Customary Law and Limitations to Constitutional Rights in Botswana

Abstract

ABSTRACT The protection and enforcement of human rights are at the heart of any constitutional framework, which is usually inclusive of limitations aimed at securing a reasonable enjoyment of these rights for all persons. The extent to which the courts have been able to support the enjoyment of constitutional rights by, among other things, striking down laws that impose excessive limitations on such rights has become extremely important. The second chapter of Botswana’s Constitution provides for a catalogue of rights which contain inherent limitations and, in some cases, exemptions. One exemption relates to matters that appear to be insulated from the provisions of section 15 of the Constitution, namely the right to non-discrimination. It is an exemption which brings to the fore issues relating to the limitation of constitutional rights and the application of customary law in Botswana. This article provides insights into the courts’ approach in dealing with these limitations and exemptions, and their attempt to strike a balance between the enjoyment of constitutional rights and the application of customary law.