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Makopo Law Office, Plot 15043, Gaborone West, Phase 1, Gaborone (2026)

22/04/2026

JURISDICTIONAL HOGGING BY THE PROPOSED CONSTITUTIONAL COURT AND THE EROSION OF HIERARCHICAL JUSTICE

In its current Constitutional form, Section 95(1) reads as follows:-

“There shall be for Botswana a High Court which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.”

Clause 7 of the Bill proposes this:

“Section 95 of the Constitution is amended by - (a) substituting for subsection (1) the following new subsection - “(1) There shall be for Botswana a High Court which shall have original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law:

Provided that the High Court shall not have jurisdiction to hear and determine any application or question arsing out of a matter involving the entorcement or securing the enforcement of fundamental rights as contained in sections 3 to 1 6 of the Constitution or in any other law.”

This proviso fences off fundamental rights enforcement for the Constitutional Court alone. A proviso is basically the fine print. The part that says ‘yes, this rule applies, but only if…’

WHERE IT HELPS

Picture a criminal trial continuing even after the accused asks for legal representation, but the court denies it. Under this proviso, the litigant could petition the Constitutional Court mid‑trial, securing intervention before conviction. That safeguard ensures fair trial rights are protected in real time, before disaster strikes.

WHERE IT HURTS
Today, a litigant at the High Court can challenge a mid‑trial decision that touches on aspects of fundamental rights such as a fair trial right by seeking leave or permission to appeal to the Court of Appeal for intervention. If leave is refused, intervention can be sought from the Court of Appeal itself. This means the High Court would have ventilated on this specific bill of rights issue in the first instance, made its observations and ruled on the subject. It’s ruling can still be tested at the apex in the form of the Court of Appeal.

With this proviso, however, both the High Court and Court of Appeal are completely cut out. If the jurisdiction of the High Court is cut out ab initio(from the outset) to enforce fundamental rights, it means it is not the forum to even hear( in a fully-fledged sense) a litigant who insists on seeking legal representation in the first place.

This appears to suggest that if you ask for legal representation and the High Court refuses, that refusal is not an appealable decision in the ordinary sense. It is treated instead as an alleged infringement that must be reported directly to the Constitutional Court. In effect, the High Court never had authority to weigh the matter, so we cannot even speak of its refusal as a decision subject to appeal. The ladder does not begin at the bottom rung. The litigant is catapulted straight into the apex arena, where refusal leaves them stuck upon arrival.

Wouldn’t you rather fully place the matter before the High Court first, go through the Court of Appeal second, with its added scrutiny, before exhausting your last chance at the apex? That is the safeguard the Bill dismantles. It collapses layered justice into a single loaded leap!

Elsewhere in the Bill, Clause 15 proposes the new section 106 by laying down further authority for bypassing the Court of Appeal. It says:

“An appeal shall lie as of right to the Constitutional Court from any decision of the High Court which involves the interpretation of this Constitution.”

That means even in non- bill of rights cases where the High court may retain original jurisdiction (if we read the proviso under clause 7 literally), you jump straight from the High Court to the Constitutional Court, ignoring the Court of Appeal entirely.

Another dilemma here is that while direct access to the Constitutional Court ensures constitutional questions are settled quickly by the apex authority, it also sidelines the Court of Appeal, and therefore removes an important layer of scrutiny in our system of justice. The Constitutional Court should supplement an already existing ideal and not haemorrhage or remove from it.

ASSUMPTION OF URGENCY BY DEFAULT

By fast‑tracking Bill of Rights issues and constitutional interpretation appeals directly to the ConCourt, the Bill appears to assume that all constitutional matters are inherently urgent and cannot “queue” like other cases. But urgency is a question of fact and evidence, not assumption. The body of judicial precedence on urgent applications remains intact in this jurisdiction and has not been shown to be lacking. There is no general presumption that any issue is urgent. Urgency is always demonstrated. What the Bill in fact does is to introduce a new criterion for urgency called constitutionalism . It treats constitutional matters as urgent by default.

