Botswana 1966 Constitution (reviewed 2016) - Page 6 of 10

Table of Contents

CHAPTER VII. The Public Service (ss 108-116)

108. Power to specify qualifications for certain offices

Subject to the provisions of this Constitution and of any Act of Parliament, power to specify the qualifications and disqualifications for holding such public offices as he or she may constitute shall vest in the President.

109. Public Service Commission

There shall be a Public Service Commission for Botswana which shall consist of a Chairman and not less than two nor more than four other members.
The members of the Public Service Commission shall be appointed by the President.
A person shall not be qualified for appointment as a member of the Public Service Commission if he or she is a Member of the National Assembly or a public officer, or is or has within the two years immediately preceding his or her appointment been actively engaged in politics.
For the purposes of this section a person shall be deemed to be or to have been actively engaged in politics in circumstances in which he or she would be deemed to be or to have been so engaged for the purposes of section 64(4)(b) of this Constitution.
Subject to the provisions of this section, the office of a member of the Public Service Commission shall become vacant—
1. at the expiration of three years from the date of his or her appointment;
2. if any circumstances arise that, if he or she were not a member of the Commission, would cause him or her to be disqualified for appointment as such; or
3. if he or she is removed from office in accordance with the provisions of subsection (6) of this section.
Subject to subsection (7) of this section a member of the Public Service Commission may be removed from office by the President for inability to discharge the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour.
If the President considers that the question of removing a member of the Public Service Commission under subsection (6) of this section ought to be investigated, then—
1. the President shall appoint a tribunal which shall consist of a Chairman and not less than two other members selected by the Chief Justice from among persons who hold or have held high judicial office; and
2. the tribunal shall enquire into the matter and report on the facts thereof to the President and recommend to him or her whether the member ought to be removed under subsection (6) of this section, and the President shall act in accordance with that recommendation.
A member of the Public Service Commission shall not be removed from office except in accordance with the provisions of this section.
If the office of Chairman of the Public Service Commission is vacant or if the person holding that office 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 person holding that office has resumed those functions, as the case may be, those functions shall be performed by such one of the other members of the Commission as may be designated in that behalf by the President.
If at any time there are less than two members of the Public Service Commission besides the Chairman or if any such member is appointed to act as Chairman or is for any reason unable to perform the functions of his or her office, the President may appoint a person who is qualified for appointment as a member of the Commission to act as a member, and any person so appointed shall, subject to the provisions of subsection (5)(b) of this section, continue to act until the office in which he or she is acting is filled, or as the case may be, until the holder thereof resumes his or her functions or until his or her appointment to act is revoked by the President.
Except as provided in subsection (13) of this section the Public 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.
A member of the Commission shall not enter upon the duties of his or her office until he or she has taken and subscribed the oath of allegiance and such oath for the due execution of his or her office as may be prescribed by Parliament.
Provision may be made by or under an Act of Parliament prescribing the procedure of the Commission and, subject thereto, the Commission may regulate its own procedure.
Except as may be otherwise provided in its rules or procedure, the Commission 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.
Any decision of the Commission shall require the concurrence of a majority of all the members thereof.
A member of the Commission shall not, during the tenure of his or her office or during the three years immediately following such tenure, be eligible for appointment to any public office other than that of Ambassador, High Commissioner or other principal representative of Botswana in any other country or accredited to any international organization.

110. Appointment, etc., of public officers

Subject to the provisions of this section and of sections 111, 113 and 114 of this Constitution, power to appoint persons to hold or to act in any office in the public service, to exercise disciplinary control over persons holding or acting in such offices and to remove from such offices shall vest in such person or persons as may be prescribed by Act of Parliament.
The provisions of this section shall not apply in relation to the following offices, that is to say—
1. the office of judge of the Court of Appeal or of the High Court;
2. any office to which section 104 or 112 of the Constitution applies.
Before any person or persons as may have been prescribed under the provisions of subsection (1) exercise power to appoint to or to act in any public office any person who holds or is acting in any office the power to make appointments to which is vested by this Constitution in the President acting in accordance with the advice of the Judicial Service Commission such person shall consult with the Judicial Service Commission.

111. Appeals to President

Any person other than a member of the Botswana Police Force or the Prison Service who has been removed from office or subjected to any other punishment by the exercise of any powers conferred on any person under the provisions of section 110 of this Constitution may appeal to the Public Service Commission who may dismiss such appeal or allow it wholly or in part.
Subject to the provisions of subsection (3) every decision of the Public Service Commission under the provisions of this section shall be final.
Notwithstanding anything contained in subsection (2) if the Public Service Commission dismisses an appeal or allows it in part only the person who appealed may appeal to the President.
If any person appeals to the President in accordance with the provisions of subsection (3) of this section the President shall either dismiss the appeal or shall order that it be heard by a tribunal appointed by the President, the Chairman of which shall be a person who holds or has held high judicial office or is qualified to be appointed as a judge of the High Court.
If the President appoints a tribunal to hear an appeal in accordance with subsection (4) of this section the tribunal shall hear the appeal and shall advise the President whether or not the appeal should be allowed either wholly or in part, and the President shall act in accordance with that advice.

112. Powers of President in relation to certain public offices

The power to appoint a person to hold or act in offices to which this section applies and to remove from office and to exercise disciplinary control over persons holding or acting in such offices shall, subject to the provisions of sections 113 and 114 of this Constitution, vest in the President.
The offices to which this section applies are—
1. Ambassador, High Commissioner or other principal representative of Botswana in any other country or accredited to any international organisation;
2. Secretary to the Cabinet;
3. Attorney-General;
4. Director of Public Prosecutions;
5. Permanent Secretary;
6. Commissioner of Police; and
7. any other superscale office (other than an office to which this Constitution makes specific provision for appointment or an office to which appointment is made under the provisions of section 104 of this Constitution) which may be prescribed by Act of Parliament.

