ARRANGEMENT OF SECTIONS
1. Short title
Establishment of Prisons
3. Declaration of prisons
4. Declaration of temporary prisons
Constitution and Administration of Prison Service
5. Prison Service
6. Application of G.O. to prison officers
7. Commissioner of Prisons and Rehabilitation
8. Method of filling vacancies
9. Appointing authorities
10. Principle for filling vacancies
11. Appointment procedure
12. Limited engagement
13. Probationary and trial periods
14. Acting assignment
15. Scheme of service
17. Modes of leaving the Service
18. Power of Minister
19. Compulsory retirement
20. Voluntary retirement
21. Retirement for medical reasons
22. Abolition of post
23. Discharge of non-pensionable staff
24. Officers in charge of prisons
25. Retention of prison officer in Service in certain circumstances
Powers and Duties of Prison Officers
26. Powers and duties of prison officers
27. Standing orders
28. Duties of officers in charge
29. Prison officers always liable for duty
30. Powers of prison officers in respect of escaped prisoners, etc.
31. Search of prison officers' persons or quarters
32. Arrest and remand in custody of prison officers
33. Use of force by prison officer
34. Prison officers not to engage in employment outside Service
35. Prison officers not to be members of trade unions, etc.
36. Immunity for acts done under authority of warrants
37. Appointment of police officers to perform duties of prison officers
38. Orders for escort duties
Offences by Prison Officers
39. Mutiny and related offences
41. Inciting prison officers to desert
42. Resignation without permission
43. Prohibited activities by prison officers
44. Assault on officer senior in Service
45. Restrictions as to entry by male prison officers into female cells
46. Offences against discipline by prison officers
47. Disciplinary proceedings against junior and subordinate officers
48. Disciplinary proceedings against senior officers
49. Defence of prison officers
50. Powers at disciplinary enquiries
51. Fines and stoppage of salaries
53. Prisons Rewards and Fines Fund
55. Procedure on appeal
56. Medical officers
57. Powers of medical officers
58. Powers of Minister
59. Mentally disordered prisoners
60. Visiting and medical examination of prisoners under sentence of death, etc.
61. Medical examination of prisoners
62. Death of prisoner
63. Other duties of medical officers
64. Inquest on deceased prisoners
Admission, Control, Discharge and Temporary Release
of Prisoners, Compensation for Prisoners' Death or Incapacity and
65. Prisoners to be subject to Act at all times
66. Admission of prisoners to custody
67. Remand prisoners
68. Recording of particulars of prisoners
69. Search of prisoners
70. Prisoner's property
71. Statements to and investigations by police officers
72. Maintenance of certain prisoners from private sources
73. Responsibility for female prisoners
74. Segregation of male and female prisoners
75. Location of prisoners
76. Removal of sick prisoners to hospital
77. Mechanical restraints
78. Discharge of prisoners
79. Temporary release of prisoners
80. Compensation for prisoner's death or incapacity
81. Report to Commissioner of personal injuries to prisoners
82. Record of accidents to be kept
84. Establishment and constitution of parole boards
85. Eligibility of prisoners for release on parole
86. Functions of parole boards
87. Release on parole
88. Breaches of parole
89. Period of parole to count as part of term of imprisonment
Training and Rehabilitation of Prisoners, Remission, Prison
Advisory Committee and Long-Term Prisoners
90. Training and rehabilitation of prisoners
Employment of Prisoners
92. Employment of prisoners
93. Non-associated labour
94. Employment of certain specified prisoners
95. Employment of prisoners outside prison other than by public authorities
96. Prisoners' earnings
97. Courts may order extra-mural labour for offenders
98. Commissioner and official visitors may order extra-mural labour for offenders
99. Officers in charge to have ultimate control of offenders doing extra-mural labour
100. Conditions of extra-mural labour
101. Procedure where offender doing extra-mural labour is found to be unfit
102. Procedure where offender doing extra-mural labour under order of court is recalcitrant
103. Procedure where offender doing extra-mural labour under order of Commissioner or official visitor is recalcitrant
104. Public authorities to maintain records of offenders doing extramural labour
Offences by Prisoners
105. Major prison offences
106. Minor prison offences
107. Charging of prisoners
108. Charged prisoners to be allowed to make own defence, etc.
109. Power to try major prison offences
110. Power to try minor prison offences
111. Solitary confinement and reduced diet
112. Offences under this Act in relation to other laws
113. Register of punishments
114. Laws to be applied to corporal punishment
115. Procedure where corporal punishment awarded by Commissioner or other senior officer for major prison offence
116. Confinement of condemned prisoners
117. Persons permitted access to condemned prisoners
118. Authority for executions
119. Information of executions and prisoners' instructions in connection therewith
120. Procedure at executions
Prohibited Articles and Areas
122. Proscription of prohibited articles and powers of examination and search in connection therewith
123. Seizure and disposal of prohibited articles
124. Penalty for dealing with prohibited articles
