Towards a People’s Constitution for
Botswana
By
*Moses Magadza
WINDHOEK – A
constitution developed through wide consultations with the people that it is intended
to serve is more likely to be a widely accepted and respected document than one
crafted behind the scenes and foisted onto the people. This seems to be the
pith or fulcrum of “Towards A People’s
Constitution for Botswana”, one of four recent books by Justice Oagile
Bethuel Key Dingake.
That
Dingake is a remarkable jurist, a brilliant scholar and a versatile writer is
incontestable. The former Judge of the High Court of Botswana and now a Justice
of the Residual Special Court of Sierra Leone, the Supreme Court of Papua New
Guinea and the Court of Appeal of Seychelles, has earned many top honorific
titles. Indeed, so many, that legal journalist Carmel Rickard, writing in a Judicial
Institute for Africa (JIFA) Newsletter, remarked that Dingake is one of those
learned people who pose real problems for those keen on titles!
She was right. Dingake’s
other titles include Doctor of Law (PhD), Professor and, lately, Chancellor.
This, after he was inaugurated Chancellor of ABM University College in his own
native country, Botswana in 2020. He holds, also, a double professorship from
two renowned universities: The University of Cape Town in South Africa, and
James Cook University in Australia.
“Towards A People’s Constitution for Botswana” is a short but packed
book. Only 103 pages. Written in very accessible English, one can say it is easy
on the mind. In fact, it is possible to
finish it in two or three days. This is a relief, given most lawyers’ notoriety
for writing in tongues.
Writing clearly and
simply is one of Dingake’s celebrated trademarks. Small wonder he has been
likened to the renowned British judge, Lord Denning; who happens to be one of
his mentors. In fact, as I indicated in one review of his other book, some lawyers
in Botswana and in the SADC region consider him Botswana’s Lord Denning. And
for good reason.
Yash Ghai, Emeritus
Professor of Law at the University of Hong Kong and Chair of the Constitution
of Kenya Review Commission (2001 -2004), wrote the foreword. In the foreword,
Ghai waxes lyrical about Dingake’s mastery of matters constitutional.
Ghai writes: “In this
excellent contribution to what he tells us is a debate already under way,
Justice Dingake while acknowledging the critical role of the current
constitution, … proposes its replacement by a very different form. Judge
Dingake, now a judge, also a former teacher and scholar, has proposed, in his
scholarly way, a transformative constitution”.
Ghai continues: “As an
African scholar who has played some role in the making of a few constitutions
in Africa (and other) states, I am very impressed by the way justice Dingake
presents his argument”.
I share the above
sentiments. It would seem from the introductory sections of this book that
Botswana is on the verge of a constitutional review. Such an undertaking may
take place early this year according to the announcement made by the President
of Botswana, His Excellency Mokgweetsi Eric Keabetswe Masisi. Judged from this vantage point, this publication by a
leading constitutional lawyer, judge and intellectual is timely.
Having read the book
with extreme assiduity, two major themes dominate this book. These are the need
to ensure that the people play an active and informed part in the formulation
of the revised constitution and the need for a transformative bill of rights.
In fact, with respect
to the constitutional review process Dingake warns that the process should be
truly people-driven and should not be hijacked by politicians if the
constitution is to endure and be a proud treasure of the people of Botswana.
In arguing for a
people-driven constitution Dingake places heavy reliance on Article 21, of the
Universal Declaration of Human Rights of 1948, Article 25 of the International
Covenant on Civil and Political Rights and Article 13(1) of the African Charter
on Human and People’s Rights, all of which emphasise the right of the people to
take part in the conduct of public affairs. He also calls for informed participation
that must be preceded by a comprehensive civic education similar to the one
undertaken in South Africa prior to the adoption of the 1994 democratic
constitution.
He writes: “Experience
demonstrates that effective and extensive public participation in constitution
making process contributes significantly to social cohesion and national
unity”.
Dingake advocates for
an inclusive process that is not hurried in which civil society, trade unions,
youth and women’s organizations play meaningful roles. He calls for a
constitution that respects all the elements of the rule of law such as
transparency, democracy, human rights, good governance, accountable government
and fairness.
He traces the above
values to the Magna Carta of 1225, in which liberty featured strongly. He
quotes as an inspiration the following excerpt from the Magna Carta: “No
freeman shall be seized, or imprisoned or dispossessed or outlawed, or in any
way destroyed; nor will we condemn him, nor will we commit him to prison except
by the legal judgment of his peers, or by the laws of the land”.
The above line
extolling the virtues of liberty permeates Justice Dingake’s thoughts on the
constitutional review process.
On the aspect of a
transformative bill of rights, Dingake calls for adoption and entrenchment of
socio-economic and cultural rights given that Botswana’s current constitution
only recognises civil and political rights. He also calls for the establishment
of a Human Rights Commission, a Gender Commission and other measures to promote
open democracy and an accountable government. He is also very strong on freedom
to access information subject only to limitations that are internationally
recognized.
In this book Dingake
acknowledges that although Botswana’s first constitution has served the country
well, the time has come to formulate a more progressive constitution that can guide
Botswana’s development trajectory and secure the welfare of the people, whilst
at the same time serving as a guide to other countries thinking of reviewing
their constitutions.
As a comparison the
book discusses in some detail the experiences of other countries in Southern
Africa that include Zambia and Zimbabwe. Dingake expresses the hope that
Botswana can avoid some pitfalls or deficiencies of the constitutional review
process in some African countries.
Having read this book
and learnt much about the best approach to constitution making, I recommend it
to politicians, members of civil society, trade unions, media practitioners and
members of the public in Africa and beyond. My only beef with this remarkable
book is with its modest title, which might give the arguably inaccurate notion
that its lessons and ideas are uniquely applicable only to Botswana, when the
author might have penned a global blueprint for making constitutions!
I am convinced that if
Batswana can read and implement some of the suggestions in this book, Botswana
will in due course have one of the most celebrated progressive constitutions in
our region and indeed in the whole world. Politicians, civil society in
Botswana, trade unions, women and youth formations and members of the public
would do well to get themselves a copy of this book as part of the preparations
of the constitutional review process Justice Dingake discusses in this book.
*Moses Magadza is the
winner of the SADC Media Award (2008), a freelance journalist and a PhD student
with research interests in framing of key populations by the media. He is based
in Windhoek, Namibia.
