Democracy in Action: The Role of Civil Society in Botswana’s Failed Constitutional Amendment Bill

In Botswana, parliament's rejection of the Constitutional (Amendment) Bill of 2024 marked a significant victory for civil society organizations opposing the executive-driven reform process. Critics contended that the process lacked informed public participation and failed to address core institutional issues. In response, civil society mobilized with a multipronged campaign to advocate for a more democratic and participatory constitutional reform process. Although the future of constitutional reform is uncertain, the Bill's failure has certainly heightened public awareness of constitutional matters ahead of elections scheduled for 30 October 2024 – writes Mona-Lisa Danieli Mungure

Introduction

On 4 September 2024, following an almost three-year constitutional reform process, Botswana’s parliament rejected the Constitutional (Amendment) Bill of 2024 at its third reading. The Constitutional (Amendment) Bill of 2024 was birthed by a constitutional review process initiated by President Dr Mokgweetsi Eric Keabetswe Masisi, who in 2021 appointed a Commission of Inquiry to review the country’s 1966 Constitution. The Commission’s 2022 Final Report ultimately led to the drafting of the Bill, which ostensibly aimed to modernize Botswana’s constitutional framework (the history of this process and the Final Report were previously analyzed on ConstitutionNet).

While the Commission claimed that the review process was thorough and reflective of the people’s will, the process faced severe criticism from civil society organizations (CSOs), constitutional law experts and the Evangelical Fellowship of Botswana (EFB). It was also publicly criticized by parliamentarians. Critics argued that the process was driven by the executive, failed to adequately engage the public, and did not address the core structural and institutional challenges facing the nation. This piece recounts how Botswana's civil society mobilized to challenge the flawed Constitutional (Amendment) Bill of 2024, advocating for a more democratic and participatory constitutional reform process.

Threats Against Democracy and the Role of Civil Society

The recent constitutional review process posed significant threats to Botswana’s democracy and tested the resilience and influence of civil society movements and activism in the country. A key weakness of the process was uninformed public participation due to lack of political education and awareness-raising, and the Final Report and subsequent Bill reproduced these issues.

A strategic meeting of civil society organizations was held on 21 March 2024 following the publication of the constitutional amendment bill . . . 

In response, a strategic meeting of civil society organizations was held on 21 March 2024 following the publication of the constitutional amendment bill. At the meeting, the Botswana Council of Non-Governmental Organizations (BOCONGO), DITSHWANELO - The Botswana Centre for Human Rights, Botswana Network on Ethics, Law and HIV/AIDS (BONELA) and Emang Basadi Women’s Association, together with other civil society organizations, movements and individuals, discussed developments related to the constitutional review process, the Government White Paper No. 1 of 2023 and the Constitutional (Amendment) Bill 2024.

Through the CSO task-team, the organizations subsequently created and released a Policy Brief on 11 April 2024 with the following demands:

• 1. Withdraw and Review of the Bill: The Bill must be withdrawn and reviewed due to its potential implications for constitutional integrity and democratic principles. For instance, human rights were not adequately addressed, and a significant number of submissions made by relevant stakeholders were omitted from the Commission’s report. Further, the Bill failed to adequately obtain the opinions of the people due to a lack of prior public education. Additionally, the Bill purported to increase the powers of the President without strengthening the ability of the legislature to check these powers, perpetuating the existing challenge of an over-powerful executive in Botswana.
• 2. Entrench Public Participation in Lawmaking: Sections 87 and 89 of the current Constitution—concerning the exercise of legislative power and constitutional amendment, respectively—must be amended to entrench participation of the people throughout any constitutional reform process. Furthermore, legislation (suggested name: Constitution Review Act) should be enacted to provide a clear pathway for a people-driven process in any constitutional review or amendment.
• 3. Restart the Review Process: Following the Bill’s withdrawal and the enactment of a Constitution Review Act, the review process should be restarted. The new constitutional reform process would then be anchored in informed public participation at every stage.  

From March 2024 to 4 September 2024, civil society organizations, in partnership with constitutional law experts from academia, the legal fraternity and political experts, held a multipronged campaign. This campaign aimed to inform the public about constitution-building and constitutional law, highlight the shortfalls of the current review process, and further call on the public to demand a people-driven constitution. The public was engaged through town hall meetings, public lectures, media engagements, press releases, social media campaigns, public marches, and events such as a two-day Constitution World Café hosted in the capital city. Petitions were ultimately submitted to parliament. 

During the same period, following the Bill’s publication in the Government Gazette, parliament conducted three readings of the Bill. Ntlo Ya Dikgosi (the House of Chiefs), an advisory body to the National Assembly, also received the Bill in its interim phase for its own internal debates and submissions to parliament, particularly because the Bill sought to increase the number of individuals appointed by the President to the Ntlo Ya Dikgosi from five to ten. Ntlo Ya Dikgosi ultimately recommended the rejection of provisions in the Bill that affected it.

