- for the defence of any person from violence or for the defence of property;
- in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
- for the purpose of suppressing a riot, insurrection or mutiny; or
- in order to prevent the commission by that person of a criminal offence,
or if he or she dies as the result of a lawful act of war.
5. Protection of right to personal liberty
- No person shall be deprived of his or her personal liberty save as may be authorized by law in any of the following cases, that is to say—
- in execution of the sentence or order of a court, whether established for Botswana or some other country, in respect of a criminal offence of which he or she has been convicted;
- in execution of the order of a court of record punishing him or her for contempt of that or another court;
- in execution of the order of a court made to secure the fulfilment of any obligation imposed on him or her by law;
- for the purpose of bringing him or her before a court in execution of the order of a court;
- upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the law in force in Botswana;
- under the order of a court or with the consent of his or her parent or guardian, for his or her education or welfare during any period ending not later than the date when he or she attains the age of 18 years;
- for the purpose of preventing the spread of an infectious or contagious disease;
- for the purpose of bringing him or her before a court in execution of the order of a court; or
- upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the law in force in Botswana,
and who is not released, shall be brought as soon as is reasonably practicable before a court; and if any person arrested or detained as mentioned in paragraph (b) of this subsection is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him or her, he or she shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he or she appears at a later date for trial or for proceedings preliminary to trial.
Protection from false imprisonment Prohibition of slavery6. Protection from slavery and forced labour
- No person shall be held in slavery or servitude.
- No person shall be required to perform forced labour.
- For the purposes of this section, the expression "forced labour" does not include—
- any labour required in consequence of the sentence or order of a court;
- labour required of any person while he or she is lawfully detained that, though not required in consequence of the sentence or order of a court, is reasonably necessary in the interests of hygiene or for the maintenance of the place at which he or she is detained;
7. Protection from inhuman treatment
- No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.
- Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in the country immediately before the coming into operation of this Constitution.
8. Protection from deprivation of property
Protection from expropriation- the taking of possession or acquisition is necessary or expedient—
- in the interests of defence, public safety, public order, public morality, public health, town and country planning or land settlement;
- in order to secure the development or utilization of that, or other, property for a purpose beneficial to the community; or
- for the prompt payment of adequate compensation; and
- securing to any person having an interest in or right over the property a right of access to the High Court, either direct or on appeal from any other authority, for the determination of his or her interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he or she is entitled, and for the purpose of obtaining prompt payment of that compensation.
- the attachment, by order of a court, of any amount of compensation to which a person is entitled in satisfaction of the judgment of a court or pending the determination of civil proceedings to which he or she is a party; or
- the imposition of reasonable restrictions on the manner in which any amount of compensation is to be remitted.
- to the extent that the law in question makes provision for the taking of possession or acquisition of any property—
- in satisfaction of any tax, rate or due;
- by way of penalty for breach of the law whether under civil process or after conviction of a criminal offence under the law in force in Botswana;
- as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge or contract;
- in the execution of judgments or orders of a court in proceedings for the determination of civil rights or obligations;
- in circumstances where it is reasonably necessary to do so because the property is in a dangerous state or injurious to the health of human beings, animals or plants;
- in consequence of any law with respect to the limitation of actions; or
- for so long only as may be necessary for the purposes of any examination, investigation, trial or inquiry or, in the case of land, for the purposes of the carrying out thereon of work of soil conservation or the conservation of other natural resources or work relating to agricultural development or improvement (being work relating to such development or improvement that the owner or occupier of the land has been required, and has without reasonable excuse refused or failed, to carry out),
and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society; or
- enemy property;
- property of a deceased person, a person of unsound mind, a person who has not attained the age of 21 years, a prodigal, or a person who is absent from Botswana, for the purpose of its administration for the benefit of the persons entitled to the beneficial interest therein;
- property of a person declared to be insolvent or a body corporate in liquidation, for the purpose of its administration for the benefit of the creditors of the insolvent or body corporate and, subject thereto, for the benefit of other persons entitled to the beneficial interest in the property; or
- property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust or by a court, or by order of a court, for the purpose of giving effect to the trust.
