeff,, Based on (work): Morton, Fred, 1939- (Fifth edition ed.). Lanham, Maryland. .

OCLC OCLC, Inc., doing business as OCLC, See also: is an American nonprofit cooperative organization "that provides shared technology services, original research, and community programs for its membership and the library community at large". It wa ...

1037884220 In 1963 consultations began for a second constitution which would confer self-government. The 1965 general election was held under this constitution, which was modelled on the Westminster system of

parliamentary democracy A parliamentary system, or parliamentarian democracy, is a system of democratic governance of a state (or subordinate entity) where the executive derives its democratic legitimacy from its ability to command the support ("confidence") of t ...

: there was a unicameral legislature; a prime minister and cabinet of five ministers responsible to the legislature; and a purely consultative

Ntlo ya Dikgosi The ''Ntlo ya Dikgosi'' ( Tswana for "House of Chiefs") in Botswana is an advisory body to the country's parliament. When Botswana achieved full

independence Independence is a condition of a person, nation, country, or state in which residents and population, or some portion thereof, exercise self-government, and usually sovereignty, over its territory. The opposite of independence is the stat ...

on 30 September 1966, the prime minister was replaced by a president elected by the legislature (renamed the

National Assembly In politics, a national assembly is either a unicameral legislature, the lower house of a bicameral legislature, or both houses of a bicameral legislature together. In the English language it generally means "an assembly composed of the r ...

), and given executive powers. A series of later amendments to the Constitution have increased the number of elected members of the National Assembly, and the size of the Ntlo ya Dikgosi. Other constitutional changes were made in 1994 and 1997.Poteete, Amy. (2018). Renegotiation of Executive Powers and Executive-Legislative Relations in Botswana.

Structure

The constitution is divided into 9 chapters, each detailing certain areas such as individual rights and the delegation of executive powers. # The Republic # Protection of Fundamental Rights and Freedoms of the Individual # Citizenship # The Executive # Parliament # The Judicature # The Public Service # Finance # Miscellaneous

The Republic

This section declares Botswana an independent nation as well as defines the public seal.

Protection of Fundamental Rights and Freedoms of the Individual

This section defines the rights of the citizens. It begins by stating that everyone is guaranteed rights regardless of race, creed, or sex. The rights are as follows: "(a) life, liberty, security of the person and the protection of the law; (b) freedom of conscience, of expression and of assembly and association; and (c) protection for the privacy of his or her home and other property and from deprivation of property without compensation, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.

The Executive

This section defines the executive branch including the President, Vice President, and Cabinet.

The President

The President is the chief executive of the state. The President is elected president by members of the National Assembly. These members state on the ballot who they would support for President if elected, and after election to the National Assembly vote for whomever they indicated they would elect as President. The President has the following requirements: (a) is a citizen of Botswana by birth or descent; (b) has attained the age of 30 years; and (c) is qualified to be elected as a Member of the National Assembly. The Presidents term is limited up to 10 years, or however long the President holds office in the National Assembly. The executive power of Botswana resides solely in the President. The President is also the commander of the armed forces. The president also has the power to pardon a person convicted of a crime.

The Vice President

The Vice President is chosen by the President from among the members of the National Assembly. The Vice President takes over for the President when the President is unable to fulfill his duties either because of illness, death, or other reasons. The Vice President is second-in-command to the President and carries out the missions of the President.

The Cabinet

This Cabinet is composed of the President, the Vice President and no more than six ministers who are appointed by the President from the National Assembly. The Ministers in the Cabinet are responsible for advising the President with respect to policy of the government.

Parliament

This section describes both the National Assembly as well as the Ntlo ya Dikgosi which together create the Parliament of Botswana.

National Assembly

The Parliament consists of the President and National Assembly. The president is a voting member of the National Assembly. There are an additional 57 elected members of the National Assembly. There is also a speaker of the Assembly who is elected by the members of the Assembly, but does not necessarily have to be a member of the assembly themselves. There is also a deputy speaker elected by the Assembly. In order for a person to be eligible to be a member of the Assembly they must: be a citizen of Botswana, be 18 years old, is registered to vote, and is able to speak and read in English. There are many conditions that disqualify a member from eligibility, most of these dealing with allegiance to other countries. Botswana is divided into the number of constituencies that they have members of parliament so that each district sends one member to the Assembly. People in Botswana are eligible to vote if they are: 18, a citizen, and have resided in Botswana for 12 consecutive months.