125. Unlawful communication with prisoners
126. Prison officers' powers of arrest
127. Persons loitering near prisons or prisoners to depart when required to do so
128. Prohibition of photographing or sketching of prisoners and prisons
129. Removal of certain offenders
130. Notices to be displayed in respect of certain offences
Official Visitors, Visiting Committees and Ministers of
131. Official visitors to prisons
132. Powers of official visitors
133. Record of visits by official visitors
134. Appointment of visiting committees
135. Powers and duties of visiting committees
136. Records of visits by visiting committees or members thereof
137. Ministers of religion
138. Religious services
139. Prisons Council
140. Functions of Prisons Council
141. Procedure of Prisons Council
143. Convicted prisoners unlawfully at large
144. Sheltering prisoners
145. Reward for apprehension of escaped prisoners
146. Penalties for offences under this Act
148. Non-application of Cap. 26:01
Act 28, 1979,
Act 6, 1980,
S.I. 26, 1980,
S.I. 54, 1981,
Act 14, 1985,
Act 26, 1985,
Act 15, 1997,
Act 12, 2000,
Act 18, 2006.
An Act to repeal and replace the Prisons Act to provide for the modernization of the Prison Service and generally for the bringing up to date and rationalization of the law governing prisons and prisoners and for matters connected therewith.
[Date of Commencement: 1st March, 1980]
Preliminary (ss 1-2)
This Act may be cited as the Prisons Act.
In this Act, unless the context otherwise requires-
"appellant prisoner" means a convicted prisoner who is detained in a prison as a result of a conviction which is the subject matter of an appeal which has been entered or lodged but the decision in regard to which has not been given;
"Commissioner" means the Commissioner of Prisons and Rehabilitation appointed by the Minister in accordance with section 9;
"convicted prisoner" means a prisoner under sentence of a court or who has been convicted by a court and is awaiting sentence or upon whom sentence has, for any reason, been respited;
"earnings" means earnings earned in a prescribed earnings scheme instituted under section 96;
"judge" means a judge of the High Court of Botswana and includes the Chief Justice;
"junior officer" means a prison officer of one of the ranks set out in section 5 in respect of junior officers;
"major prison offence" means an offence declared to be a major prison offence by section 105;
"mechanical restraint" means restraint by the use of handcuffs, leg irons, strait jacket, body belt or any other form of restraint approved by the Minister in writing for the purposes of this Act;
"medical officer" means a person appointed to be the medical officer responsible for a prison in accordance with section 56;
"minister of religion" means an accredited representative of any religious body;
"minor prison offence" means an offence declared to be a minor prison offence by section 106;
"mutiny" means a combination between prison officers or a combination between prisoners or a combination between prison officers and prisoners to overthrow or resist or attempt to overthrow or resist lawful authority in the Prison Service or any part thereof;
"offence against discipline" means an offence declared to be an offence against discipline by section 46;
"officer in charge" means a prison officer appointed to be the officer in charge of a prison under section 24;
"official visitor" means a person who is an official visitor by virtue of section 131;
"peace officer" has the same meaning as in the Criminal Procedure and Evidence Act;
"prison" means any building, enclosure or place or any part thereof declared to be a prison or temporary prison under section 3 or 4 and includes an open prison;
"prisoner" means any person, whether convicted or not, under detention in a prison;
"prison offence" means a major or minor prison offence;
"prison officer" means any senior, junior or subordinate officer, whether permanent or temporary;
"prohibited article" means any article which is not issued to a prisoner by authority of the officer in charge with the approval of the Commissioner or in accordance with this Act;
"public authority" means the Government or an agency thereof, a local authority or statutory corporation;
"reduced diet" means a reduced diet awarded as a punishment under section 109 or 110;
"release on parole" means conditional release from prison, before he has completed his term of imprisonment, of a prisoner under section 87;
"remission" means remission granted or restored to a prisoner under section 91;
"senior officer" means a prison officer of one of the ranks set out in section 5 in respect of senior officers;
"Service" means the Prison Service referred to in section 5;
"subordinate officer" means a prison officer of one of the ranks set out in section 5 in respect of subordinate officers;
"temporary officer" means any person recruited temporarily to serve as a prison officer;
"unconvicted prisoner" means a person, not being a convicted prisoner, duly committed to prison custody under a writ, warrant or order of any court or an order of detention issued by any person authorized in that behalf by any law;
"visiting committee" means a visiting committee prescribed by section 134;
"weapon" means a baton, riot stick, shield, tear gas grenade or firearm or any other article approved by the Minister in writing for use as a weapon by prison officers.
