The Participation of theAmicus CuriaeInstitution in Human Rights Litigation in Botswana and South Africa: A Tale of Two Jurisdictions

Abstract

It has become a standard feature of litigation for amici to appear before courts, acting as the vindicator of rights for the politically powerless and marginalized. Their appearance has thus contributed to the promotion and protection of human rights before municipal courts and international tribunals. They have done this through the submission of briefs that seek to broaden perspectives of cases and by advancing innovative legal and factual viewpoints, thus assisting the courts in reaching appropriate conclusions. In Botswana, amicus curiae participation is still at a nascent stage. This is largely due to inflexible rules of standing and the general lack of knowledge of the potential usefulness of the institution by the judiciary. This article argues that, to enhance amicus participation in litigation, thereby enhancing the epistemological quality of its public law jurisprudence, Botswana must pay close attention to the practices and experiences of South Africa where amicus participation has resulted in the phenomenal growth of constitutional jurisprudence.

Influenced by Power or Reasons? The Role of Amicus Curiae Briefs in Constitutional Court Decision-Making

“…If the Court finds a law unconstitutional, it must be stricken. Second, the BCC may abstractly, without a case or controversy, offer "binding" interpretations of the Constitution (article 149(1) (1); see Sadurski 2008: 98) in the context of legislation that is being reviewed. This occurs in cases where the parliament has written broad legislation or not considered all of its implications.…”

“…T he use of amicus curiae or interested party briefs by apex national courts has the potential to democratize judicial decision-making by allowing new ideas and seldom heard voices to reach counter-majoritarian courts. 1 However, despite such ideals, decision-making is just as likely to be co-opted by powerful governmental and non-governmental actors as by elite interests. While the role of amicus curiae in the U.S. Supreme Court has been explored extensively, using a wide range of methods, 2 its influence has been rarely studied empirically in other national high courts.…”