The Participation of the Amicus Curiae Institution in Human Rights|Litigation in Botswana and South Africa: A Tale of Two Jurisdictions

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.