CHAPTER 08:01
PENAL CODE

 

ARRANGEMENT OF SECTIONS

 

   SECTION

 

 

 

PART I
General Provisions

 

Preliminary

 

   1.   Short title

 

 

 

Interpretation

 

   2.   Interpretation

 

   3.   Exclusion of common law

 

 

 

Territorial Application of this Code

 

   4.   Extent of jurisdiction of courts

 

   5.   Offence committed partly within and partly beyond the jurisdiction

 

 

 

General Rules as to Criminal Responsibility

 

   6.   Ignorance of law

 

   7.   Bona fide claim of right

 

   8.   Intention and motive

 

   9.   Mistake of fact

 

   10.   Presumption of sanity

 

   11.   Insanity

 

   12.   Intoxication

 

   13.   Immature age

 

   14.   Judicial officers

 

   15.   Compulsion

 

   16.   Defence of person or property

 

   17.   Use of force in effecting arrest

 

   18.   Compulsion by husband

 

   19.   Person not to be punished twice for same act or omission

 

   20.   Consent of Director of Public Prosecutions to prosecute

 

 

 

Parties to Offences

 

   21.   Principal offenders

 

   22.   Offences committed by joint offenders in prosecution of common purpose

 

   23.   Counselling another to commit an offence

 

   24.   Offences by corporations, societies, etc.

 

 

 

Punishments

 

   25.   Different kinds of punishments

 

   26.   Sentence of death

 

   27.   Imprisonment

 

   28.   Corporal punishment

 

   29.   Fines

 

   30.   Forfeiture

 

   31.   Security for keeping the peace or to come up for judgment

 

   32.   Discharge of offender without punishment

 

   33.   General punishment for offences

 

 

 

PART II
Crimes

 

DIVISION I
OFFENCES AGAINST PUBLIC ORDER

 

Treason and other Offences against the State's Authority

 

   34.   Treason

 

   35.   Instigating invasion

 

   36.   Concealment of treason

 

   37.   Treasonable offences

 

   38.   Promoting war or warlike undertaking

 

   39.   Certain persons deemed to threaten security or sovereignty of Botswana

 

   40.   Extenuating circumstances in treason and similar offences

 

   41.   Limitations as to trial for treason, etc.

 

   42.   Inciting to mutiny

 

   43.   Aiding members of the Forces in acts of mutiny

 

   44.   Inducing desertion

 

   45.   Aiding prisoners of war to escape

 

   46.   Definition of overt act

 

   47.   Prohibited publications

 

   48.   Penalty for prohibited publications

 

   49.   Seizure and disposal of prohibited publications

 

   50.   Seditious intention

 

   51.   Seditious offences

 

   52.   Prosecutions under section 51

 

   53.   Unlawful oaths to commit capital offences

 

   54.   Other unlawful oaths to commit offences

 

   55.   Compelling another person to take an oath

 

   56.   Compulsion, how far a defence

 

   57.   Person present deemed to consent to administering of oath unless he reports to authorities

 

   58.   Unlawful drilling

 

   59.   Alarming publications

 

 

 

Offences Affecting Relations with Foreign States and External Tranquillity

 

   60.   Defamation of foreign princes

 

   61.   Conspiracies, etc., in Botswana relating to the commission of acts of violence abroad

 

   62.   Piracy

 

   63.   Punishment of piracy

 

   64.   Jurisdiction over piracy

 

   65.   Hijacking and related offences

 

 

 

Unlawful Societies, Unlawful Assemblies, Riots and Other Offences
against Public Tranquillity

 

   66.   Unlawful society

 

   67.   Managing unlawful society

 

   68.   Being member of unlawful society

 

   69.   Prosecutions under sections 67 and 68

 

   70.   Powers of entry, arrest and search

 

   71.   Declaration by the President

 

   72.   Forfeiture of insignia, etc.

 

   73.   Subversive activities

 

   74.   Definition of unlawful assembly and riot

 

   75.   Punishment of unlawful assembly

 

   76.   Punishment of riot

 

   77.   Making proclamation for rioters to disperse

 

   78.   Dispersion of rioters after proclamation made

 

   79.   Rioting after proclamation

 

   80.   Preventing or obstructing the making of proclamation

 

   81.   Rioters demolishing buildings, etc.

 

   82.   Rioters injuring buildings, machinery, etc.

 

   83.   Riotously interfering with railway, etc.

 

   84.   Going armed in public

 

   85.   Possession of firearms, etc.

 

   86.   Forcible entry

 

   87.   Forcible detainer

 

   88.   Affray

 

   89.   Challenge to a duel

 

   90.   Offensive conduct conducive to breaches of the peace

 

   91.   Insults relating to Botswana

 

   92.   Expressions of hatred, etc. of persons because of race, etc.

 

   93.   Abusive, obscene or insulting language re: President and others

 

   94.   Discrimination

 

   95.   Threatening breach of the peace or violence

 

   96.   Incitement to violence and disobedience of the law

 

   97.   Assembling for smuggling

 

   98.   Wrongfully inducing a boycott

 

 

 

DIVISION II
OFFENCES AGAINST THE ADMINISTRATION OF LAWFUL AUTHORITY

 

Corruption and the Abuse of Office

 

   99.   Official corruption

 

   100.   Extortion by public officers

 

   101.   Public officers receiving property to show favour

 

   102.   Officers charged with administration of property of a special character or with special duties

 

   103.   False claims by officials

 

   104.   Abuse of office

 

   105.   False certificates by public officers, etc.

 

   106.   Unauthorized administration of oaths

 

   107.   False assumption of authority

 

   108.   Personating persons employed in the public service

 

   109.   Threat of injury to persons employed in public service

 

   110.   Tampering with public officers, etc.

 

 

 

Offences relating to the Administration of Justice

 

   111.   Perjury and subornation of perjury

 

   112.   False statements by interpreters

 

   113.   Punishment of perjury and subornation

 

   114.   Evidence on charge of perjury

 

   115.   Contradictory statements

 

   116.   Fabricating evidence

 

   117.   False swearing

 

   118.   Deceiving witnesses

 

   119.   Destroying evidence

 

   120.   Conspiracy to defeat justice and interference with witnesses

 

   121.   Compounding certain serious offences

 

   122.   Advertisements for stolen property

 

   123.   Offences relating to judicial proceedings

 

 

 

Rescues, Escapes and Obstructing Officers of Court of Law

 