Every court in the hierarchy already has the power to grant relief when urgency is demonstrated. If a litigant shows urgency at any stage (High Court, Court of Appeal, or Constitutional Court )that forum should act. There’s no need to escalate an urgent matter to the apex as if it alone can determine urgency. Keep the hierarchy intact, and let litigants demonstrate why they urgently need the next step in the ladder to hear them urgently.

The nice thing about the hierarchy is that if urgency is refused at one rung, that refusal itself can be appealed. But if the Constitutional Court is made the first and last stop, a refusal there leaves the litigant stuck upon arrival, with no further recourse.

CONCLUSION

Fast justice sounds good, but by catapulting constitutional matters straight to the apex, the Bill trades expediency for depth. Urgency should be proven, not presumed and relief should come from whichever rung the case reaches first.

Would you prefer one or two strikes at constitutional justice, or three full strikes where the traditional hierarchy is followed?

✍️: Motlamedi Makopo
(Attorney‑at‑Law, for better or worse.)

Motlamedi is a litigation and advocacy practitioner who has appeared before Botswana’s major courts. His commentary is shaped by a trial lawyer’s lens and is focused on how cases move through the system, how rights are implicated in practice, and how judicial architecture affects everyday justice.

27/02/2026

The idea that a Constitutional Court is needed to supervise or guide a future holistic constitutional review process is incomprehensible and strange. A constitutional review is a legislative process reserved purely for Parliament. Parliament reviews,debates, drafts, and passes laws. A future Constitutional Court will not be an extension of the legislative arm of government. The judiciary interprets law, it does not supervise Parliament.

27/02/2026

Unless you can demonstrate a constitutional right that forces government to distribute resources evenly, you can’t expect the Court to order a road in your village. Separation of powers still applies.

The judiciary will not poke its nose into the development agenda of the government of the day.

Courts don’t build, they interpret.

24/02/2026

THE HOLLOW SUPREMACY OF THE PROPOSED CONSTITUTIONAL COURT

The Bill proposes Section 94B: “The Constitutional Court shall be the highest court and rank above all other courts.”

The memorandum confirms the intent: “The object of the Bill is to establish the Constitutional Court… as the special court for all questions Constitutional.”

This means while it will be the biggest Court in the land, we all can’t reach it anyway because it is subject‑matter specific. Supremacy without reach is hollow. Justice requires hierarchy, not rivalry.

Why rank it above all courts if not all cases can reach it?

23/02/2026

In Botswana, the death penalty is entrenched as one of the explicit exceptions to the right to life. Courts, whether the High Court today or a future Constitutional Court, interpret and apply the written Constitution. They cannot declare unconstitutional what the Constitution itself authorizes.

Under apartheid, South African judges could not strike down racist laws because the Constitution itself entrenched them!

22/02/2026

(3) THREE TROUBLING FEATURES IN THE CONSTITUTIONAL AMENDMENT BILL, AND HOW TO FIX THEM (A THREE‑PART SERIES)

Much of the debate around the Constitutional Amendment Bill No. 14 of 2025 has been politically charged. My concern is narrower: the Bill’s treatment of our courts and the implications on everyday justice. This essay is not about politics. It is about clarity, coherence, and solutions.

PART 1:

THE HOLLOW SUPREMACY OF THE PROPOSED CONSTITUTIONAL COURT

At clause 6, which proposes a section 94B among others, the Bill says: “The Constitutional Court shall be the highest court and rank above all other courts.” That’s a blanket declaration of supremacy.

The memorandum introducing the Bill confirms the narrow intent by stating: “The object of the Bill is to amend the Constitution to establish the Constitutional Court as part of the judicial system of Botswana and dress it with the necessary powers to carry out the mandate of being the special court for all questions Constitutional.”