9. Protection for privacy of home and other property
- Except with his or her own consent, no person shall be subjected to the search of his or her person or his or her property or the entry by others on his or her premises.
- Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—
and except so far as that provision or, as the case may be, anything done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
10. Provisions to secure protection of law
Right to speedy trial , Right to fair trial , Judicial independence Presumption of innocence in trials Trial in native language of accused Right to counsel Right to examine evidence/witnesses Trial in native language of accusedand except with his or her own consent the trial shall not take place in his or her absence unless he or she so conducts himself or herself as to render the continuance of the proceedings in his or her presence impracticable and the court has ordered him or her to be removed and the trial to proceed in his or her absence.
Protection from ex post facto laws Prohibition of double jeopardy Protection from self-incrimination Principle of no punishment without lawNo person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law:
Provided that nothing in this subsection shall prevent a court of record from punishing any person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty therefor is not so prescribed.
Right to public trial- may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or in interlocutory proceedings; or
- subsection (2)(a) of this section to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;
- subsection (2)(d) or (2)(e) of this section to the extent that the law in question prohibits legal representation before a subordinate court in proceedings for an offence under customary law (being proceedings against any person who, under that law, is subject to that law);
- subsection (2)(c) of this section to the extent that the law in question imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds;
- subsection (5) of this section to the extent that the law in question authorizes a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, so, however, that any court so trying such a member and convicting him or her shall in sentencing him or her to any punishment take into account any punishment awarded him or her under that disciplinary law;
- subsection (8) of this section to the extent that the law in question authorizes a court to convict a person of a criminal offence under any customary law to which, by virtue of that law, such person is subject.
11. Protection of freedom of conscience
- Except with his or her own consent, no person shall be hindered in the enjoyment of his or her freedom of conscience, and for the purposes of this section the said freedom includes freedom of thought and of religion, freedom to change his or her religion or belief, and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his or her religion or belief in worship, teaching, practice and observance.
- Every religious community shall be entitled, at its own expense, to establish and maintain places of education and to manage any place of education which it wholly maintains; and no such community shall be prevented from providing religious instruction for persons of that community in the course of any education provided at any place of education which it wholly maintains or in the course of any education which it otherwise provides.
- Except with his or her own consent (or, if he or she is a minor, the consent of his or her guardian) no person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if that instruction, ceremony or observance relates to a religion other than his or her own.
- No person shall be compelled to take any oath which is contrary to his or her religion or belief or to take any oath in a manner which is contrary to his or her religion or belief.
- Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision which is reasonably required—
- in the interests of defence, public safety, public order, public morality or public health; or
- for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practise any religion without the unsolicited intervention of members of any other religion,
and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
Freedom of expression , Freedom of press12. Protection of freedom of expression
Right to privacy- that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or
and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
Freedom of assembly , Freedom of association , Right to join trade unions13. Protection of freedom of assembly and association
- Except with his or her own consent, no person shall be hindered in the enjoyment of his or her freedom of assembly and association, that is to say, his or her right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his or her interests.
- Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—
- that is reasonably required in the interests of defence, public safety, public order, public morality or public health;
- that is reasonably required for the purpose of protecting the rights or freedoms of other persons;
- that imposes restrictions upon public officers, employees of local government bodies, or teachers; or
- for the registration of trade unions and associations of trade unions in a register established by or under any law, and for imposing reasonable conditions relating to the requirements for entry on such a register (including conditions as to the minimum number of persons necessary to constitute a trade union qualified for registration, or of members necessary to constitute an association of trade unions qualified for registration) and conditions whereby registration may be refused on the grounds that any other trade union already registered, or association of trade unions already registered, as the case may be, is sufficiently representative of the whole or of a substantial proportion of the interests in respect of which registration of a trade union or association of trade unions is sought,
and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
Freedom of movement14. Protection of freedom of movement
- No person shall be deprived of his or her freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Botswana, the right to reside in any part of Botswana, the right to enter Botswana and immunity from expulsion from Botswana.