   124.   Rescue

 

   125.   Escape

 

   126.   Aiding prisoners to escape

 

   127.   Removal, etc. of property under lawful seizure

 

   128.   Obstructing court officers

 

 

 

Miscellaneous Offences Against Public Authority

 

   129.   Frauds and breaches of trust by public officers

 

   130.   Neglect of official duty

 

   131.   False information to person employed in the public service

 

   132.   Disobedience of statutory duty

 

   133.   Disobedience of lawful orders

 

   134.   Undermining authority of public officers

 

   135.   Destruction, etc. of statutory documents

 

 

 

DIVISION III
OFFENCES INJURIES TO THE PUBLIC IN GENERAL

 

Offences relating to Religion

 

   136.   Insult to religion of any class

 

   137.   Disturbing religious assemblies

 

   138.   Trespassing on burial places

 

   139.   Hindering burial of dead body, etc.

 

   140.   Writing or uttering words with intent to wound religious feelings

 

 

 

Offences against Morality

 

   141.   Definition of rape

 

   142.   Punishment of rape

 

   143.   Attempted rape

 

   144.   Abduction of a person for immoral purposes

 

   145.   Abduction of person under 16 years

 

   146.   Indecent assaults

 

   147.   Defilement of person under 16 years

 

   148.   Defilement of idiots or imbeciles

 

   149.   Procuration

 

   150.   Procuring defilement of person by threats or fraud or administering drugs

 

   151.   Householder, etc. permitting defilement of person under 16 years of age on his or her premises

 

   152.   Householder, etc. permitting defilement of person under 12 years of age on his or her premises

 

   153.   Detention of persons for immoral purposes

 

   154.   Power of search for detained person

 

   155.   Person living on earnings of prostitution or persistently soliciting

 

   156.   Person aiding, etc. for gain, prostitution

 

   157.   Premises used for prostitution

 

   158.   Brothels

 

   159.   Conspiracy to defile

 

   160.   Attempts to procure abortion

 

   161.   Woman with child procuring abortion

 

   162.   Supplying drugs or instruments to procure abortion

 

   163.   Knowledge of age of person immaterial

 

   164.   Unnatural offences

 

   165.   Attempt to commit unnatural offences

 

   166.   Indecent assault of boys under 14

 

   167.   Indecent practices between persons

 

   168.   Incest

 

   169.   Incest by females

 

   170.   Test of relationship

 

   171.   Sanction of Director of Public Prosecutions

 

 

 

Offences Relating to Marriage and the Possession of Children

 

   172.   Fraudulent pretence of marriage

 

   173.   Bigamy

 

   174.   Marriage with dishonest or fraudulent intent

 

   175.   Child stealing

 

 

 

Nuisances and Offences Against Health and Convenience

 

   176.   Common nuisance

 

   177.   Chain letters

 

   178.   Traffic in obscene publications

 

   179.   Idle and disorderly persons

 

   180.   Use of insulting language

 

   181.   Nuisances by drunken persons, etc.

 

   182.   Rogues and vagabonds

 

   183.   Wearing uniforms declared to be for exclusive use

 

   184.   Spreading infection

 

   185.   Adulteration of food or drink for sale

 

   186.   Sale of noxious food or drink

 

   187.   Adulteration of drugs

 

   188.   Sale of adulterated drugs

 

   189.   Fouling water

 

   190.   Fouling air

 

   191.   Offensive trades

 

 

 

Defamation

 

   192.   Definition of criminal defamation

 

   193.   Definition of defamatory matter

 

   194.   Definition of publication

 

   195.   Definition of unlawful publication

 

   196.   Cases in which publication of defamatory matter is absolutely privileged

 

   197.   Cases in which publication of defamatory matter is conditionally privileged

 

   198.   Explanation as to good faith

 

   199.   Presumption as to good faith

 

 

 

DIVISION IV
OFFENCES AGAINST THE PERSON

 

Murder and Manslaughter

 

   200.   Manslaughter

 

   201.   Punishment of manslaughter

 

   202.   Murder

 

   203.   Punishment of murder

 

   204.   Malice aforethought

 

   205.   Killing on provocation

 

   206.   Provocation defined

 

   207.   Suicide pacts

 

   208.   Infanticide

 

   209.   Causing death defined

 

   210.   When child deemed to be a person capable of being killed

 

   211.   Limitation as to time of death

 

 

 

Duties relating to the Preservation of Life and Health

 

   212.   Responsibility of person who has charge of another

 

   213.   Duty of person having custody of child

 

   214.   Duty of employer of child

 

   215.   Duty of persons doing dangerous acts

 

   216.   Duty of persons in charge of dangerous things

 

 

 

Offences connected with Murder and Suicide

 

   217.   Attempt to murder

 

   218.   Attempt to murder by convict

 

   219.   Accessory after the fact to murder

 

   220.   Threat to kill

 

   221.   Conspiracy to murder

 

   222.   Aiding suicide

 

   223.   Concealing birth

 

   224.   Killing unborn child

 

 

 

Offences Endangering Life and Health

 

   225.   Disabling in order to commit offence

 

   226.   Stupefying in order to commit offence

 

   227.   Acts intended to cause grievous harm or prevent arrest

 

   228.   Preventing escape from wreck

 

   229.   Intentionally endangering safety of persons travelling by railway

 

   230.   Grievous harm

 

   231.   Attempting to injure by explosives

 

   232.   Maliciously administering poison with intent to harm

 

   233.   Unlawful wounding and poisoning

 

   234.   Intimidation and molestation

 

   235.   Failure to supply necessaries

 

   236.   Surgical operation

 

   237.   Excess of force

 

   238.   Consent

 

 

 

Criminal Recklessness and Negligence

 

   239.   Reckless and negligent acts

 

   240.   Other negligent acts causing harm

 

   241.   Dealing in poisonous substances in negligent manner

 

   242.   Endangering safety of persons travelling by railway

 

   243.   Exhibition of false light, mark or buoy

 

   244.   Conveying person by water for hire in unsafe or overloaded vessel

 

   245.   Danger or obstruction in public way or river

 

 

 

Assaults

 

   246.   Common assault

 

   247.   Assaults occasioning actual bodily harm

 

   248.   Assaults on persons protecting wreck

 

   249.   Other assaults

 

 

 

Offences Against Liberty

 

   250.   Definition of kidnapping from Botswana

 

   251.   Definition of kidnapping from lawful guardianship

 