Ntlo ya Dikgosi

In addition to a parliament, Botswana also has a Ntlo ya Dikgosi. The Ntlo ya Dikgosi acts as an advisory body to the Parliament of Botswana. This body consists of 33-35 members. In order to be eligible to be a member one must be 21 years old and a citizen. There are similar disqualifying conditions for this body as there are for the National Assembly. The member is appointed for 5 year terms. No member may participate in party politics, and many members are tribal chiefs. This body possesses no legislative power, including approval or veto power, rather they advise the Parliament on bills and measures. A power the body does have is to summon members of the government to appear before it.

The Judicature

This section describes the varying parts of the judiciary in Botswana including the High Court, the Court of Appeal, and the Judicial Service Commission.

High Court

The High Court of Botswana acts as the supreme legal source, in which the court possesses unlimited original jurisdiction to hear any cases. The court has a Chief Judge as well as a number of other judges, in which the number is determined by the Parliament. The Chief Justice is appointed by the President, as well as all of the other Justices but these can be advised to the President by the Parliament. In order to be qualified to be a judge on this court one must have either been a judge, been an attorney, been a law professor with a law degree, or been a Chief Magistrate. Appointments to this court are until the person reaches the age of 70. The only other reason a judge would leave the high court is if the Parliament decides the person is no longer able to properly perform their duties. The High Court has authority to interpret the constitution. If there is disagreement on any interpretation, that disagreement is settled by the High Court.

Court of Appeals

The Court of Appeals has the right to hear any case in Botswana in which one party has appealed the decision found. This court consists of a President of the Court of appeals, a number of other judges, and the entirety of the High Court. Like the High Court, the President is appointed by the President as are the other judges, with the advice of Parliament. In order to be qualified a person must have been either a judge, attorney, or law professor. As is with the High Court a person is appointed until the age of 70, barring Parliament does not find them incapable during their tenure.

Judicial Service Commission

The Judicial Service Commission is created to help advise the President on judicial nominations. It consists of the Chief Justice, the President of the Court of Appeals, the Attorney-General, the Chairman of the Public Service Commission, a member of the Law Society nominated by the Law Society, and a person of integrity and experience who is not a legal practitioner appointed by the President.

The Public Service

This section details rules and regulations regarding public service. This section states anything not stated in the constitution or by an act of Parliament will be under the jurisdiction of the President. There will also be a Public Service Commission of 2-4 members serving 3 year terms. This commission hears all appeals of public servants who have been removed from their position and would like to return to it. If a person disagrees with the ruling of this commission they may appeal directly to the President. The President is allowed to appoint or remove people to or from: Ambassador, High Commissioner, Secretary to the Cabinet, Attorney-General, Director of Public Prosecutions, Permanent Secretary, Commissioner of Police, and f. any other superscale office. This section also establishes 5 year renewable terms for the Director of Public Prosecutions as well as establishes a 60 year age limit for the Director of Public Prosecutions and the Auditor-General. Finally, this section protects pre-existing pensions for people receiving pension before the creation of the Constitution.

Finance

This section describes the varying financial rules. It begins by setting up a Consolidation Fund in which all revenue made by the country will be combined into one fund. Parliament regulates the use of this fund. Contingency funds may also be created by Parliament in emergencies in order to make it easier to use funds outside of the Consolidation Fund. There is an Auditor General position who is accountable for the accounts of the country.

Miscellaneous

The final part of the Constitution details 3 main ideas. First, it establishes a process for a public servant to resign from their position. Second, it states a person can be reappointed to a public servant position unless explicitly not allowed by the Constitution or a law of Parliament. Third, it defines shortened versions of phrases used such as "Assembly" for the National Assembly.

Scholarly critiques of the Constitution

While the constitution has been relatively stable in terms of being the governing document, some scholars, including Gretchen Bauer, Druscilla Scribner, John Holm, have argued that the constitution does not adequately protect women or minorities. In Botswana, there have been movements in order to try and establish gender quotas in the constitution, so that women are more able to win seats in the

.Bauer, Gretchen, and Jennie E. Burnet. "Gender quotas, democracy, and women's representation in Africa: Some insights from democratic Botswana and autocratic Rwanda." ''Women's Studies International Forum''. Vol. 41. Pergamon, 2013. This is due to the county's

first-past-the-post In a first-past-the-post electoral system (FPTP or FPP), formally called single-member plurality voting (SMP) when used in single-member districts or informally choose-one voting in contrast to ranked voting, or score voting, voters cast the ...

electoral system, which makes it more difficult for women of any party to win seats. Although gender quota initiatives in the country have been largely ineffective, some scholars argue that they prove that the constitution has failed to account for the need of constitutional provisions protecting female representation. Botswana's constitution is noted for being extremely

gender neutral Gender neutrality (adjective form: gender-neutral), also known as gender-neutralism or the gender neutrality movement, is the idea that policies, language, and other social institutions (social structures or gender roles) should avoid distinguish ...

