Can Botswana Afford A Constitutional Court? The Price of Institutional Ambition

But behind the legal arguments lies a quieter, more consequential question, one that has received far less scrutiny: can Botswana afford to build a new constitutional institution at this precise fiscal moment, and at what cost to other priorities? An examination of budget data, institutional capacity, and fiscal trajectories suggests that the answer is neither a simple yes nor an outright no. Botswana can afford a Constitutional Court in macroeconomic terms. The harder question is whether it can afford to build it badly, or too quickly, without weakening the very institutions it is meant to strengthen. A Reform Moment Colliding with Fiscal Reality The push for a Constitutional Court comes at an unusually delicate juncture. The 2026/27 Budget Strategy Paper issued by the Ministry of Finance is explicit about the pressures facing the state: falling mineral revenues, weaker growth, constrained fiscal space, and the need for aggressive expenditure prioritisation. Diamonds, long Botswana’s fiscal anchor, no longer offer predictable cover. The budget strategy speaks repeatedly of “reprioritisation” and “efficiency”, the coded language of a government that knows it cannot expand indefinitely. Every new institution now competes directly with existing ones. Against this backdrop, the Constitutional Court proposal stands out precisely because it is structural, permanent, and recurrent. Unlike a time-bound programme or capital project, courts generate ongoing obligations: judges’ salaries, pensions, registries, security, ICT systems, legal research units, and administrative staff. Once created, they cannot be quietly defunded. What the Numbers Actually Say The most relevant baseline for assessing affordability is the Administration of Justice vote. In the 2024/25 financial year, Botswana allocated approximately P 434 million to the justice administration, the bulk of it recurrent expenditure covering courts, prosecutions, prisons, and judicial administration. Against this, three plausible cost pathways emerge: A minimal, phased Constitutional Court, housed initially within existing court infrastructure and staffed through secondments, would likely require P20–25 million in start-up costs and P10–15 million annually thereafter. A standard, fully independent court, with its own registry, research staff, and digital systems, would push initial costs closer to P60–70 million, with recurrent expenditure of P20–40 million per year. A purpose-built, high-visibility court, complete with new construction and expanded outreach, would exceed P130 million in capital costs and create a recurrent bill approaching P80 million annually. In national terms, even the most ambitious option barely registers against Botswana’s overall budget. But within the justice sector, these figures are substantial. A single institutional decision could absorb between 5 and 30 percent of the justice budget, depending on design choices. That is the fiscal trade-off Parliament will ultimately face. The risk is not insolvency; it is displacement. Botswana is not at risk of fiscal collapse because of a Constitutional Court. The real risk is subtler: displacement. Justice budgets are already stretched. Courts face backlogs. Prisons absorb a growing share of recurrent spending. Legal aid remains limited. A new apex court funded without additional resources would almost certainly be financed by internal reallocation, meaning slower proceedings elsewhere in the system. The Hidden Costs No One Is Discussing Beyond headline figures lie second-order effects rarely mentioned in public debate. A Constitutional Court reshapes litigation incentives. Constitutional claims rise. Legal aid pressures increase. Judgments may impose new fiscal obligations on the state, mandating policy changes, compensation, or expanded service delivery. These are not hypothetical risks; they are common in jurisdictions that have constitutionalised socio-economic rights. There is also the matter of staffing. Constitutional adjudication demands specialised expertise. Botswana’s legal talent pool is respected but finite. Drawing senior judges, clerks, and researchers into a new court inevitably thins capacity elsewhere unless succession planning is meticulous. Why Sequencing Matters More Than Symbolism What the Budget Strategy Paper makes clear, without ever addressing the court directly, is that Botswana is entering an era where sequencing matters. Reforms must be staged. Capital projects must be justified. Institutions must earn their scale. In this context, the most fiscally responsible approach would be a phased Constitutional Court: establish the bench and jurisdiction first, embed it within existing infrastructure, observe caseloads and costs, and only then expand. This is not institutional timidity. It is institutional discipline. The Credibility Question Botswana’s long-standing advantage has been credibility, built painstakingly across institutions, including the judiciary and the Bank of Botswana. That credibility has never rested on size or spectacle, but on restraint, competence, and continuity. A Constitutional Court created hastily, without clear financing or capacity planning, would undermine that legacy. A court created carefully, transparently, and incrementally could strengthen it. What Parliament Must Now Decide The debate, then, is not about whether Botswana deserves a Constitutional Court. It is about whether it is willing to confront the fiscal and institutional consequences honestly. Parliament should insist on: a published cost–benefit analysis, a multi-year expenditure path, explicit protection for lower courts and legal aid, and a phased implementation plan. Without these, the court risks becoming a symbol of ambition colliding with arithmetic. Botswana has reached a moment where institutional reform must be judged not by intent, but by execution. The Constitutional Court proposal is a test case, of fiscal realism, democratic maturity, and whether the country still remembers that its greatest strength has never been grand gestures, but quiet, disciplined governance.

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Can Botswana Afford A Constitutional Court? The Price of Institutional Ambition

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