   252.   Definition of abduction

 

   253.   Punishment for kidnapping

 

   254.   Kidnapping or abducting in order to murder

 

   255.   Kidnapping or abducting with intent to confine

 

   256.   Kidnapping or abducting in order to subject person to grievous harm, slavery, etc.

 

   257.   Wrongfully concealing or keeping in confinement kidnapped or abducted person

 

   258.   Kidnapping or abducting child under 14 years with intent to steal from its person

 

   259.   Punishment for wrongful confinement

 

   260.   Detaining person as a slave

 

   261.   Dealing in slaves

 

   262.   Unlawful compulsory labour

 

 

 

DIVISION V
OFFENCES RELATING TO PROPERTY

 

Theft

 

   263.   Things capable of being stolen

 

   264.   Definition of stealing

 

   265.   Special case of factor

 

   266.   Funds etc. held under direction

 

   267.   Funds, etc. received by agents for sale

 

   268.   Money received for another

 

   269.   Theft by persons having an interest in the thing stolen

 

   270.   Husband and wife

 

   271.   General punishment for theft

 

   272.   Stealing wills

 

   273.   Stealing postal matter, etc.

 

   274.   Stealing stock

 

   275.   Stealing from the person: stealing goods in transit, etc.

 

   276.   Stealing by persons in public service

 

   277.   Stealing by clerks and servants

 

   278.   Stealing by directors or officers of companies

 

   279.   Stealing by agents, etc.

 

   280.   Stealing by tenants or lodgers

 

   281.   Stealing after previous conviction

 

 

 

Offences Allied to Stealing

 

   282.   Concealing registers

 

   283.   Concealing wills

 

   284.   Concealing deeds

 

   285.   Killing animals with intent to steal

 

   286.   Severing with intent to steal

 

   287.   Fraudulent disposal of mortgaged goods

 

   288.   Fraudulently dealing with minerals in mines

 

   289.   Fraudulent appropriation of power

 

   290.   Unlawful use of vehicles, animals, etc.

 

 

 

Robbery and Extortion

 

   291.   Definition of robbery

 

   292.   Punishment of robbery

 

   293.   Attempted robbery

 

   294.   Assault with intent to steal

 

   295.   Demanding property by written threats

 

   296.   Attempts at extortion by threats

 

   297.   Procuring execution of deeds, etc. by threats

 

   298.   Demanding property with menaces

 

 

 

Burglary, Housebreaking and Similar Offences

 

   299.   Definition of breaking and entering

 

   300.   Housebreaking and burglary

 

   301.   Entering dwelling-house with intent to commit certain serious offences

 

   302.   Breaking into building and committing certain serious offences

 

   303.   Breaking into building with intent to commit certain serious offences

 

   304.   Being armed, etc. with intent to commit certain serious offences

 

   305.   Criminal trespass

 

   306.   Forfeiture

 

 

 

False Pretences

 

   307.   Definition of false pretence

 

   308.   Obtaining by false pretences

 

   309.   Obtaining execution of a deed or security by false pretences

 

   310.   Cheating

 

   311.   Obtaining credit, etc. by false pretences

 

   312.   Conspiracy to defraud

 

   313.   Pretending to tell fortunes

 

   314.   Obtaining registration, etc. by false pretence

 

   315.   False declaration for passport

 

   316.   Travelling on train without free pass or a ticket prohibited

 

 

 

Receiving Property Stolen or Unlawfully Obtained and Like Offences

 

   317.   Receiving stolen property, etc.

 

   318.   Person suspected of carrying or conveying stolen property

 

   319.   Marking and possession of public stores

 

   320.   Receiving goods stolen outside Botswana

 

 

 

Frauds by Trustees and Persons in a Position of Trust, and False Accounting

 

   321.   Trustees fraudulently disposing of trust property

 

   322.   Fraudulent appropriation or accounting by directors or officers

 

   323.   False statements by officials of companies

 

   324.   Fraudulent false accounting by clerk or servant

 

   325.   False accounting by public officer

 

 

 

DIVISION VI
MALICIOUS INJURIES TO PROPERTY

 

Offences Causing Injury to Property

 

   326.   Arson

 

   327.   Attempts to commit arson

 

   328.   Setting fire to crops and growing plants

 

   329.   Attempting to set fire to crops, etc.

 

   330.   Casting away vessels

 

   331.   Attempts to cast away vessels

 

   332.   Injuring animals

 

   333.   Malicious injuries to property

 

   334.   Attempts to destroy property by explosives

 

   335.   Communicating infectious diseases to animals

 

   336.   Penalties for damage, etc. to railway works

 

   337.   Sabotage

 

   338.   Threats to burn, etc.

 

 

 

DIVISION VII
FORGERY, COINING AND COUNTERFEITING

 

Definitions

 

   339.   Definition of forgery

 

   340.   Document

 

   341.   Making a false document

 

   342.   Intent to defraud

 

 

 

Punishments for Forgery

 

   343.   Definition of currency note

 

   344.   General punishment for forgery

 

   345.   Forgery of wills, etc.

 

   346.   Forgery of judicial or official documents

 

   347.   Forgery, etc. of stamps

 

   348.   Uttering false document

 

   349.   Uttering cancelled or exhausted documents

 

   350.   Procuring execution of documents by false pretences

 

   351.   Altering crossings on cheques

 

   352.   Making documents without authority

 

   353.   Demanding property upon forged testamentary instruments

 

   354.   Purchasing forged notes

 

   355.   Falsifying warrants for money payable under public authority

 

   356.   Falsification of register

 

   357.   Sending false certificate of marriage to registrar

 

   358.   False statements for registers of births, deaths and marriages

 

 

 

Offences relating to Coins and to Bank and Currency Notes

 

   359.   Definitions

 

   360.   Counterfeiting coin

 

   361.   Preparations for coining

 

   362.   Making or having in possession paper or implements for forgery

 

   363.   Clipping

 

   364.   Melting down of currency

 

   365.   Impounding and destruction of counterfeit coin

 

   366.   Possession of clippings

 

   367.   Uttering counterfeit coin

 

   368.   Repeated uttering

 

   369.   Uttering metal or coin not current as coin

 

   370.   Exporting counterfeit coin

 

   371.   Selling articles bearing designs in imitation of currency

 

   372.   Forfeiture

 

 

 

Counterfeit Stamps

 

   373.   Possession of die used for purpose of making stamps

 

