Section 3-10 Botswana Constitution 1966

Section 3-10 Constitution of Botswana 1966

Section 3, 4, 5, 6, 7, 8, 9, 10 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 3 Botswana Constitution 1966

Fundamental rights and freedoms of the individual

Whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his or her race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest to each and all of the following, namely—

a. life, liberty, security of the person and the protection of the law;

b. freedom of conscience, of expression and of assembly and association; and

c. protection for the privacy of his or her home and other property and from deprivation of property without compensation,

the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.

Section 4 Botswana Constitution 1966

Protection of right to life

1. No person shall be deprived of his or her life intentionally save in execution of the sentence of a court in respect of an offence under the law in force in Botswana of which he or she has been convicted.

2. A person shall not be regarded as having been deprived of his or her life in contravention of subsection (1) of this section if he or she dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable—

a. for the defence of any person from violence or for the defence of property;
b. in order to effect a lawful arrest or to prevent the escape of a person
lawfully detained;
c. for the purpose of suppressing a riot, insurrection or mutiny; or
d. 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.

Section 5 Botswana Constitution 1966

Protection of right to personal liberty

1. 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—
a. 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;
b. in execution of the order of a court of record punishing him or her for
contempt of that or another court;
c. in execution of the order of a court made to secure the fulfilment of any
obligation imposed on him or her by law;
d. for the purpose of bringing him or her before a court in execution of the
order of a court;
e. upon reasonable suspicion of his or her having committed, or being about to
commit, a criminal offence under the law in force in Botswana;
f. 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;
g. for the purpose of preventing the spread of an infectious or contagious
disease;
h. in the case of a person who is, or is reasonably suspected to be, of unsound
mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his or
her care or treatment or the protection of the community;
i. for the purpose of preventing the unlawful entry of that person into
Botswana, or for the purpose of effecting the expulsion, extradition or
other lawful removal of that person from Botswana, or for the purpose of
restricting that person while he or she is being conveyed through Botswana
in the course of his or her extradition or removal as a convicted prisoner
from one country to another;
j. to such extent as may be necessary in the execution of a lawful order
requiring that person to remain within a specified area within Botswana or
prohibiting him or her from being within such an area, or to such extent as
may be reasonably justifiable for the taking of proceedings against that
person relating to the making of any such order, or to such extent as may be
reasonably justifiable for restraining that person during any visit that he or
she is permitted to make to any part of Botswana in which, in consequence
of any such order, his or her presence would otherwise be unlawful; or
k. for the purpose of ensuring the safety of aircraft in flight.

2. Any person who is arrested or detained shall be informed as soon as reasonably
practicable, in a language that he or she understands, of the reasons for his or
her arrest or detention.

3. Any person who is arrested or detained—
a. for the purpose of bringing him or her before a court in execution of the
order of a court; or
b. 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.

4. Any person who is unlawfully arrested or detained by any other person shall be
entitled to compensation therefor from that other person.

Section 6 Botswana Constitution 1966

Protection from slavery and forced labour

1. No person shall be held in slavery or servitude.

2. No person shall be required to perform forced labour.

3. For the purposes of this section, the expression “forced labour” does not
include—
a. any labour required in consequence of the sentence or order of a court;
b. 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;
c. any labour required of a member of a disciplined force in pursuance of his
or her duties as such or, in the case of a person who has conscientious
objections to service as a member of a naval, military or air force, any
labour that that person is required by law to perform in place of such
service;
d. any labour required during any period of public emergency or in the event
of any other emergency or calamity that threatens the life and well-being of
the community, to the extent that the requiring of such labour is reasonably
justifiable in the circumstances of any situation arising or existing during
that period or as a result of that other emergency or calamity, for the
purpose of dealing with that situation; or
e. any labour reasonably required as part of reasonable and normal communal
or other civic obligations.

Section 7 Botswana Constitution 1966

Protection from inhuman treatment

1. No person shall be subjected to torture or to inhuman or degrading punishment
or other treatment.

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 authorizes the infliction of any description of punishment that was
lawful in the country immediately before the coming into operation of this
Constitution.

Section 8 Botswana Constitution 1966

Protection from deprivation of property

1. No property of any description shall be compulsorily taken possession of, and no
interest in or right over property of any description shall be compulsorily
acquired, except where the following conditions are satisfied, that is to say—

a. the taking of possession or acquisition is necessary or expedient—
i. in the interests of defence, public safety, public order, public morality,
public health, town and country planning or land settlement;
ii. in order to secure the development or utilization of that, or other,
property for a purpose beneficial to the community; or
iii. in order to secure the development or utilization of the mineral
resources of Botswana; and

b. provision is made by a law applicable to that taking of possession or
acquisition—
i. for the prompt payment of adequate compensation; and
ii. 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.

2. No person who is entitled to compensation under this section shall be prevented
from remitting, within a reasonable time after he or she has received any
amount of that compensation, the whole of that amount (free from any
deduction, charge or tax made or levied in respect of its remission) to any
country of his or her choice outside Botswana.

3. Subsection (1)(b)(i) of this section shall be deemed to be satisfied in relation to
any 30 of 1969 Law applicable to the taking of possession of minerals or the
acquisition of rights to minerals if that law makes provision for the payment at
reasonable intervals of adequate royalties.

4. Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of subsection (2) of this section to the
extent that the law in question authorizes—
a. 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
b. the imposition of reasonable restrictions on the manner in which any
amount of compensation is to be remitted.

5. Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of subsection (1) of this section—
a. to the extent that the law in question makes provision for the taking of
possession or acquisition of any property—
i. in satisfaction of any tax, rate or due;
ii. 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;
iii. as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge
or contract;
iv. in the execution of judgments or orders of a court in proceedings for
the determination of civil rights or obligations;
v. 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;
vi. in consequence of any law with respect to the limitation of actions; or
vii. 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

b. to the extent that the law in question makes provision for the taking of
possession or acquisition of—
i. enemy property;
ii. 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;
iii. 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
iv. 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.

6. Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of subsection (1) of this section to the
extent that the law in question makes provision for the compulsory taking of
possession in the public interest of any property, or the compulsory acquisition
in the public interest in or right over property, where that property, interest or
right is held by a body corporate established by law for public purposes in which
no moneys have been invested other than moneys provided by Parliament.

Section 9 Botswana Constitution 1966

Protection for privacy of home and other property

1. 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.

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, public health, town and country planning, the
development and utilization of mineral resources, for the purpose of any
census or in order to secure the development or utilization of any property
for a purpose beneficial to the community;
b. that is reasonably required for the purpose of protecting the rights or
freedoms of other persons;
c. that authorizes an officer or agent of the Government of Botswana, a local
government authority or a body corporate established by law for a public
purpose to enter on the premises of any person in order to inspect those
premises or anything thereon for the purpose of any tax, rate or duty or in
order to carry out work connected with any property that is lawfully on
those premises and that belongs to that Government, authority or body
corporate, as the case may be; or
d. that authorizes, for the purpose of enforcing the judgment or order of a
court in any civil proceedings, the search of any person or property by
order of a court or entry upon any premises by such order,
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.

Section 10 Botswana Constitution 1966

Provisions to secure protection of law

1. If any person is charged with a criminal offence, then, unless the charge is
withdrawn, the case shall be afforded a fair hearing within a reasonable time by
an independent and impartial court established or recognized by law.

2. Every person who is charged with a criminal offence—

a. shall be presumed to be innocent until he or she is proved or has pleaded
guilty;
b. shall be informed as soon as reasonably practicable, in a language that he or
she understands and in detail, of the nature of the offence charged;
c. shall be given adequate time and facilities for the preparation of his or her
defence;
d. shall be permitted to defend himself or herself before the court in person
or, at his or her own expense, by a legal representative of his or her own
choice;
e. shall be afforded facilities to examine in person or by his or her legal
representative the witnesses called by the prosecution before the court,
and to obtain the attendance and carry out the examination of witnesses to
testify on his or her behalf before the court on the same conditions as those
applying to witnesses called by the prosecution; and
f. shall be permitted to have without payment the assistance of an interpreter
if he or she cannot understand the language used at the trial of the charge,
and 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.

3. When a person is tried for any criminal offence, the accused person or any
person authorized by him or her in that behalf shall, if he or she so requires and
subject to payment of such reasonable fee as may be prescribed by law, be given
within a reasonable time after judgment a copy for the use of the accused person
of any record of the proceedings made by or on behalf of the court.

4. No person shall be held to be guilty of a criminal offence on account of any act or
omission that did not, at the time it took place, constitute such an offence, and
no penalty shall be imposed for any criminal offence that is severer in degree or
description than the maximum penalty that might have been imposed for that
offence at the time when it was committed.

5. No person who shows that he or she has been tried by a competent court for a
criminal offence and either convicted or acquitted shall again be tried for that
offence or for any other criminal offence of which he or she could have been
convicted at the trial for that offence, save upon the order of a superior court in
the course of appeal or review proceedings relating to the conviction or
acquittal.

6. No person shall be tried for a criminal offence if he or she shows that he or she
has been pardoned for that offence.

7. No person who is tried for a criminal offence shall be compelled to give evidence
at the trial.

8. No 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.

9. Any court or other adjudicating authority prescribed by law for the
determination of the existence or extent of any civil right or obligation shall be
established or recognized by law and shall be independent and impartial; and
where proceedings for such a determination are instituted by any person before
such a court or other adjudicating authority, the case shall be given a fair hearing
within a reasonable time.

10. Except with the agreement of all the parties thereto, all proceedings of every
court and proceedings for the determination of the existence or extent of any
civil right or obligation before any other adjudicating authority, including the
announcement of the decision of the court or other authority, shall be held in
public.

11. Nothing in subsection (10) shall prevent the court or other adjudicating
authority from excluding from the proceedings persons other than the parties
thereto and their legal representatives to such extent as the court or other
authority—
a. may consider necessary or expedient in circumstances where publicity
would prejudice the interests of justice or in interlocutory proceedings; or
b. may be empowered by law to do so in the interests of defence, public
safety, public order, public morality, the welfare of persons under the age of
18 years or the protection of the private lives of persons concerned in the
proceedings.

12. Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of—
a. 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;
b. 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);
c. 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;
d. 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;
e. 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.

13. In the case of any person who is held in lawful detention, the provisions of
subsection (1), subsection (2)(d) and (e) and subsection (3) of this section shall
not apply in relation to his or her trial for a criminal offence under the law
regulating the discipline of persons held in such detention.

14. In this section “criminal offence” means a criminal offence under the law in force
in Botswana.

See also:

Section 11-19 Botswana Constitution 1966

Section 1-2 Botswana Constitution 1966 (The Republic)