, with only one reference to sex in the entire document.Scribner, Druscilla, and Priscilla A. Lambert. "Constitutionalizing difference: A case study analysis of gender provisions in Botswana and South Africa." ''Politics & Gender'' 6.1 (2010): 37-61. Some argue that this is beneficial as to show gender equality; however, others point to this gender neutrality as acceptance of ''de facto''

discrimination Discrimination is the act of making unjustified distinctions between people based on the groups, classes, or other categories to which they belong or are perceived to belong. People may be discriminated on the basis of Racial discrimination, r ...

. Those who argue this state that women have to fight for laws in the negative, in that they have to get laws to allow them to do things that should already be granted to them in the constitution. Another criticism of the constitution is that it was written by the current, and so far only, ruling party in the country.Holm, John D. "Botswana: A paternalistic democracy." ''World Affairs'' 150.1 (1987): 21-30. The Bechuanaland Democratic party (BDP) was founded by

Seretse Khama Sir Seretse Goitsebeng Maphiri Khama, GCB, KBE (1 July 1921 – 13 July 1980) was a Motswana politician who served as the first President of Botswana, a post he held from 1966 to his death in 1980. Born into an influential royal fa ...

before Botswana was an

independent nation Independence is a condition of a person, nation, country, or state in which residents and population, or some portion thereof, exercise self-government, and usually sovereignty, over its territory. The opposite of independence is the statu ...

, and since the country's independence the BDP has been the only party to rule, although elected through democratic elections. Due to the continuous rule of this single party, many fear that the constitution in place unfairly biases the electorate toward the party and its supporters. This has also led to criticism about

class Class or The Class may refer to: Common uses not otherwise categorized * Class (biology), a taxonomic rank * Class (knowledge representation), a collection of individuals or objects * Class (philosophy), an analytical concept used differently ...

and ethnicity conflict. Some praise the constitution for its allowance of political competition.Solway, Jacqueline S. "Navigating the neutral state: Minority rights in Botswana." ''Journal of Southern African Studies'' 28.4 (2002): 711-729. Because the

is elected democratically by the people, it allows for minority representation in the Assembly. This is important because minority voices can be hidden in certain electoral systems, but some assert that the constitution of Botswana protects the voices of the minorities. Another argument that some scholars make is in reference to the power of the

President President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university * President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ...

.Molomo, Mpho G. "Democracy under siege: the Presidency and executive powers in Botswana." (2000). The constitution places a lot of power in the position of President, and as the country has had only one ruling party there is little checks in place on who becomes President and who is able to advise and consent to certain presidential actions. This has led some scholars to call for

direct election Direct election is a system of choosing political officeholders in which the voters directly cast ballots for the persons or political party that they desire to see elected. The method by which the winner or winners of a direct election are cho ...

s of the President so that the President is held more accountable by the people as well as by the

. Another criticism is the constitutions handling of

tribes The term tribe is used in many different contexts to refer to a category of human social group. The predominant worldwide usage of the term in English is in the discipline of anthropology. This definition is contested, in part due to confli ...

and

tribal law A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudina ...

.Nyati-Ramahobo, Lydia. "From a phone call to the high court: Wayeyi visibility and the Kamanakao Association's campaign for linguistic and cultural rights in Botswana." ''Journal of Southern African Studies'' 28.4 (2002): 685-709. The constitution supports the tribal system, including the

Ntlo ya Dikgosi The ''Ntlo ya Dikgosi'' ( Tswana for "House of Chiefs") in Botswana is an advisory body to the country's parliament. This argument states that the constitution should be amended to include an easier and fairer way to divide power among tribes, especially because the current divisions were created with the constitution in 1966. Jacqueline Solway, Mpho Molomo, and Lydia Nyati-Ramahobo, among other scholars, praise the constitution of Botswana for being extremely progressive for its time in its attempt to have gender and minority equality; however, there are scholars that argue that the Constitution requires significant work in order to be equal and fair.

References

External links

Constitution of Botswana in English
{{Constitutions of Africa 1966 in Botswana

Politics of Botswana 1966 documents 1966 in law