   374.   Paper and dies for postage stamps

 

 

 

Counterfeiting Trade Marks

 

   375.   Trade mark defined

 

   376.   Counterfeiting trade marks offence

 

 

 

Personation

 

   377.   Personation in general

 

   378.   Falsely acknowledging deeds, recognizances, etc.

 

   379.   Personation of a person named in a certificate

 

   380.   Lending, etc. certificate for personation

 

   381.   Personation of person named in a testimonial

 

   382.   Lending, etc. testimonial for personation

 

 

 

DIVISION VIII
OFFENCES RELATING TO CORRUPT PRACTICES

 

Secret Commissions and Corrupt Practices

 

   383.   Interpretation

 

   384.   Corrupt practices

 

   385.   Secret commission on Government contracts

 

   386.   Presumption as to corrupt practices

 

   387.   Consent of Director of Public Prosecutions to prosecution

 

 

 

DIVISION IX
ATTEMPTS AND CONSPIRACIES TO COMMIT CRIMES,
AND ACCESSORIES AFTER THE FACT

 

Attempts

 

   388.   Attempt defined

 

   389.   Attempts to commit offences

 

   390.   Punishment of attempts to commit certain offences

 

   391.   Soliciting or inciting others to commit offence

 

 

 

Conspiracies

 

   392.   Conspiracy to commit offence

 

   393.   Other conspiracies

 

 

 

Accessories After the Fact

 

   394.   Definition of accessories after the fact

 

   395.   Punishment of accessories after the fact

 

 

 

DIVISION X
INDECENT ADVERTISEMENTS

 

Prohibited Advertisements

 

   396.   Interpretation

 

   397.   Offence to publish prohibited advertisement

 

   398.   Offence to publish advertisement relating to abortion

 

   399.   Penalties

 

Law 2, 1964,
Law 14, 1965,
L.N. 23, 1965,
L.N. 55, 1965,
Act 4, 1966,
L.N. 84, 1966,
L.N. 94, 1966,
Act 42, 1967,
Act 26, 1968,
Act 53, 1969,
Act 11, 1970,
Act 27, 1972,
Act 16, 1975,
S.I. 71, 1975,
S.I. 10, 1976,
Act 21, 1977,
Act 15, 1979,
Act 44, 1980,
Act 20, 1982,
Act 19, 1986,
Act 14, 1989,
Act 15, 1991,
Act 13, 1993,
Act 5, 1998,
Act 39, 2004,
Act 14, 2005.

An Act to establish a code of criminal law.

[Date of Commencement: 10th June, 1964]

PART I
General Provisions
(ss 1-33)

Preliminary (s 1)

 

1.   Short title

   This Act may be cited as the Penal Code (hereinafter referred to as "this Code").

Interpretation (ss 2-3)

 

2.   Interpretation

    (1) Subject to subsection (2), in this Code, unless the context otherwise requires-

   "Act" includes any orders or rules or regulations made under the authority of any Act;

   "assault" means-

 

   (a)   the intentional application of force to the person of another, directly or indirectly; or

 

   (b)   the making of any gesture towards another in such a manner as to give him reasonable grounds to believe that the person making the gesture is about to apply such force to his person;

   "court" means a court of competent jurisdiction;

   "dangerous harm" means harm endangering life;

   "dwelling-house" includes any building or structure or part of a building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or servants or any of them, and it is immaterial that it is from time to time uninhabited; a building or structure adjacent to or occupied with a dwelling-house is deemed to be part of the dwelling-house if there is a communication between such building or structure and the dwelling-house, either immediate or by means of a covered and enclosed passage leading from the one to the other, but not otherwise;

   "explosive" has the meaning assigned to it in the Explosives Act;

   "goods" means corporeal movable property of any description;

   "grievous harm" means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, membrane or sense;

   "harm" means any bodily hurt, disease or disorder whether permanent or temporary;

   "judicial officer" means a judge, magistrate or member of a customary court;

   "judicial proceeding" includes any proceeding had or taken in or before any court, tribunal, commission of inquiry, or person, in which evidence may be taken on oath, or in or before a customary court, whether such court takes evidence on oath or not;

   "knowingly", used in connection with any term denoting uttering or using, implies knowledge of the character of the thing uttered or used;

   "local authority" includes a tribal administration;

   "magistrate" includes an administrative officer appointed as a magistrate under the Magistrates' Courts Act;

   "maim" means the destruction or permanent disabling of any external or internal organ, membrane or sense;

   "member of the Services" means any member of the Botswana Police Service or any tribal police force;

   "money" includes bank notes, currency notes, bank drafts, cheques and any other orders, warrants or requests for the payment of money;

   "navigation" means navigation by air or water; and "navigator" shall be construed accordingly;

   "night" or "night time" means the interval between half-past six o'clock in the evening and half-past six o'clock in the morning;

   "offence" is an act, attempt or omission punishable by law;

   "offensive weapon" means any article made or adapted for use for causing injury to the person or intended by any person having it with him for such use by him and includes a spear, axe, hatchet and club and knife with a blade exceeding four inches in length;

   "peace officer" has the meaning assigned thereto in the Criminal Procedure and Evidence Act;

   "periodical publication" includes every publication issued periodically or in parts or numbers at intervals whether regular or irregular;

   "person" and "owner" and other like terms when used with reference to property include corporations of all kinds and any other association of persons capable of owning property, and also when so used include the State and any local authority;

   "person employed in the public service" means any person holding any of the following offices or performing the duty thereof, whether as a deputy or otherwise, namely-

 

   (a)   any public office;

 

   (b)   any office to which a person is appointed or nominated by or under any written law;

 

   (c)   any civil office, the power of appointing to which or removing from which is vested in any person or persons holding an office of any kind included in paragraph (a) or (b) of this definition; or

 

   (d)   any office of arbitrator or umpire in any proceedings or matter submitted to arbitration by order or with the sanction of any court, or in pursuance of any written law;

and the said term further includes-

 

   (i)   any member of a commission of inquiry appointed under or in pursuance of any written law;

 

   (ii)   any person employed to execute any process of a court;

 

   (iii)   any member of the Services;

 

   (iv)   any person in the employment of the Government;

 

   (v)   any person acting as a minister of religion of whatsoever denomination in so far as he performs functions in respect of the notification of intended marriage or in respect of the solemnization of marriage, or in respect of the making or keeping of any register or certificate of marriage, birth, baptism, death or burial, but not in any other respect;

