Botswana 1966 Constitution (reviewed 2016) - Page 5 of 10

Table of Contents

CHAPTER VI. The Judicature (ss 95-107)

PART I. The High Court (ss 95-98)

95. Jurisdiction and composition

There shall be for Botswana a High Court which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.
The judges of the High Court shall be the Chief Justice and such number of other judges of the Court as may be prescribed by Parliament:Provided that the office of a judge of the High Court shall not be abolished while there is a substantive holder thereof.
The High Court shall be a superior court of record and, save as otherwise provided by Parliament, shall have all the powers of such a court.
The High Court shall sit in such places as the Chief Justice may appoint.
The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court or any court martial and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.
The Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by subsection (5) of this section.
The Chief Justice may appoint a Rules of Court Advisory Committee to assist him or her in reviewing and overhauling the rules made under subsection (6) and to advise on proposals to update and amend such rules.

96. Appointment of judges of High Court

The Chief Justice shall be appointed by the President.
The other judges of the High Court shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission.
A person shall not be qualified to be appointed as a judge of the High Court unless—
1. he or she holds, or has held office, as a judge of a court having unlimited jurisdiction in civil and criminal matters in Botswana, in a Commonwealth country or in any country outside the Commonwealth that may be prescribed by Parliament or a court having jurisdiction in appeals from such a court; or
2. he or she is qualified to practise as an advocate or attorney in such a court and has been qualified for not less than ten years to practise as an advocate or attorney in such a court;
3. he or she is qualified to practise as an advocate or attorney and he or she has had the experience in the teaching of law in a recognised university for not less than ten years; or
4. he or she is a Chief Magistrate who has held that office for not less than five years.
In computing, for the purposes of subsection (3) of this section, the period during which any person has been qualified to practise as an advocate or attorney any period during which he or she has held judicial office after becoming so qualified shall be included.
If the office of Chief Justice is vacant or if the Chief Justice is for any reason unable to perform the functions of his or her office, then, until a person has been appointed to and has assumed the functions of that office or until the Chief Justice has resumed those functions, as the case may be, those functions shall be performed by such one of the judges of the High Court or such other person qualified for appointment as a judge of the High Court as the President may appoint for that purpose:Provided that—
1. a person may be appointed under this subsection notwithstanding that he or she has attained the age of 70 years or such other age as may be prescribed for the purposes of section 97 of this Constitution;
2. a person appointed under this subsection, who is not a judge of the High Court, may, notwithstanding the assumption or resumption of the functions of the office of Chief Justice by the holder of that office, continue to act as a judge of the High Court for so long thereafter and to such extent as may be necessary to enable him or her to deliver judgment or to do any other thing in relation to proceedings that were commenced before him or her previously thereto.
If the office of any judge of the High Court is vacant, or if any such judge is appointed to act as Chief Justice, or is for any reason unable to perform the functions of his or her office, or if the President, acting after consultation with the Chief Justice, is satisfied that the state of business in the High Court requires that the number of judges of the court should be temporarily increased, the President, acting in accordance with the advice of the Judicial Service Commission, may appoint a person qualified for appointment as a judge of the High Court to act as a judge of that court:Provided that a person may be so appointed notwithstanding that he or she has attained the age of 70 years or such other age as may be prescribed for the purposes of section 88 of this Constitution.
Any person appointed under subsection (6) of this section to act as a judge of the High Court shall, subject to the provisions of section 97(4) and (5) of this Constitution, continue to act for the period of his or her appointment or, if no such period is specified, until his or her appointment is revoked by the President, acting in accordance with the advice of the Judicial Service Commission:Provided that the President, acting in accordance with the advice of the Judicial Service Commission, may permit a person whose appointment to act as a judge of the High Court has expired or been revoked to continue to act as such a judge for such period as may be necessary to enable him or her to deliver judgment or to do any other thing in relation to proceedings that were commenced before him or her previously thereto.

97. Tenure of office of judges of High Court

Subject to the provisions of this section, a person holding the office of a judge of the High Court shall vacate that office on attaining the age of 70 years or such other age as may be prescribed by Parliament:Provided that the President, acting in accordance with the advice of the Judicial Service Commission, may permit a judge who has attained that age to continue in office for such period as may be necessary to enable him or her to deliver judgment or to do any other thing in relation to proceedings that were commenced before him or her before he or she attained that age.
A judge of the High Court may be removed from office only for inability to perform the functions of his or her office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section.
If the President considers that the question of removing a judge of the High Court under this section ought to be investigated then—
1. he or she shall appoint a tribunal which shall consist of a Chairman and not less than two other members, who hold or have held high judicial office;
2. the tribunal shall enquire into the matter and report on the facts thereof to the President and advise the President whether the judge ought to be removed from office under this section for inability as aforesaid or for misbehaviour.
Where a tribunal appointed under subsection (3) of this section advises the President that a judge of the High Court ought to be removed from office for inability as aforesaid or for misbehaviour, the President shall remove such judge from office.
If the question of removing a judge of the High Court from office has been referred to a tribunal under subsection (3) of this section, the President may suspend the judge from performing the functions of his or her office, and any such suspension may at any time be revoked by the President and shall in any case cease to have effect if the tribunal advises the President that the judge ought not to be removed from office.