- Any restriction on a person's freedom of movement that is involved in his or her lawful detention shall not be held to be inconsistent with or in contravention of this section.
- Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—
- for the imposition of restrictions that are reasonably required in the interests of defence, public safety, public order, public morality or public health or the imposition of restrictions on the acquisition or use by any person of land or other property in Botswana and except so far as that provision or, as the case may be, the thing done under the authority thereof, is shown not to be reasonably justifiable in a democratic society;
- for the imposition of restrictions on the freedom of movement of any person who is not a citizen of Botswana;
- for the imposition of restrictions on the entry into or residence within defined areas of Botswana of persons who are not Bushmen to the extent that such restrictions are reasonably required for the protection or well-being of Bushmen;
- for the imposition of restrictions upon the movement or residence within Botswana of public officers; or
- [Repealed.]
Equality regardless of tribe or clan , General guarantee of equality , Equality regardless of skin color , Equality regardless of origin , Equality regardless of political party , Equality regardless of gender , Equality regardless of creed or belief , Equality regardless of race
15. Protection from discrimination on the grounds of race, etc
- Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall make any provision that is discriminatory either of itself or in its effect.
- Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
- In this section, the expression "discriminatory" means affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
- Subsection (1) of this section shall not apply to any law so far as that law makes provision—
- for the appropriation of public revenues or other public funds;
- if that law was in force immediately before the coming into operation of this Constitution and has continued in force at all times since the coming into operation of this Constitution; or
- to the extent that the law repeals and re-enacts any provision which has been contained in any written law at all times since immediately before the coming into operation of this Constitution.
16. Derogation from fundamental rights and freedoms
- Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 5 or 15 of this Constitution to the extent that the law authorizes the taking during any period when Botswana is at war or any period when a declaration under section 17 of this Constitution is in force, of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during that period.
- Where a person is detained by virtue of such an authorization as is referred to in subsection (1) of this section the following provisions shall apply—
- he or she shall, as soon as reasonably practicable and in any case not more than five days after the commencement of his or her detention, be furnished with a statement in writing in a language that he or she understands specifying in detail the grounds upon which he or she is detained;
- not more than 14 days after the commencement of his or her detention, a notification shall be published in the Gazette stating that he or she has been detained and giving particulars of the provision of law under which his or her detention is authorized;
- not more than one month after the commencement of his or her detention and thereafter during his or her detention at intervals of not more than six months, his or her case shall be reviewed by an independent and impartial tribunal established by law and presided over by a person, qualified to be enrolled as an advocate in Botswana, appointed by the Chief Justice; and
- he or she shall be afforded reasonable facilities to consult and instruct, at his or her own expense, a legal representative and he or she and any such legal representative shall be permitted to make written or oral representations or both to the tribunal appointed for the review of his or her case.
17. Declarations relating to emergencies
- The President may at any time, by Proclamation published in the Gazette, declare that a state of public emergency exists.
- A declaration under subsection (1) of this section, if not sooner revoked, shall cease to have effect—
- in the case of a declaration made when Parliament is sitting or has been summoned to meet within seven days, at the expiration of a period of seven days beginning with the date of publication of the declaration; or
- in any other case, at the expiration of a period of 21 days beginning with the date of publication of the declaration,
unless before the expiration of that period, it is approved by a resolution passed by the National Assembly, supported by the votes of a majority of all the voting members of the Assembly.
Provided that the National Assembly may, by resolution, supported by the votes of a majority of all the voting members of the Assembly, extend its approval of the declaration for periods of not more than six months at a time.
18. Enforcement of protective provisions
Ultra-vires administrative actions- to hear and determine any application made by any person in pursuance of subsection (1) of this section; or
- to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3) of this section,
and may make such orders, issue such writs and give such direction as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 16 (inclusive) of this Constitution.