The above-mentioned Policy Brief, shared publicly for awareness-raising and presented to members of parliament for further advocacy and lobbying, included substantial submissions on key aspects of human rights and democracy that the Bill failed to address. It further offered clauses that could have been included to remedy the gaps, covering areas such as:

• (1) The right to affordable and culturally appropriate healthcare services, including sexual reproductive health care, mental health care and emergency medical treatment, and the state’s obligation to provide healthcare.
• (2) The right to quality education with specific reference to the level of education provided by the state.
• (3) The right to employment/work with an emphasis on the creation of decent work.
• (4) The right to land access and the assurance of secure tenure.
• (5) The rights of the child, including fundamental nourishment, housing, essential healthcare provisions and social welfare services.
• (6) Cultural rights.
• (7) Environmental rights.
• (8) The right to citizenship and nationality.
• (9) Protection from discrimination, including on the basis of multiple citizenship, the entrenchment of equality, and reinforcement of inclusion.
• (10) Reforms around the electoral system, judiciary and judicial system (including the creation of a specialized Constitutional Court) and propositions on inclusion.

While  civil society organizations were united in demanding the withdrawal of the Bill, their reasons and motivations were not necessarily the same. On the one hand, the EFB rejected the inclusion of ‘intersex’ as a ground of unfair discrimination. In contrast, the CSO task-team members celebrated this inclusion and further demanded the inclusion of other sexual identity and orientation rights, as well as broader expansion of human rights under the Bill of Rights.

It is also worth noting that, despite inputs from different CSOs and experts with different focus areas, the Policy Brief involved a relatively small number of participants. This was due to a general lack of appreciation and expertise on constitutional issues even among the CSOs themselves. Further, although contributions towards the Policy Brief and advocacy processes were largely conducted virtually, most inputs to the CSO campaign came from CSOs with a presence in major towns, particularly the city of Francistown and the capital city Gaborone.

While there was no direct response from members of the ruling party, it is noted that the ruling party failed to gain a unanimous vote from its members in favor of the Bill.

As the third reading of the Bill approached, members of civil society boosted their efforts to lobby parliamentarians, with the aim of convincing at least two members of the ruling party to vote against the Bill for the reasons outlined in the Policy Brief. While there was no direct response from members of the ruling party, it is noted that the ruling party failed to gain a unanimous vote from its members in favor of the Bill.

On 4 September 2024, activists, civil society organizations and the EFB participated in a peaceful march to parliament in time for the third reading of the Bill. The march was met with clashes, harassment, violence and approximately five arrests by the Botswana Police Service. Notwithstanding the confrontation, participants attempted to enter the public gallery of parliament, but they were denied entry.

A Win for Democracy

The Bill ultimately failed to pass at its third reading on the afternoon of 4 September 2024: all members of the opposition walked out during the voting process, one member of the ruling party voted against the Bill, and two members abstained from voting. As a result, the Bill did not secure the two-thirds majority needed to amend unentrenched provisions or to send amendments to entrenched provisions to referendum (Article 89). In a press conference outside parliament during the voting session, leaders of the opposition highlighted that they walked out both in protest of the process, noting that the President himself was not in the country to vote for the Bill that he pushed for, and in support of the voices of the people calling for a fair process and a better constitution.

The failed attempt by the President to introduce an executive-driven constitutional review process without adequate public education has, to a small degree, increased public awareness of constitutional issues in Botswana.

The failed attempt by the President to introduce an executive-driven constitutional review process without adequate public education has, to a small degree, increased public awareness of constitutional issues in Botswana. Although there is a strong desire and need for constitutional reform, there is an equally strong desire and need to ensure that there is informed public participation in the process and that the law is strengthened to ensure procedural and substantive fairness in such a pivotal undertaking. Additionally, the protection and advancement of human rights and democracy are paramount and must never be derogated deliberately or negligently.

In the wake of Botswana’s national elections scheduled for 30 October 2024, it is vital that civil society organizations and constitutional law experts remain resolute in ensuring that the public remains informed about constitutional issues and democratic values. This will better equip society to advocate in the event of a similar process, and better safeguard the rights to participation, information and inclusion, which are human rights that must be guaranteed. It is submitted that although the constitutional review process that was initiated by the President has come to an end, there is a continued desire from civil society organizations and members of the Law Society to ensure that Batswana push for a constitution that is reflective of the aspirations of the people both in substance and procedure.

Widespread dialogue and education on human rights, democracy and constitution-building beyond the elections are vital and urgent—not only for constitutional reform, but also to advocate for good governance in the country. This need is particularly pressing in the wake of growing concerns around violence against women and children, increased poverty, separation of powers, centralized government institutions, and issues related to climate change and the environment, among others.

Mona-Lisa Danieli Mungure is a lawyer with about fourteen years of experience in various legal environments. She is also the Executive Director of a civil society organization named Molao Matters, and she is the Regional Head of a government department in the Republic of Botswana.

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Suggested citation: Mona-Lisa Danieli Mungure, ‘Democracy in Action: The Role of Civil Society in Botswana’s Failed Constitutional Amendment Bill’, ConstitutionNet, International IDEA, 9 October 2024, https://constitutionnet.org/news/voices/civil-society-botswanas-failed-constitutional-amendment-bill

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