98. Oaths to be taken by judges of High Court

A judge of the High Court shall not enter upon the duties of his or her office unless he or she has taken and subscribed such oath for the due execution of his or her office as may be prescribed by Parliament.

PART II. Court of Appeal (ss 99-102)

99. Composition and jurisdiction

There shall be a Court of Appeal for Botswana which shall have such jurisdiction and powers as may be conferred on it by this Constitution or any other law.
The judges of the Court of Appeal shall be—
1. the President of the Court of Appeal;
2. such number, if any, of Justices of Appeal as may be prescribed by Parliament; and
3. the Chief Justice and the other judges of the High Court:
Provided that Parliament may make provision for the office of President of the Court of Appeal to be held by the Chief Justice ex-officio.
The office of a Justice of Appeal shall not be abolished while there is a substantive holder thereof.
The Court of Appeal shall be a superior court of record and save as otherwise provided by Parliament shall have all the powers of such a court.

100. Appointment of judges of Court of Appeal

The President of the Court of Appeal shall, unless that office is held ex-officio by the Chief Justice, be appointed by the President.
The Justices of Appeal, if any, shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission.
A person shall not be qualified to be appointed as a judge of the Court of Appeal unless—
1. he or she holds, or has held office as, a judge of a court having unlimited jurisdiction in civil and criminal matters in Botswana, in a Commonwealth country or in any country outside the Commonwealth that may be prescribed by Parliament or a court having jurisdiction in appeals from such a court; or
2. he or she is qualified to practise as an advocate or attorney in such a court and has been qualified for not less than ten years to practise as an advocate or attorney in such a court; or
3. he or she is qualified to practise as an advocate or attorney and he or she has had experience in the teaching of law in a recognised university for not less than ten years.
In computing, for the purposes of subsection (3) of this section, the period during which any person has been qualified to practise as an advocate or attorney any period during which he or she has held judicial office after becoming so qualified shall be included.
If the office of President of the Court of Appeal is vacant or if the President of the Court of Appeal is for any reason unable to perform the functions of his or her office, then, until a person has been appointed to and has assumed the functions of that office or until the President of the Court of Appeal has resumed those functions, as the case may be, those functions shall be performed by such one of the other judges of the Court of Appeal or such other person qualified for appointment as a judge of the Court of Appeal as the President may appoint for that purpose:Provided that—
1. a person may be appointed under this subsection notwithstanding that he or she has attained the age of 70 years or such other age as may be prescribed for the purposes of section 101 of this Constitution;
2. a person appointed under this subsection, who is not a judge of the Court of Appeal, may, notwithstanding the assumption or resumption of the functions of the office of President of the Court of Appeal by the holder of that office, continue to act as a judge of the Court of Appeal for so long thereafter and to such extent as may be necessary to enable him or her to deliver judgment or to do any other thing in relation to proceedings that were commenced before him or her previously thereto.
If the office of a Justice of Appeal is vacant or if any Justice of Appeal is appointed to act as Chief Justice or President of the Court of Appeal or is for any reason unable to perform the functions of his or her office, the President, acting in accordance with the advice of the Judicial Service Commission, may appoint a person qualified for appointment as a Justice of Appeal to act as a Justice of Appeal:Provided that a person may be so appointed notwithstanding that he or she has attained the age of 70 years or such other age as may be prescribed for the purposes of section 101 of this Constitution.
Any person appointed under subsection (6) of this section to act as a Justice of Appeal, shall subject to the provisions of section 101(4) and (5) of this Constitution, continue to act for the period of his or her appointment or, if no such period is specified, until his or her appointment is revoked by the President, acting in accordance with the advice of the Judicial Service Commission:Provided that the President, acting in accordance with the advice of the Judicial Service Commission, may permit a person whose appointment to act as a Justice of Appeal has expired or been revoked to continue to act as such a judge for such period as may be necessary to enable him or her to deliver judgment or to do any other thing in relation to proceedings that were commenced before him or her previously thereto.

