The Case for the Constitutionalisation of Economic, Social and Cultural Rights (ESCRs) in Botswana

Abstract

This paper argues that there is no hierarchy in the importance attached to the different categories of human rights. Hence, Civil and Political Rights (CPRs) and Economic, Social, and Cultural Rights (ESCRs) are both human rights and must be placed on the same pedestal. In a democracy, it is imperative that all rights be accorded equal treatment. The aim of this paper is to investigate whether Botswana accords equal treatment to the two categories of human rights. Using a case study approach, the paper concludes that while the Constitution of Botswana provides for CPRs, ESCRs are absent from this instrument. Consequently, the provision of economic, social, and cultural goods is policy-based. The paper argues that this raises accountability and justiciability challenges because the state cannot be sanctioned for failing to provide non-rights. It recommends the constitutionalisation of ESCRs to maximise the accountability and justiciability of ESCRs.