 

   (vi)   any person in the employment of a local authority;

 

   (vii)   any person in the employment of the government of a country other than Botswana, or of the United Nations or any agency thereof, who exercises functions of his office in Botswana;

   "petroleum" includes the liquids commonly known as rock oil, Rangoon oil, Burma oil, kerosene, paraffin oil, petrol, gasolene, benzoline, benzine, naphtha or any like inflammable liquid, whether a natural product or one that is made from petroleum, coal, schist, shale, or any other bituminous substances, or from any products thereof;

   "police force" includes the Services defined in section 2 of the Police Act and any tribal police force in Botswana, and "police officer" shall be construed accordingly;

   "possession"-

 

   (a)   "be in possession of" or "have in possession" includes not only having in one's own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to, or occupied by oneself or not) for the use or benefit of oneself or of any other person;

 

   (b)   if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them;

   "premises" includes any land, any building or any other place, and any vehicle, conveyance or vessel;

   "print" means to produce or reproduce words or pictures in visible form by printing, writing, typewriting, duplicating, cyclostyling, lithography, photography or any other means of representing the same in visible form;

   "prohibited publication" means any publication in respect of which an order has been made under section 47, and any part, copy or reproduction of any such publication;

   "property" includes any description of movable or immovable property, money, debts and legacies, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods, and also includes not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise;

   "public" refers not only to all persons within Botswana, but also to the persons inhabiting or using any particular place, or any number of such persons, and also to such indeterminate persons, as may happen to be affected by the conduct in respect to which such expression is used;

   "public officer" means any person in the service of, or holding office under the State whether such service be permanent or temporary, or paid or unpaid;

   "public way" includes any highway, market place, square, street, bridge or other way which is lawfully used by the public;

   "publication" includes all written and printed matter, and any gramophone or other record, perforated roll, recording tape or wire, cinematograph film or other contrivance by means of which any words or ideas may be mechanically produced, represented or conveyed, and everything, whether of a nature similar to the foregoing or not, containing any visible prepresentation or by its form, shape or other characteristics, or in any manner capable of producing, representing or conveying words or ideas, and every copy or reproduction or any publication;

   "publicly" when applied to acts done means either-

 

   (a)   that they are so done in any public place as to be seen by any person whether such person be or be not in a public place; or

 

   (b)   that they are so done in any place not being a public place as to be likely to be seen by any person in a public place;

   "seditious intention" has the meaning assigned to it in section 50;

   "seditious publication" means a publication containing any word, sign or visible presentation expressive of a seditious intention;

   "statute" has the same meaning as a "written law";

   "utter" includes using or dealing with and attempting to use or deal with and attempting to induce any person to use, deal with or act upon the thing in question;

   "valuable security" includes any document which is the property or in the lawful possession of any person and which is evidence of the ownership of any property or of the right to recover or receive any property;

   "vessel" means-

 

   (a)   a ship, boat or similar craft; or

 

   (b)   an aircraft;

   "wound" means any incision or puncture which divides or pierces any exterior membrane of the body, and any membrane is exterior for the purposes of this definition which can be touched without dividing or piercing any other membrane.

   (2) Except where the context otherwise requires, expressions used in this Code shall be presumed to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.

 

3.   Exclusion of common law

   Subject to the proviso to section 10(8) of the Constitution, no person shall be liable to punishment by the common law for any act.

Territorial Application of this Code (ss 4-5)

 

4.   Extent of jurisdiction of courts

   The jurisdiction of the courts of Botswana for the purposes of this Code extends to every place within Botswana.

 

5.   Offence committed partly within and partly beyond the jurisdiction

   When an act which, if wholly done within the jurisdiction of the court, would be an offence against this Code, is done partly within and partly beyond the jurisdiction, every person who within the jurisdiction does or makes any part of such act may be tried and punished under this Code in the same manner as if such act had been done wholly within the jurisdiction.

General Rules as to Criminal Responsibility (ss 6-20)

 

6.   Ignorance of law

   Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence.

 

7.   Bona fide claim of right

   A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.

 

8.   Intention and motive

   (1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

   (2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or in part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

   (3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

 

9.   Mistake of fact

   (1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

   (2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

 

10.   Presumption of sanity

   Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

 

11.   Insanity

   A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects mentioned above in reference to that act or omission.

 

12.   Intoxication

   (1) Except as provided in this section, intoxication shall not constitute a defence to any criminal charge.

   (2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and-

 

   (a)   the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

 

   (b)   the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.

   (3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused person shall be discharged, and in a case falling under paragraph (b) the provisions of section 11 of this Code and of Part XII of the Criminal Procedure and Evidence Act shall apply.

   (4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

   (5) For the purposes of this section, "intoxication" shall be deemed to include a state produced by narcotics or drugs.

 

13.   Immature age

   (1) A person under the age of eight years is not criminally responsible for any act or omission.

   (2) A person under the age of 14 years is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

   (3) A male person under the age of 12 years is presumed to be incapable of having carnal knowledge.

 

14.   Judicial officers

   Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in good faith in the exercise of his judicial functions, although the act done is in excess of his judicial authority or although he is bound to do the act omitted to be done.

 

15.   Compulsion

   A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury do not excuse the causing of, or the attempt to cause, death.

 

16.   Defence of person or property

   Subject to the express provisions of this Code or any other law for the time being in force, a person shall not be criminally responsible for the use of force in repelling an unlawful attack upon his person or property or the person or property of anyone whom it is his moral or legal duty to protect if the means he uses and the degree of force he employs in so doing are no more than is reasonably necessary in the circumstances.

 

17.   Use of force in effecting arrest

   Where any person is charged with a criminal offence arising out of the lawful arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary, or the degree of force used was reasonable, for the apprehension of such person, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person.

 

18.   Compulsion by husband

   A married woman is not free from criminal responsibility for doing or omitting to do an act merely because the act or omission takes place in the presence of her husband; but on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.

 

19.   Person not to be punished twice for same act or omission

   A person cannot be punished twice either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.

 

20.   Consent of Director of Public Prosecutions to prosecute

   Notwithstanding that in respect of any offence it is provided that no prosecution shall be instituted without the consent of the Director of Public Prosecutions a person may be arrested and charged for such offence and any such person may be remanded in custody or bail notwithstanding that the consent of the Director of Public Prosecutions to the institution of prosecution for the offence has not been obtained, but no further or other proceedings shall be taken until that consent has been obtained.