113. Tenure of office of Director of Public Prosecutions

Subject to the provisions of this section, a person appointed as Director of Public Prosecutions shall hold office for a 5 year renewable term or until he or she attains the age of 60 years, whichever is the earlier.
A person holding the office of Director of Public Prosecutions 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 any other cause) or for misbehaviour or for incompetence 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 person holding the office of Director of Public Prosecutions from office 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; and
2. the tribunal shall enquire into the matter and report on the facts thereof to the President and advise the President whether the person holding the office of Director of Public Prosecutions ought to be removed from office under this section for inability as aforesaid or for misbehaviour or for incompetence.
Where a tribunal appointed under subsection (3) of this section advises the President that a person holding the office of Director of Public Prosecutions ought to be removed from office for inability as aforesaid or for misbehaviour or for incompetence, the President shall remove such person from office.
If the question of removing a person holding the office of Director of Public Prosecutions from office has been referred to a tribunal under this section, the President may suspend that person 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 person ought not to be removed from office.

114. Tenure of office of Auditor-General

Subject to the provisions of this section, a person holding the office of Auditor-General shall vacate his or her office when he or she attains the age of 60 years or such other age as may be prescribed by Parliament.
A person holding the office of Auditor-General 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 any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.
If the National Assembly resolves that the question of removing a person holding the office of Auditor-General from office under this section ought to be investigated then—
1. the Assembly shall, by resolution, 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 Assembly;
3. the Assembly shall consider the report of the tribunal at the first convenient sitting of the Assembly after it is received and may, upon such consideration, by resolution, remove the Auditor-General from office.
If the question of removing a person holding the office of Auditor-General from office has been referred to a tribunal under this section, the National Assembly may, by resolution, suspend that person from performing the functions of his or her office, and any such suspension may at any time be revoked by the Assembly by resolution and shall in any case cease to have effect if, upon consideration of the report of the tribunal in accordance with the provisions of this section, the Assembly does not remove the Auditor-General from office.

115. Pensions laws and protection of pensions rights

The law to be applied with respect to any pensions benefits that were granted to any person before the coming into operation of this Constitution shall be the law that was in force at the date on which those benefits were granted or any law in force at a later date that is not less favourable to that person.
The law to be applied with respect to any pensions benefits (not being benefits to which subsection (1) of this section applies) shall—
1. in so far as those benefits are wholly in respect of a period of service as a public officer that commenced before the date on which this Constitution comes into operation, be the law that was in force immediately before that date; and
2. in so far as those benefits are wholly or partly in respect of a period of service as a public officer that commenced after the date on which this Constitution comes into operation, be the law in force on the date on which that period of service commenced,
or any law in force at a later date that is not less favourable to that person.
Where a person is entitled to exercise an option as to which of two or more laws shall apply in his or her case, the law for which he or she opts shall, for the purposes of this section, be deemed to be more favourable to him or her than the other law or laws.
All pensions benefits shall (except to the extent to which under any law providing for the funding of pensions benefits they are a charge on a fund established by that law and have been duly paid out of that fund to the person or authority to whom payment is due) be a charge on the Consolidated Fund.
In this section “pensions benefits” means any pensions, compensation, gratuities or other like allowances for persons in respect of their service as public officers or as members of the armed forces or for the widows, children, dependants or personal representatives of such persons in respect of such service.
References in this section to the law with respect to pensions benefits include (without prejudice to their generality) references to the law regulating the circumstances in which such benefits may be granted or in which the grant of such benefits may be refused, the law regulating the circumstances in which any such benefits that have been granted may be withheld, reduced in amount or suspended and the law regulating the amount of any such benefits.
In this section references to service as a public officer include references to service as a public officer of the former Protectorate of Bechuanaland.

116. Power of Commissions in relation to pensions, etc

Where under any law any person or authority has a discretion—
1. to decide whether or not any pensions benefits shall be granted; or
2. to withhold, reduce in amount or suspend any such benefits that have been granted,
those benefits shall be granted and may not be withheld, reduced in amount or suspended unless the appropriate Commission concurs in the refusal to grant the benefits or, as the case may be, in the decision to withhold them, reduce them in amount or suspend them.
Where the amount of any pensions benefits that may be granted to any person is not fixed by law, the amount of the benefits to be granted to him or her shall be the greatest amount for which he or she is eligible unless the appropriate Commission concurs in his or her being granted benefits of a smaller amount.
The appropriate Commission shall not concur under subsection (1) or subsection (2) of this section in action taken on the ground that any person who holds or has held the office of a judge of the Court of Appeal or of the High Court or the Auditor-General or Director of Prosecutions has been guilty of misbehaviour unless he or she has been removed from office by reason of such misbehaviour.
In this section “the appropriate Commission” means—
1. in the case of benefits for which any person may be eligible in respect of the service in the public service of a person who, immediately before he ceased to be a public officer, was subject to the disciplinary control of the Judicial Service Commission or that have been granted in respect of such service, the Judicial Service Commission;
2. in any other case, the Public Service Commission.
In this section “pensions benefits” means any pensions, compensation, gratuities or other like allowances for persons in respect of their service as public officers (including service as public officers of the former Protectorate of Bechuanaland) or for the widows, children, dependants or personal representatives of such persons in respect of such service.