101. Tenure of office of judges of Court of Appeal

Subject to the provisions of this section, a person holding the office of a judge of the Court of Appeal shall vacate that office on attaining the age of 70 years or such other age as may be prescribed by Parliament:Provided that—
1. the President, acting in accordance with the advice of the Judicial Service Commission, may permit a judge who has attained that age to continue in office for such period as may be necessary to enable him or her to deliver judgment or to do any other thing in relation to proceedings that were commenced before him or her before he or she attained that age;
2. a person may be appointed as President of the Court of Appeal or as a Justice of Appeal for a fixed period of three years notwithstanding that he or she has attained the age referred to in this subsection or that he or she will before the expiry of his or her appointment have attained that age; and
3. the appointment as President of the Court of Appeal or as Justice of Appeal serving for a fixed period under paragraph (ii) above shall not affect the date at which he or she is due to retire.
A judge of the Court of Appeal may be removed from office only for inability to perform the functions of his or her office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section.
If the President considers that the question of removing a judge of the Court of Appeal under this section ought to be investigated then—
1. he or she shall appoint a tribunal which shall consist of a Chairman and not less than two other members, who hold or have held high judicial office;
2. the tribunal shall enquire into the matter and report on the facts thereof to the President and advise the President whether the judge ought to be removed from office under this section for inability as aforesaid or for misbehaviour.
Where a tribunal, appointed under subsection (3) of this section, advises the President that a judge of the Court of Appeal ought to be removed from office for inability as aforesaid or for misbehaviour, the President shall remove such judge from office.
If the question of removing a judge of the Court of Appeal from office has been referred to a tribunal under subsection (3) of this section, the President may suspend the judge from performing the functions of his or her office, and any such suspension may at any time be revoked by the President and shall in any case cease to have effect if the tribunal advises the President that the judge ought not to be removed from office.

102. Oaths to be taken by judges of Court of Appeal

A judge of the Court of Appeal shall not enter upon the duties of his or her office unless he or she has taken and subscribed such oath for the due execution of his or her office as may be prescribed by Parliament.

PART III. Judicial Service Commission (ss 103-104)

103. Composition and procedure

There shall be a Judicial Service Commission for Botswana which shall consist of—
1. the Chief Justice who shall be Chairman;
2. the President of the Court of Appeal (not being the Chief Justice or the most Senior Justice of the Court of Appeal);
3. the Attorney-General;
4. the Chairman of the Public Service Commission;
5. a member of the Law Society nominated by the Law Society; and
6. a person of integrity and experience not being a legal practitioner appointed by the President.
A member nominated under paragraph (e) or appointed under paragraph (f) of subsection (1) shall hold office for a period of two years, but shall be eligible for re-nomination or re-appointment, as the case may be, for another term of office for two years:Provided that—
1. a member nominated under paragraph (e) may be removed from office by the rest of the members of the Commission acting together only for inability of the member to discharge the functions of his or her office whether arising from infirmity of mind or body or any other cause or for gross misbehaviour; or
2. a member appointed under paragraph (f) may be removed from office by the President only for inability of the member to discharge the functions of his or her office whether arising from infirmity of mind or body or any other cause or for gross misbehaviour.
A member of the Commission shall not enter upon the duties of his or her office until he or she has taken and subscribed such oath for the due execution of his or her office as may be prescribed by Parliament.
The Judicial Service Commission shall not be subject to the direction or control of any other person or authority in the exercise of its functions under this Constitution.
The Commission may regulate its own procedure and, subject to that procedure, may act notwithstanding any vacancy in its membership or the absence of any member and its proceedings shall not be invalidated by the presence or participation of any person not entitled to be present at or to participate in those proceedings.
The decisions of the Commission shall be by the vote of a majority of the members present, and in the event of an equality of votes, the Chairman shall have a casting vote.

104. Appointment, etc., of judicial officers

Power to appoint persons to hold or act in offices to which this section applies, to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office shall vest in the President acting in accordance with the advice of the Judicial Service Commission.
The offices to which this section applies are—
1. the office of Registrar of the Court of Appeal and High Court;
2. all offices of magistrate;
3. such other offices of President or member of any court or connected with any court as may be prescribed by or under an Act of Parliament.
In this section references to a court do not include references to a court martial.

PART IV. Interpretation of the Constitution (ss 105-106)

105. Reference to High Court of cases involving interpretation of Constitution

Where any question as to the interpretation of this Constitution arises in any proceedings in any subordinate court and the court is of the opinion that the question involves a substantial question of law, the court may, and shall, if any party to the proceedings so requests, refer the question to the High Court.
Where any question is referred to the High Court in pursuance of this section, the High Court shall give its decision upon the question and the court in which the question arose shall, subject to any appeal, dispose of the case in accordance with that decision.

106. Appeal to Court of Appeal

An appeal shall lie as of right to the Court of Appeal from any decision of the High Court which involves the interpretation of this Constitution, other than a decision of the High Court under section 69(1) of this Constitution:

Provided that no appeal shall lie from a determination of the High Court under this section dismissing an application on the ground that it is frivolous or vexatious.