Parties to Offences (ss 21-24)

 

21.   Principal offenders

   (1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-

 

   (a)   every person who actually does the act or makes the omission which constitutes the offence;

 

   (b)   every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

 

   (c)   every person who aids or abets another person in committing the offence;

 

   (d)   any person who counsels or procures any other person to commit the offence,

and in the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.

   (2) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

   (3) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.

 

22.   Offences committed by joint offenders in prosecution of common purpose

   When two or more persons form a common intention to execute an unlawful purpose in conjunction with one another, and in the execution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

 

23.   Counselling another to commit an offence

   (1) When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.

   (2) In either case the person who gave counsel is deemed to have counselled the other person to commit the offence actually committed by him.

 

24.   Offences by corporations, societies, etc.

   Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and liable to be punished accordingly, unless it is proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or was about to be committed, or that he took all reasonable steps to prevent its commission.

Punishments (ss 25-33)

 

25.   Different kinds of punishments

   The following punishments may be inflicted by a court-

 

   (a)   death;

 

   (b)   imprisonment;

 

   (c)   corporal punishment;

 

   (d)   fine;

 

   (e)   forfeiture;

 

   (f)   finding security to keep the peace and be of good behaviour or to come up for judgment;

 

   (g)   any other punishment provided by this Code or by any other law.

 

26.   Sentence of death

   (1) When any person is sentenced to death, the sentence shall direct that he shall be hanged by the neck until he is dead.

   (2) Sentence of death shall not be pronounced on or recorded against any person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of 18 years, but in lieu thereof the court shall sentence such person to be detained during the President's pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the President may direct, and whilst so detained shall be deemed to be in legal custody.

   (3) Where a woman convicted of an offence punishable with death is found in accordance with the provisions of section 298 of the Criminal Procedure and Evidence Act to be pregnant, she shall be liable to imprisonment for life and not to sentence of death.

 

27.   Imprisonment

   (1) Sentence of imprisonment shall not be passed on any person under the age of 14 years.

   (2) A person convicted of an offence punishable with imprisonment for life or any other period may be sentenced for any shorter term.

   (3) A person convicted of an offence punishable with imprisonment may be sentenced to pay a fine in addition to or instead of imprisonment.

   (4) Notwithstanding any provision in any enactment which provides for the imposition of a statutory minimum period of imprisonment upon a person convicted of an offence, a court may, where there are exceptional extenuating circumstances which would render the imposition of the statutory minimum period of imprisonment totally inappropriate, impose a lesser and appropriate penalty.

 

28.   Corporal punishment

   (1) Subject to the provisions of subsection (4), no person shall be sentenced to undergo corporal punishment for any offence unless such punishment is specifically authorized by this Code or any other law.

   (2) A sentence of corporal punishment shall be inflicted once only. The sentence shall specify the number of strokes, which shall not exceed 12, nor, in the case of a person under the age of 18 years, six.

   (3) No sentence of corporal punishment shall be passed upon any of the following persons-

 

   (a)   females;

 

   (b)   males sentenced to death;

 

   (c)   males whom the court considers to be more than 40 years of age.

   (4) Where any male person under the age of 40 is convicted of any offence punishable with imprisonment, other than an offence listed in the Second Schedule to the Criminal Procedure and Evidence Act, a court may, in its discretion but subject to the provisions of section 27(1), order him to undergo corporal punishment in addition to or in substitution for such imprisonment.

   (5) Where it is provided that any person shall be liable to undergo corporal punishment such punishment shall, if awarded, be inflicted in accordance with the provisions of section 305 of the Criminal Procedure and Evidence Act.

 

29.   Fines

   (1) Where a fine is imposed under any law, then in the absence of express provisions relating to such fine in such law the following provisions shall apply-

 

   (a)   where no sum is expressed to which the fine may extend, the amount of the fine which may be imposed is unlimited, but shall not be excessive;

 

   (b)   in the case of an offence punishable with a fine or a term of imprisonment, the imposition of a fine or imprisonment shall be a matter for the discretion of the court;

 

   (c)   in the case of an offence punishable with imprisonment as well as a fine in which the offender is sentenced to a fine with or without imprisonment, and in every case of an offence punishable with a fine only in which the offender is sentenced to a fine, the court passing sentence may, in its discretion-

 

      (i)   direct by its sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence; and also

 

      (ii)   issue a warrant for the levy of the amount in accordance with the provisions of section 303 of the Criminal Procedure and Evidence Act.

   (2) In the absence of express provisions in any law relating thereto, the term of imprisonment or corporal punishment ordered by a court in respect of the non-payment of any sum-

 

   (a)   imposed as a fine;

 

   (b)   ordered to be forfeited to the State;

 

   (c)   ordered to be paid under the provisions of any other law,

shall be such as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale-

   Amount of fine

Maximum

   Not exceeding P200 14 days or six strokes
   P200-P1,000 One month or nine strokes
   P1,001-P10,000 Six months or 12 strokes
   Exceeding P10,000 Two years imprisonment.

 

30.   Forfeiture

   The provisions of this Code with respect to the forfeiture of property to the State shall be in addition to and not in derogation from the provisions of sections 58 and 319 of the Criminal Procedure and Evidence Act.

 

31.   Security for keeping the peace or to come up for judgment

   (1) A person convicted of an offence not punishable with death may, instead of, or in addition to, any punishment to which he is liable, be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks fit, on condition that he shall keep the peace and be of good behaviour for a time to be fixed by the court, and may be ordered to be imprisoned until such recognizance, with sureties, if so directed, is entered into; but so that the imprisonment for not entering into the recognizance shall not extend for longer than one year, and shall not, together with the fixed term of imprisonment, if any, extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

   (2) When a person is convicted of any offence not punishable with death the court may, instead of passing sentence, discharge the offender upon his entering into his own recognizance, with or without sureties, in such sum as the court may think fit, on condition that he shall appear to receive judgment at some future sitting of the court or when called upon.

 

32.   Discharge of offender without punishment

   (1) Where, in any trial before a magistrate's court, the court thinks that the charge is proved but is of the opinion that, having regard to the character, antecedents, age, health or mental condition of the accused, or to the trivial nature of the offence, or to the extenuating circumstances in which the offence was committed, it is inexpedient to inflict any punishment, the court may, without proceeding to conviction, make an order dismissing the charge.