19. Interpretation and savings
- In this Chapter, unless the context otherwise requires—
- "court" means any court of law having jurisdiction in Botswana other than a court established by a disciplinary law, and in sections 4 and 6 of this Constitution a court established by a disciplinary law;
- a naval, military or air force;
- a police force; or
- a prison service;
"legal representative" means a person entitled to practise in Botswana as an advocate or attorney;
"member", in relation to a disciplined force, includes any person who, under the law regulating the discipline of that force, is subject to that discipline.
CHAPTER III. Citizenship (ss 20-29: repealed)
CHAPTER IV. The Executive (ss 30-56)
PART I. The President and the Vice-President (ss 30-41)
Name/structure of executive(s)30. Office of President
There shall be a President of the Republic of Botswana who shall be the Head of State.
31. First President
- The first President shall be the person who immediately before 30th September, 1966 holds the office of Prime Minister under the Constitution.
- The first President shall be deemed to have assumed office at the coming into operation of this Constitution.
32. Election of President after dissolution of Parliament
Head of state term length , Head of government term length- a person nominated as a Parliamentary candidate may, at the time of his or her nomination and subject to the provisions of paragraph (b), declare in such manner as may be prescribed by or under an Act of Parliament which of the candidates in the election of President he or she supports, but the nomination of a Parliamentary candidate shall be valid notwithstanding that the nomination paper does not contain such a declaration;
- such a declaration shall not be made in relation to any Presidential candidate unless that candidate has signified, in such manner as may be prescribed by or under an Act of Parliament, his or her consent to the making of a declaration in his or her favour by that Parliamentary candidate;
- where the Parliamentary election is contested in any constituency a poll shall be taken in that constituency at which the votes shall be given by ballot, and for the purposes of that poll any Parliamentary candidate who declared support in accordance with paragraph (a) for a particular Presidential candidate shall use the same voting colour and symbol, if any, as may have been allocated under any law for the time being in force in Botswana to that Presidential candidate for the purposes of the Presidential election;
- the returning officer shall declare to be elected as President any candidate for whom support has been declared in accordance with paragraph (a) above by not less than such number of persons elected as Members of the National Assembly in the Parliamentary election as corresponds to more than half the total number of seats for Elected Members in the Assembly, and if there is no such person the returning officer shall declare that no candidate has been elected.
- any candidate in an election of a President dies during the period commencing with the taking of the poll in the Parliamentary election and ending when the result of the election has been ascertained and that candidate would, but for his or her death, have been entitled to have been declared elected as President under subsection (3) of this section; or
- the returning officer declares in accordance with the provisions of subsection (3)(d) of this section that no candidate has been elected,
the new National Assembly shall meet on such day (not being more than 14 days after the result of the election is ascertained or, as the case may be, the declaration that no candidate has been elected) as the Speaker shall appoint, and shall elect a person to the office of President in such manner as is prescribed by section 35(5) of this Constitution and subject thereto by or under an Act of Parliament. Such an election shall take place before the election of the Specially Elected Members of the National Assembly.
-
"Parliamentary candidate" means a candidate in the Parliamentary election;
"the Parliamentary election" means the general election to elect those Members of the National Assembly who are referred to in section 58(2)(a) of this Constitution following any dissolution of Parliament;
"Presidential candidate" means a candidate for the office of President; "the returning officer" means the returning officer specified in section 38 of this Constitution. Eligibility for head of government , Eligibility for head of state33. Qualification for election as President
-
A person shall be qualified for election as President if, and shall not be qualified unless, he or she—
- the term "citizen by birth" shall be understood to include only those persons who became citizens of Botswana prior to the amendment of the law relating to citizenship by the Cap. 01:01 Citizenship Act;
- any person who, although his or her father was a citizen of Botswana at the time of that person's birth, had, by virtue of his or her having been born outside Botswana, to be registered as a citizen of Botswana, under the law relating to citizenship in force at that time, shall be regarded as a citizen by descent.
-
is a citizen of Botswana by birth or descent;