The paradox is obvious: a court crowned supreme across the judiciary, but shackled to a niche jurisdiction. The Constitutional Court is supreme in spirit, but the Court of Appeal remains supreme in function for all non‑constitutional disputes like contracts, civil wrongs, criminal cases, family, commercial law.

WHY IS THIS PROBLEMATIC?

You end up with two “highest courts”. One for constitutional matters, one for everything else.This creates a dual monarchy. Two bosses in one kingdom. One specialised, one generalist. And when cases arrive layered with both constitutional and non‑constitutional questions, litigants are caught between two thrones. Who rules? Who yields? The Bill is silent.

In Setswana we may as well say: “ntlo e e nang le dikarolo tse pedi tsa borena e a gagaba”. A house with two thrones stumbles. The Bill has created exactly that: a household with two heads. The father, declared supreme, only entertains certain disputes and leaves the rest to the mother to fend for herself.

Consider these examples:

• Criminal trial: An accused challenges evidence under the Criminal Procedure and Evidence Act, but also claims a fair trial violation.
• Land dispute: A title conflict under the Deeds Registry Act collides with the right to property.
• Protest law: A statute passed without quorum criminalizes peaceful protest — ordinary constitutional structural invalidity meets bill of rights infringement.

On paper, adding another forum looks like extending the judicial ladder. In practice, it rations access by cause of action. Constitutional questions enjoy the full climb to the apex. General law disputes are capped at the Court of Appeal. Two litigants, both citizens, both seeking justice, but only one is allowed to reach the top. That is not equal protection and access, it is selective justice.

We are taught from the first week of law school that the Constitution is supreme, and all law must reflect its spirit and purport. Yet here, the court built on that creed is supreme only in rhetoric, not in operation. Supremacy without reach is hollow; justice requires hierarchy, not rivalry.

CLAUSE 102B(3)(i): THE FINE PRINT

Clause 102B(3)(i) is the little crack in the door that hints at escalation of general law matters into the Constitutional Court. It says the Court may decide “any other matter” if it grants leave to appeal on the ground that the case raises a point of law of general public importance.

That plain interpretation is striking: even a divorce case, if it touches on a nationally significant legal principle, could be escalated to the apex. But the catch is access is conditional, not guaranteed. You don’t get to knock at the highest end of the judiciary unless you persuade the Constitutional Court that your matter rises to the level of “general public importance.”

Imagine a divorce case where the dispute is over custody. On the surface, it’s a private family law matter, ordinarily capped at the Court of Appeal. But suppose the custody dispute raises a broader issue — for instance, whether Botswana’s family law adequately protects parental rights in a given situation. Suddenly, the case is no longer just about two parents; it touches on a principle of national significance. Under clause 102B(3)(i), the Constitutional Court could grant leave to hear the appeal, not because it is a constitutional rights case per se, but because it raises a principle of national significance.

We also now know that the proposed section 102B(3)(c) says: “The Constitutional Court shall make a final determination on whether a matter is a constitutional matter or whether an issue is connected with a constitutional matter.”

On paper, this looks like clarity. In practice, it means that whenever an ordinary court is seized with a case and a party raises the question, “Does this have constitutional inroads?”, the court must pause its proceedings and yield to the Constitutional Court to determine jurisdiction before continuing.

That pause is not harmless. It introduces delays and backlog into a system already stifled. Instead of streamlining justice, it risks clogging it. Every time a constitutional shadow is cast, proceedings stall until the apex court decides whether it will take the matter. This is not efficiency; it is procedural detour.

But where the Constitutional Court is meant to be the final appellate station anyway, then this proposed section is unnecessary. All cases will be treated as valid before the courts they originate in. Constitutional questions can be raised, argued, and decided at those levels, with the Constitutional Court correcting or affirming on appeal. That way:

• Justice flows without interruption — no procedural detours mid‑trial.
• Costs are contained — no duplication of arguments or wasted resources.
• Hierarchy is respected — the apex court still has the last word, but only after the case has been fully ventilated.