   (2) An order made under this section shall, for the purpose of revesting or restoring stolen property, and enabling the court to make any order under the provisions of sections 318 and 319 of the Criminal Procedure and Evidence Act have the like effect as a conviction.

 

33.   General punishment for offences

   When in this Code no punishment is specially provided for any offence, it shall be punishable with imprisonment for a term not exceeding two years or with a fine, or with both.

PART II
Crimes
(ss 34-399)

DIVISION I
OFFENCES AGAINST PUBLIC ORDER (ss 34-98)

Treason and other Offences against the State's Authority (ss 34-59)

 

34.   Treason

   (1) A person is guilty of treason and shall, subject to section 40, be sentenced to death who-

 

   (a)   prepares or endeavours to overthrow by unlawful means the Government as established by law;

 

   (b)   prepares or endeavours to procure by force any alteration of the law or the policies of the Government;

 

   (c)   prepares or endeavours to carry out by force any enterprise which usurps the executive power of the State in any matter of both a public and a general nature;

 

   (d)   in time of war and with intent to give assistance to the enemy, does any act which is likely to give such assistance; or

 

   (e)   gives assistance to any person who threatens the security or sovereignty of Botswana.

   (2) In paragraphs (b) and (c) of subsection (1) "by force" means either-

 

   (a)   by force used in such a manner as, whether by reason of the number of persons involved or the means used or both, to imperil or be likely to imperil the safety of the State or to cause or be likely to cause death or grievous harm or serious damage to property; or

 

   (b)   by a show of force to arouse reasonable apprehension that force will be used in such a manner as is described in paragraph (a).

   (3) A person who is not a citizen of Botswana shall not be punishable under this section for anything done outside Botswana, but a citizen of Botswana may be tried and punished for an offence under this section as if it had been committed within the jurisdiction of the court.

 

35.   Instigating invasion

   Any person who instigates any foreigner to invade Botswana with an armed force is guilty of treason and shall, subject to section 40, be sentenced to death.

 

36.   Concealment of treason

   Any person who-

 

   (a)   becomes an accessory after the fact to treason; or

 

   (b)   knowing that any person intends to commit treason, does not give information thereof with all reasonable despatch to the President or a police officer, or use other reasonable endeavours to prevent the commission of the offence,

is guilty of the offence termed misprision of treason and is liable to imprisonment for not less than 15 years nor more than 25 years.

 

37.   Treasonable offences

   Any person who forms an intention to effect any of the following purposes, that is to say-

 

   (a)   prepares or endeavours to procure by unlawful means any alteration of the law or the policies of the Government;

 

   (b)   prepares or endeavours to carry out by unlawful means any enterprise which usurps the executive powers of the State in any matter of both a public and general nature;

 

   (c)   threatens the security of Botswana; or

 

   (d)   prepares or endeavours to give assistance to any person who threatens the security of Botswana,

and manifests such intention by an overt act, or by publishing any printing or writing, is guilty of an offence and is liable to imprisonment for not less than 15 years nor more than 25 years.

 

38.   Promoting war or warlike undertaking

   Any person who, without lawful authority, carries on, or makes preparation for carrying on, or aids in or advises the carrying on of, or preparation for, any war or warlike undertaking with, for, by, or against any person or group of persons within Botswana, is guilty of an offence and is liable to imprisonment for not less than 15 years nor more than 25 years.

 

39.   Certain persons deemed to threaten security or sovereignty of Botswana

   (1) For the purposes of sections 34 and 37 a person shall be deemed to threaten the security or sovereignty of Botswana if-

 

   (a)   without lawful authority he is found in possession of or wearing the uniform of the armed forces of any foreign country;

 

   (b)   without lawful authority, he is found in possession of any arms or ammunition prohibited under section 23 of the Arms and Ammunition Act, or of any explosive or bomb;

 

   (c)   without lawful authority, he is found in company with any person specified in paragraph (a) or (b).

   (2) A person shall not be prosecuted for an offence under this section without the written consent of the Director of Public Prosecutions.

 

40.   Extenuating circumstances in treason and similar offences

   Where a court in convicting a person of an offence contrary to section 34 or 35 is of the opinion that there are extenuating circumstances, the court may, instead of imposing the death sentence, impose a sentence of imprisonment of not less than 15 years nor more than 25 years.

 

41.   Limitations as to trial for treason, etc.

   (1) A person shall not be tried for treason, or for any of the offences defined in sections 36, 37 and 38, unless the prosecution is commenced within two years after the offence is committed.

   (2) No person charged with treason, or with any of such offences, may be convicted, except on his own plea of guilty, or on the evidence in open court of two witnesses at the least to one overt act of the kind of treason or offence alleged, or the evidence of one witness to one overt act and one other witness to another overt act of the same kind of treason or offence.

 

42.   Inciting to mutiny

   Any person who advisedly attempts to effect any of the following purposes, that is to say-

 

   (a)   to seduce any member of the Services from his duty and allegiance to the President;

 

   (b)   to incite any such persons to commit an act of mutiny or any traitorous or mutinous act; or

 

   (c)   to incite any such persons to make or endeavour to make a mutinous assembly,

is guilty of an offence and is liable to imprisonment for life.

 

43.   Aiding members of the Forces in acts of mutiny

   Any person who-

 

   (a)   aids, abets, or is accessory to, any act of mutiny by; or

 

   (b)   incites to sedition or to disobedience to any lawful order given by a superior officer,

any member of the Services is guilty of an offence.

 

44.   Inducing desertion

   Any person who, by any means whatever, directly or indirectly-

 

   (a)   procures or persuades or attempts to procure or persuade to desert;

 

   (b)   aids or abets, or is accessory to, the desertion of; or

 

   (c)   having reason to believe he is a deserter, harbours or aids in concealing,

any member of the Services, is guilty of an offence and is liable to imprisonment for a term not exceeding six months.

 

45.   Aiding prisoners of war to escape

   Any person who-

 

   (a)   knowingly and advisedly aids an alien enemy of Botswana, being a prisoner of war in Botswana whether such prisoner is confined in a prison or elsewhere or is suffered to be at large on his parole, to escape from his prison or place of confinement, or, if he is at large on his parole, to escape from Botswana, is guilty of an offence and is liable to imprisonment for life;

 

   (b)   negligently and unlawfully permits the escape of any such person as is mentioned in paragraph (a), is guilty of an offence.

