Section 11-19 Botswana Constitution 1966

Section 11-19 Constitution of Botswana 1966

Section 11, 12, 13, 14, 15, 16, 17, 18, 19 of the Constitution of Botswana 1966, among others, are under Chapter II of the Constitution. Chapter II is titled Protection of Fundamental Rights and Freedoms of the Individual.

Section 11 Botswana Constitution 1966

Protection of freedom of conscience

1. 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.

2. 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.

3. 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.

4. 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.

5. 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—
a. in the interests of defence, public safety, public order, public morality or
public health; or
b. 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.

Section 12 Botswana Constitution 1966

Protection of freedom of expression

1. Except with his or her own consent, no person shall be hindered in the
enjoyment of his or her freedom of expression, that is to say, freedom to hold
opinions without interference, freedom to receive ideas and information
without interference, freedom to communicate ideas and information without
interference (whether the communication be to the public generally or to any
person or class of persons) and freedom from interference with his or her
correspondence.

2. 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—
a. that is reasonably required in the interests of defence, public safety, public
order, public morality or public health; or

b. that is reasonably required for the purpose of protecting the reputations,
rights and freedoms of other persons or the private lives of persons
concerned in legal proceedings, preventing the disclosure of information
received in confidence, maintaining the authority and independence of the
courts, regulating educational institutions in the interests of persons
receiving instruction therein, or regulating the technical administration or
the technical operation of telephony, telegraphy, posts, wireless,
broadcasting or television; or

c. that imposes restrictions upon public officers, employees of local
government bodies, or teachers,
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.

Section 13 Botswana Constitution 1966

Protection of freedom of assembly and association

1. 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.

2. 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—
a. that is reasonably required in the interests of defence, public safety, public
order, public morality or public health;
b. that is reasonably required for the purpose of protecting the rights or
freedoms of other persons;
c. that imposes restrictions upon public officers, employees of local
government bodies, or teachers; or
d. 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.

See also  Section 107 Botswana Constitution 1966

Section 14 Botswana Constitution 1966

Protection of freedom of movement

1. 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.

2. 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.

3. 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—
a. 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;

b. for the imposition of restrictions on the freedom of movement of any
person who is not a citizen of Botswana;
c. 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;
d. for the imposition of restrictions upon the movement or residence within
Botswana of public officers; or
e. [Repealed.]

4. If any person whose freedom of movement has been restricted by order under
such a provision as is referred to in subsection (3)(a) of this section (other than a
restriction which is applicable to persons generally or to general classes of
persons) so requests at any time during the period of that restriction not earlier
than six months after the order was made or six months after he or she last
made such request, as the case may be, his or her case shall be reviewed by an
independent and impartial tribunal presided over by a person, qualified to be
enrolled as an advocate in Botswana, appointed by the Chief Justice.

5. On any review by a tribunal in pursuance of this section of the case of a person
whose freedom of movement has been restricted, the tribunal may make
recommendations, concerning the necessity or expediency of continuing the
restriction to the authority by which it was ordered but, unless it is otherwise
provided by law, that authority shall not be obliged to act in accordance with any
such recommendations.

Section 15 Botswana Constitution 1966

Protection from discrimination on the grounds of race, etc.

1. 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.

2. 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.

3. 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.

See also  Section 94 Botswana Constitution 1966

4. Subsection (1) of this section shall not apply to any law so far as that law makes
provision—
a. for the appropriation of public revenues or other public funds;
b. with respect to persons who are not citizens of Botswana;
c. with respect to adoption, marriage, divorce, burial, devolution of property
on death or other matters of personal law;
d. for the application in the case of members of a particular race, community
or tribe of customary law with respect to any matter whether to the
exclusion of any law in respect to that matter which is applicable in the case
of other persons or not; or
e. whereby persons of any such description as is mentioned in subsection (3)
of this section may be subjected to any disability or restriction or may be
accorded any privilege or advantage which, having regard to its nature and
to special circumstances pertaining to those persons or to persons of any
other such description, is reasonably justifiable in a democratic society.

5. Nothing contained in any law shall be held to be inconsistent with or in
contravention of subsection (1) of this section to the extent that it makes
reasonable provision with respect to qualifications for service as a public officer
or as a member of a disciplined force or for the service of a local government
authority or a body corporate established directly by any law.