DRAFTING FIX

If you are supreme in hierarchy, you must be supreme in handling cases. The fix is simple:

• Maintain the ladder: High Court → Court of Appeal → Constitutional Court.
• Peg the Constitutional Court at the apex, receiving appeals from the Court of Appeal.
• Rename it if necessary — Supreme Court of Appeal — and let the hierarchy breathe.

Proposed Clause 94B (Revised):

1. The Constitutional Court shall be the highest court in the Republic and shall rank above the Court of Appeal and the High Court.
2. The Constitutional Court shall exercise appellate jurisdiction over all matters determined by the Court of Appeal, including constitutional and non‑constitutional questions.
3. The Court of Appeal shall continue to exercise appellate jurisdiction over decisions of the High Court, subject to the appellate authority of the Constitutional Court.
4. For avoidance of doubt, the hierarchy of courts shall be: High Court → Court of Appeal → Constitutional Court.
5. The Chief Justice may prescribe procedures for appeals to the Constitutional Court, provided that such procedures shall not derogate from its supremacy as the final court of appeal.

Tota la reng ne banna?

✍️: Motlamedi Makopo
(Attorney‑at‑Law, for better or worse.)

Motlamedi is a litigation and advocacy practitioner who has appeared before Botswana’s major courts. His commentary is shaped by a trial lawyer’s lens and is focused on how cases move through the system, how rights are implicated in practice, and how judicial architecture affects everyday justice.

Look out for Part 2 👉: JURISDICTIONAL HOGGING & STIFLING JUSTICE BY JUMPING THE LADDER

09/01/2025

I DISAGREE WITH TODAY’S JUDGMENT BY THE COURT OF APPEAL ON THE ROLES OF THE HIGH COURT AND COURT OF APPEAL IN THE SPECIFIC SITUATION OF THE FORMER PS. HERE’S WHY:

I watched the delivery of the judgment in real time on BTV regarding the application for expedited appeal launched against the High Court's declaration of partiality in the Court of Appeal concerning the former Permanent Secretary. The judgment certainly provides essential insights into the jurisdictional dynamics between the courts.

However, while I recognize the importance of the judgment in clarifying certain legal principles, I must respectfully disagree with the underlying notion that this is a matter of "who is bigger than whom" in the judicial hierarchy.

The emphasis on the Court of Appeal's superiority, as derived from the highlighted sections of both the Court of Appeal Act and the Constitution, suggests a restrictive interpretation that may come at the expense of protecting constitutionally guaranteed fair- trial rights and ensuring fairness in judicial proceedings. Here are some points to consider:

1. Final Decisions and the Absurdity of Self-Review:

There is a reason why you cannot appeal a decision of the High Court to the High Court itself. The idea that the Court of Appeal should review allegations of its own bias after it has concluded a case is somewhat farcical. This scenario creates an inherent conflict of interest and undermines the impartiality that is essential in judicial proceedings. It is counterproductive to expect the very institution accused of bias to potentially adjudicate its own proceedings on the very bias it is accused of.

2. Mutual Responsibility:

The relationship between the High Court and the Court of Appeal is not one of competition but rather a shared responsibility to uphold the rule of law and protect the rights of individuals. Both courts have vital roles to play in ensuring justice is served.

3. Importance of Judicial Accountability:

Declaring flaws in constitutional rights within the appellate process is critical for public confidence in the judiciary. If the courts operate solely under the premise of hierarchical superiority, there may be instances where legitimate concerns about fairness go unaddressed. The integrity of our legal system relies on the ability of courts to hold each other accountable while working collaboratively towards justice.

CONCLUSION:
I appreciate the complexities the judgment introduces, as it helps clarify the powers and limitations of each court. However, it appears to me based on a rigid idea of hierarchy that could stifle the flow of constitutionally based assessments on the conduct of the Court of Appeal.

