Reflections on approaches to constitutional interpretation in Botswana
Reflections on approaches to constitutional interpretation in Botswana
Author: Obonye Jonas
ISSN: 2521-2605
Affiliations: LLM (Pretoria), (PhD) Bristol, Senior Lecturer, Department of Law, University of Botswana
Source: Journal of Comparative Law in Africa, Volume 12 Issue 2, p. 1-41
https://doi.org/10.47348/JCLA/v12/i2a1
Abstract
A constitution is a form of legislation that forms the basis for the polity of free and equal individuals. It establishes the state itself, together with its institutional geometry, rules, processes, and procedures, as well as societal values, and expresses the nation’s vision. In this sense, a constitution is a sui generis legislation that calls for the application of unique interpretive models. Constitutions, unlike regular statutes, rules, and regulations, are typically enduring, rigid, unitary and vague laws. Because the language of their text is vague and open-ended, it requires interpretation to decipher meaning. This article considers the various models of constitutional interpretation in Botswana. It points out that the Courts of Botswana contemporaneously employ the contextual and purposive interpretations of the Constitution. It notes that the hybrid model of interpretation allows the courts to rely on relevant rules of international law, drafting history, comparative law, public opinion and other considerations in search of a meaning to be ascribed to a Constitutional provision. It observes that the courts of Botswana consider the Constitution as a single unitary compact whose provisions rank equally. As such, they must be interpreted in a mutually reinforcing manner as part of a structure or system to render the Constitution effective. The article also discusses the constitutional avoidance doctrine. It concludes that it has lost relevance in modern constitutional adjudication as it ossifies the Constitution and prevents it from evolving to meet the needs of society.