6. Subsection (2) of this section shall not apply to anything which is expressly or by
necessary implication authorized to be done by any such provision of law as is
referred to in subsection (4) or (5) of this section.

7. 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 whereby persons of any such description as is
mentioned in subsection (3) of this section may be subjected to any restriction
on the rights and freedoms guaranteed by sections 9, 11, 12, 13 and 14 of this
Constitution, being such a restriction as is authorized by section 9(2), 11(5),
12(2) 13(2), or 14(3), as the case may be.

8. Nothing in subsection (2) of this section shall affect any discretion relating to the
institution, conduct or discontinuance of civil or criminal proceedings in any
court that is vested in any person by or under this Constitution or any other law.

9. Nothing contained in or done under the authority of any law shall be held to be
inconsistent with the provisions of this section—
a. 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
b. 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.

Section 16 Botswana Constitution 1966

Derogation from fundamental rights and freedoms

1. 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.

2. 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—
a. 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;
b. 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;
c. 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
d. 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.

3. On any review by a tribunal in pursuance of this section of the case of a detained
person, the tribunal may make recommendations, concerning the necessity or
expediency of continuing his or her detention, to the authority by which it was
ordered but, unless it is otherwise provided by law, that authority shall not be
obliged to act in accordance with any such recommendations.

See also  Section 20-29 Botswana Constitution 1966

Section 17 Botswana Constitution 1966

Declarations relating to emergencies

1. The President may at any time, by Proclamation published in the Gazette,
declare that a state of public emergency exists.

2. A declaration under subsection (1) of this section, if not sooner revoked, shall
cease to have effect—
a. 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
b. 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.

3. Subject to the provisions of subsection (4) of this section, a declaration approved
by a resolution of the National Assembly under subsection (2) of this section
shall continue in force until the expiration of a period of six months beginning
with the date of its being so approved or until such earlier date as may be
specified in the resolution:
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.

4. The National Assembly may by resolution at any time revoke a declaration
approved by the Assembly under this section.

Section 18 Botswana Constitution 1966

Enforcement of protective provisions

1. Subject to the provisions of subsection (5) of this section, if any person alleges
that any of the provisions of sections 3 to 16 (inclusive) of this Constitution has
been, is being or is likely to be contravened in relation to him or her, then,
without prejudice to any other action with respect to the same matter which is
lawfully available, that person may apply to the High Court for redress.

2. The High Court shall have original jurisdiction—
a. to hear and determine any application made by any person in pursuance of
subsection (1) of this section; or
b. 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.

3. If in any proceedings in any subordinate court any question arises as to the
contravention of any of the provisions of sections 3 to 16 (inclusive) of this
Constitution, the person presiding in that court may, and shall if any party to the
proceedings so requests, refer the question to the High Court unless, in his or
her opinion, the raising of the question is merely frivolous or vexatious.

4. Parliament may confer upon the High Court such powers in addition to those
conferred by this section as may appear to be necessary or desirable for the
purpose of enabling that court more effectively to exercise the jurisdiction
conferred upon it by this section.

5. Rules of court making provision with respect to the practice and procedure of
the High Court for the purposes of this section may be made by the person or
authority for the time being having power to make rules of court with respect to
the practice and procedure of that court generally

Section 19 Botswana Constitution 1966

Interpretation and savings

  1. 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;
    • “disciplinary law” means a law regulating the discipline of any disciplined
    force;

• “disciplined force” means—
a. a naval, military or air force;
b. a police force; or
c. 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.

2. In relation to any person who is a member of a disciplined force raised under an
Act of Parliament, nothing contained in or done under the authority of the
disciplinary law of that force shall be held to be inconsistent with or in
contravention of any of the provisions of this Chapter other than sections 4, 6
and 7.

3. In relation to any person who is a member of a disciplined force raised otherwise
than as aforesaid and lawfully present in Botswana, nothing contained in or done
under the authority of the disciplinary law of that force shall be held to be
inconsistent with or in contravention of any of the provisions of this Chapter.


See also:

Section 3-10 Botswana Constitution 1966

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