09/01/2025

Time for Constitutional Court of Appeal maybe?😂

09/01/2025

FROM COURT OF APPEAL TO HIGH COURT AND BACK: UNDERSTANDING THE LIMITATIONS

It is essential to clarify the nature of the High Court's involvement in this context.

1. Jurisdiction of the High Court:

When the High Court addresses a case involving constitutional matters, it typically focuses on the conduct of the judiciary (including the Court of Appeal), rather than revisiting the substance of the original decisions made by the Court of Appeal. The High Court has the authority to assess whether the constitutional rights of the individual were respected during the proceedings, which can include evaluating claims of fairness or bias in the appellate process.

2. Nature of the Review:

The High Court's examination is not a re-evaluation of the facts or legal standards applied by the Court of Appeal; instead, it assesses whether the process that led to that decision upheld the principles of justice and fairness according to the ethos of the constitution . This distinction is critical — the High Court is not acting as a second layer of appeal on the substantive issues but rather as a guardian of constitutional rights.

3. Appeal to the Court of Appeal:

If a party believes that their constitutional rights were infringed by how the Court of Appeal conducted itself, they may approach the High Court with these claims. If the High Court rules in favor of the party asserting the breach, that decision itself can be appealed to the Court of Appeal. This appeal will be ideally limited to whether the High Court properly interpreted and applied constitutional principles before it.

4. Preventing Endless Litigation:

This legal framework creates a structure designed to prevent endless litigation over the same issues. The aim is to provide a decisive resolution while also ensuring that all parties retain their rights to fair treatment under the law.

In summary, while it may appear that the High Court is revisiting issues decided by the Court of Appeal, its role is more about upholding the constitutional integrity of the judicial process rather than overturning or altering substantive appellate rulings.

This distinction helps maintain the efficiency and clarity of our legal system.

04/01/2025

MANY WAYS TO KILLING A CASE BUT THIS ONE IS ALMOST GUARANTEED!

As I wrap up my holiday, I haven't yet delved into the judgment or the specifics of how Carter’s team approached the High Court. It's early to engage my legal mind fully, but it seems their strategy likely centered on protecting constitutional rights to a fair trial, rather than contesting the sentence itself. A lesson from my early law school days comes to mind: if you lack the law and the facts, lean on the Constitution.

Section 10 of the Botswana Constitution states:

“Provisions to secure protection of law
(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established or recognized by law.”

The right to a fair trial is a cornerstone of many legal systems, including Botswana's. It encompasses protections in criminal proceedings, such as the presumption of innocence and the right to legal representation.

It's logical that these fair trial principles extend to all stages of legal proceedings, including appeals. A Fair Appeal is an Extension of a Fair Trial: without fair appeal processes, the fairness of the original trial is compromised. Thus, fair trial principles should guide both the conduct and outcomes of appeals.

This situation prompts reflection on the roles of different courts and the intersection of constitutional issues with criminal convictions. A key question arises: does the High Court have jurisdiction to overturn a Court of Appeal decision?

In Botswana, the High Court possesses unlimited original jurisdiction, especially in constitutional matters like the right to a fair trial. If the former permanent secretary argued that his appeal was unfair or biased, the High Court could potentially hear his case, as constitutional rights are typically safeguarded by law.

If evidence or arguments suggest that an appeal was compromised by bias or unfairness, the High Court must take these claims seriously. The right to a fair trial is a fundamental legal principle, embedded in constitutions and international human rights frameworks.

It would be fundamentally concerning if a Court of Appeal could handle appeals arbitrarily. Imagine if the COA denied someone the right to legal representation during an appeal! Our Constitution ensures that the Court of Appeal is not above scrutiny. Unfairness raises constitutional questions, and the conduct of any court, including the Court of Appeal, is subject to the Constitution, with the High Court serving as its original guardian.

Gase mo states mo!

Makopo Law Office

22/04/2026

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Monday	07:30 - 16:30
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