Rights vs. Majority: Death Penalty Sparks Constitutional Questions

As Botswana embarks on its Constitutional Review process, the question of whether the death penalty aligns with fundamental rights has emerged as a contentious issue.

While public opinion remains strongly in favour of capital punishment, legal experts caution that democracy is not solely about majority rule but also about safeguarding human rights.

Justice Key Dingake, speaking on the matter, noted that the central question is whether the death penalty violates the right to life.

“On that, there may be legitimate differences,” he said, adding that rights are not a majoritarian concept and cannot be overridden simply because the majority supports a particular measure.

South Africa’s constitutional history offers a striking parallel. And it’s a model embraced by President Advocate Duma Boko. Justice Dingake explains that during the drafting of its post-apartheid

Constitution, leaders acknowledged widespread public support for the death penalty but chose to enshrine only the “right to life.”

They left the ultimate determination to the courts. In the landmark case S v Makwanyane, the Constitutional Court ruled that capital punishment was unconstitutional, finding it infringed upon the rights to life, dignity, and protection against cruel, inhuman, and degrading treatment.

Section 11 of Botswana’s Constitution similarly guarantees that “Everyone has the right to life.”

Whether this provision permits capital punishment remains a live question in the current review. Legal scholars argue that the issue goes beyond public sentiment, touching on the broader principles of the rule of law, judicial independence, and the protection of fundamental rights.

As the review unfolds, the media faces the challenge of balancing coverage of strong public support for the death penalty with the constitutional imperative to protect rights.

The debate underscores a critical tension at the heart of Botswana’s democratic journey: whether constitutional design should reflect majority will or safeguard universal rights.

Justice Dingake wonders whether the Constitutional Review Process in Botswana has started, or is it yet to start?

He contends that it is fundamental in the sense that the constitutional review process from A to Z must be “people-driven and people-centred in order to produce a people’s Constitution”.

However, a cursory search shows that the process has begun.

It was initiated in December 2021, and in July 2025 the government tabled the Constitution (Amendment) Bill, 2025 in Parliament. However, civil society groups have criticised the process for lacking transparency and meaningful public participation.

The constitutional review process formally began in December 2021 under President Mokgweetsi Masisi’s administration. This marked the first serious attempt in decades to revisit Botswana’s founding legal framework.

In June 2025, Minister of State President Moeti Mohwasa announced that a Constitutional Review Bill would be tabled in Parliament during the July 2025 session. This step signalled renewed government commitment to modernising the Constitution.

On 4 July 2025, the government gazetted the Constitution (Amendment) Bill, No. 14 of 2025. This formalised the legislative process, but it also sparked criticism because the bill was introduced without broad consultation with civil society or the public.

Civil society organisations argue that the process has been non-participatory, opaque, and lacking civic education.

They stress that citizens were not adequately empowered to engage with constitutional issues, undermining the principle of a “people-driven, people-centred” review. Debating the State of the Nation

Address on Tuesday this week, President Duma Boko waded into the death penalty debate in the context of the constitutional review, making clear his government’s human-rights approach to governance. Boko’s approach to the constitutional review process is to first set up a Constitutional Court. But whether this approach will truly be people-driven remains contested, as civil society continues to push for greater transparency.