09 Apr 2026

As the debate for and against the establishment of a Constitutional Court continues, Batswana from different quarters are desirous to know the form that it will take and how its judges will be appointed.

Just as is the case with judicial officers of different lower-level courts, the appointment of judges of Constitutional Courts is a matter that countries handle with great circumspection.

Often the highest courts marking the pinnacle of the court systems, Constitutional or Supreme Courts, are where they exist, the final stage of legal recourse.

Their position in the legal structure of any country lends reason to why countries endeavour to do their absolute best in handling the appointment of judges who will sit in their hallowed chambers.

According to private attorney, Mr Nchunga Nchunga of Chuchuchu Nchunga Attorneys, at the heart of each model of appointing judges of a Constitutional Court is the desire to promote and protect judicial independence, as well as to ensure that the court comes across as legitimate.

While a couple of models of appointing ConCourt judges existed, Mr Nchunga admitted that none was perfect.

Nonetheless, he believed the mixed appointment model stood shoulders above the other models as it balanced competing interests, promoted checks and balances and was not prone to political bias.

For the above reason, the model, in which the Executive, the Legislature and the Judiciary all play a role in appointing judges, would be best suited to Botswana’s legal landscape.

“The mixed model, where there is a combination of executive, legislative, and/or judicial input as in the case of Germany and Canada would work for Botswana,” he said.

He explained that for Botswana situation, the Judicial Service Commission (JSC) forming part of the appointing authorities would help ensure and protect the court’s judicial independence.

Mr Nchunga, a former deputy government attorney at the Attorney General’s Chambers, reckoned however that the mixed appointment model was not without fault and among its weaknesses was that it could be complex, slow and contentious.

The attorney revealed that other jurisdictions appointed ConCourt judges using the Executive appointment model where the head of state or government appointed judges, often with legislative approval such as in the case of the United States of America and South Africa.

He noted that the Executive model of appointment had its own pros and cons; its advantages’ being that it was quick and efficient.

His view was that if appointments were merit-based and appointees had security of tenure, the model could, to a great extent, protect judicial independence.

“But there is a risk of political interference if appointments are based on friendship, party loyalty or cronyism,” he said.

Mr Nchunga said their disadvantages were that it was risky with a high possibility of political bias and a potential lack of transparency.

He added that other countries went the legislative way when appointing judges to their Constitutional or Supreme Courts, with the legislature selecting judges to sit in the apex courts.

This was a practice that Mr Nchunga noted was followed by some states in the United States of America.

“The advantage of the legislative election is that it is more democratic as representatives are chosen by elected officials. Its weaknesses include the fact that it can be politicised, with the potential for populism,” he stated.

Although the model may introduce political pressure from legislators, where judges find themselves having to bend to accommodate politicians’ special interests, it can, on the one hand, insulate judges from executive influence.

Another model, currently being practiced in India and Australia provided for judicial bodies, often comprising judges, lawyers, and/or academics to recommend candidates for the appointment to the judgeship of the Constitutional Courts.

To Mr Nchunga, having a judicial body such as the JSC- an expertise-driven entity, shoulder the responsibility of championing the appointment of ConCourt judges usually resulted in merit-based and less-politicised appointments.

Even so, he felt it had some inherent weaknesses, among which, he cited a lack of democratic accountability and that it carried the potential for elitism and detachment from political reality on the ground as well as a lack of cultural relevance.

While it promotes judicial independence by involving judicial peers in selection, the JSC model is imbued with the potential for self-perpetuating elite if not transparent and if left without checks and balances mechanisms.

Underlining why no model of appointing judges was perfect, Attorney Nchunga observed that it was worth noting that not all judges were weak that they would abandon their judicial oath in favour of the Executive’s desires.

“Judges are human, they are fallible and they are not perfect. Also, not all presidents are corrupt, some maintain integrity,” he further observed, adding that political influence was also possible whatever the methodology employed in appointing the judges.

That aside, some pitfalls exist that Mr Nchunga believed Botswana should avoid should the country establish a ConCourt.

Among those, he cited Executive appointments, saying in the event that the country decided to go that route, the Executive should avoid ‘choosing judges friends and acquaintances who are loyal to them or are within their club of elites’. =

Another mistake worth avoiding was having judges who were detached from cultural reality, the ones who end up with well-researched judgments, which are academic but insensitive to the cultural reality on the ground, Mr Nchunga noted.

Regarding tenure of office for ConCourt judges, he suggested that it would serve the country well to have either age-limit based tenures or contractual limits with predictable tenures, thereby guaranteeing those in the court’s bench security of tenure.

Mr Nchunga cautioned against using the ConCourt as a terror machine, which he alleged was the case in some SADC countries.

“Their Constitutional Courts are oppressive tools of the Executive - oppressing the ordinary citizens, especially political opponents,” he concluded.

Former court president of Tatitown Customary Court in Francistown, Ms Margaret Mosojane said a ConCourt judge should be someone with a deep understanding of what human rights were; an understanding that goes beyond being merely academic.

As such, she opined that the judges should be people with a record of having previously dealt with issues of human rights.

“Much as we emphasise the knowledge-based approach of doing things, experience is also crucial. You might have the knowledge, but do you have the experience?” She asked.

Should the court be established, Ms Mosojane is all for the appointment of judges who are also alive to the cultures of Botswana’s different tribes.

“For instance, the judge should be able to understand that to a Zezuru parent, having a minor out in the streets selling vegetables is economic empowerment and not child abuse. This is where cultural sensitivity comes in,” she said. ENDS