 

46.   Definition of overt act

   In the case of any of the offences defined in this Division, when the manifestation by an overt act of an intention to effect any purpose is an element of the offence, every act of conspiring with any person to effect that purpose and every act done in furtherance of the purpose by any of the persons conspiring, is deemed to be an overt act manifesting the intention.

 

47.   Prohibited publications

   (1) If the President is of the opinion that there is in any publication or series of publications published within or without Botswana by any person or association of persons matter which is contrary to the public interest, he may, in his absolute discretion, by order published in the Gazette and in such local newspapers as he may consider necessary, declare that that particular publication or series of publications, or all publications of any class of publication specified in the order published by that person or association of persons, shall be a prohibited publication or prohibited publications, as the case may be.

   (2) If an order made under the provisions of subsection (1) specifies by name a publication which is a periodical publication, such order shall, unless a contrary intention be expressed therein, have effect-

 

   (a)   with respect to all subsequent issues of such publication; and

 

   (b)   not only with respect to any publication under that name, but also with respect to any publication published under any other name if the publishing thereof is in any respect a continuation of, or in substitution for, the publishing of the publication named in the order.

   (3) If an order made under the provisions of subsection (1) declares that all publications of any class of publication published by a specified person shall be prohibited publications, such order shall, unless a contrary intention be expressed therein, have effect not only with respect to all publications of that class published by that person or association of persons before the date of the order but also with respect to all publications of that class so published on or after such date.

   (4) An order made under the provisions of subsection (1) shall, unless a contrary intention is expressed therein, apply to any translation into any language whatsoever of the publication specified in the order.

   (5) Where an order has been made under subsection (1) declaring all publications of any class of publication published by a specified person to be prohibited publications or specifying by name a publication which is a periodical publication, any person who wishes to import into Botswana any particular publication affected by such order may apply to the Minister for a permit in that behalf and, unless the Minister is satisfied that the publication contains matter which is contrary to the public interest, he shall grant such a permit and the order shall thereupon cease to have effect with respect to that publication.

   (6) Any person whose application to the Minister under subsection (5) has been refused may appeal in writing against such refusal to the President whose decision thereon shall be final.

   (7) For the purposes of this section and of any prosecution in respect of a prohibited publication, any publication which purports to be printed or published outside Botswana by any person shall, unless the contrary is proved, be deemed to be published outside Botswana by such person.

   (8) In this section, "public interest" means the interests of defence, public safety, public order, public morality or public health.

 

48.   Penalty for prohibited publications

   (1) Any person who, otherwise than in his capacity and in the course of his duties as a public officer, prints, makes, imports, publishes, sells, supplies, offers for sale or supply, distributes, reproduces or has in his possession or under his control any prohibited publication is guilty of an offence and is liable to imprisonment for a term not exceeding three years:

   Provided that no person who-

 

   (i)   forthwith on the importation of a publication being prohibited under section 47, delivers to the nearest administrative officer or to the police officer in charge of the nearest police station all copies of such publication in his possession or under his control, or

 

   (ii)   by reason of its being sent or delivered to him without his knowledge or privity or in response to a request made by him before the importation thereof was prohibited, comes into possession or control of a prohibited publication, and who, forthwith on the nature of its contents becoming known to him, delivers to the nearest administrative officer or the police officer in charge of the nearest police station all copies of such publication so coming into his possession or control,

shall be convicted of an offence under this section in respect of the copies so delivered by him as aforesaid.

   (2) Where in any prosecution under this section it is proved that a person printed, made, imported, published, sold, supplied, offered for sale or supply, distributed, reproduced or had in his possession or under his control a prohibited publication, it shall be presumed that he knew the nature and contents of the publication, unless he proves to the satisfaction of the court-

 

   (a)   that he was not aware of the nature or contents of the publication in respect of which he is charged; and

 

   (b)   that he printed, made, imported, published, sold, supplied, offered for sale or supply, distributed, reproduced or had in his possession or under his control such publication in such circumstances that at no time did he have reasonable cause to suspect that it was a prohibited publication.

 

49.   Seizure and disposal of prohibited publications

   (1) Any police officer or administrative officer may seize and detain any prohibited publication which he finds in circumstances which raise a reasonable presumption that an offence under this Code has been, is being or is intended to be committed in relation thereto, or which he finds abandoned or without an apparent owner or possessor or in the possession or custody of any unauthorized person.

   (2) Any of the following officers, that is to say-

 

   (a)   any police officer not below the rank of Sub-Inspector;

 

   (b)   any other person employed in the public service authorized in that behalf by the Minister,

may detain, open and examine any package or article which he suspects to contain any prohibited publication, and during such examination may detain any person importing, distributing or posting such package or article or in whose possession such package or article is found.

   (3) If any prohibited publication is found in such package or article, the whole package or article may be impounded and retained by the officer, and the person importing, distributing or posting it, or in whose possession it is found may be arrested by the officer and delivered to police custody to be dealt with according to law.

   (4) Any prohibited publication which is seized or detained as aforesaid, or which in any other manner comes into the possession or custody of any court or any public officer, shall be forfeited to the State and may be destroyed or otherwise disposed of, as may be directed by such court or by the Commissioner of Police, as the case may be.

 

50.   Seditious intention

   (1) A seditious intention is an intention-

 

      (a)   to bring into hatred or contempt or to excite disaffection against the person of the President or the Government of Botswana as established by law;

 

      (b)   to excite the inhabitants of Botswana to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Botswana as established by law;

 

      (c)   to bring into hatred or contempt or to excite disaffection against the administration of justice in Botswana;

 

      (d)   to raise discontent or disaffection amongst the inhabitants of Botswana; or

 

      (e)   to promote feelings of ill-will and hostility between different classes of the population of Botswana,

but an act, speech or publication is not seditious by reason only that it intends-

 

   (i)   to show the President has been misled or mistaken in any of his measures;

 

   (ii)   to point out errors or defects in the Government or the Constitution of Botswana as established by law or in legislation or in the administration of justice with a view to the remedying of such errors or defects;

 

   (iii)   to persuade the inhabitants of Botswana to attempt to procure by lawful means the alteration of any matter in Botswana as established by law; or

 

   (iv)   to point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill-will and enmity between different classes of the population of Botswana.

   (2) In determining whether the intention with which any act was done, any words were spoken, or any document was published, was not seditious, every person shall be deemed to intend the consequences which would n

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