Establishment of Prisons (ss 3-4)
The Minister may, by order published in the Gazette, declare any building, enclosure or place or any part thereof to be a prison.
The Commissioner may, by order published in the Gazette, with the approval of the Minister, declare any building, enclosure or place or any part thereof to be a temporary prison for the detention of such number of prisoners as the Commissioner may, with the approval of the Minister, determine.
Constitution and Administration of Prison Service (ss 5-25)
(1) There shall be a Prison Service for Botswana, the members of which shall consist of the following rank of officers, namely, senior officers, junior officers and subordinate officers.
(2) The rank of officers referred to in subsection (1) shall comprise-
(a) in the case of senior officers-
(i) the Commissioner, as head of the Prison Service;
(ii) the Deputy Commissioner;
(iii) Assistant Commissioner;
(iv) Senior Superintendent;
(v) Superintendent; and
(vi) Assistant Superintendent;
(b) in the case of junior officers-
(i) Cadet Assistant Superintendent;
(ii) Principal Officer; and
(iii) Assistant Principal Officer; and
(c) in the case of subordinate officers-
(i) Cadet Assistant Principal Officer;
(ii) Sergeant; and
(3) The Minister may by Order create additional ranks for the Prison Service.
Every prison officer shall be subject to the Botswana Public Service General Orders in so far as such Orders are not inconsistent with the provisions of this Act.
(1) The Commissioner shall be responsible to the Minister through the Permanent Secretary for securing the general efficiency of the Prison Service.
(2) Any functions conferred on the Commissioner by this Act may, subject to the directions of the Commissioner, be exercised by the Deputy Commissioner or Assistant Commissioner.
A vacancy in a Prison Service post may be filled-
(a) by promotion, that is by appointing a prison officer who is to be moved from another grade with an immediate increase in his salary;
(b) by transfer within the Service, that is appointing a prison officer who is to be moved from another grade with no alteration in his salary;
(c) on reduction in rank, that is by appointing a prison officer who is to be moved from another grade with an immediate reduction in his salary;
(d) by recruitment, that is by appointing a person who is not a prison officer or who would cease to be a prison officer if the appointment were not made.
(1) The authority empowered to fill vacancies in a Prison Service post shall be known as the appointing authority for that post.
(2) The Minister shall be the appointing authority for the post of Commissioner.
(3) The Permanent Secretary shall be the appointing authority for prison officers of the rank of Senior Superintendent to Deputy Commissioner:
Provided that before the Permanent Secretary fills any vacancy he shall consult the Commissioner.
(4) The Commissioner shall be the appointing authority for the posts of all junior officers, subordinate officers and senior officers up to the rank of Superintendent.
(1) Where practicable, a vacancy in a Prison Service post shall be filled either by promotion or transfer within the Service.
(2) Promotions shall be made according to merit.
(3) A person who to the knowledge of the appointing authority has attained the prescribed voluntary retiring age shall not be appointed by recruitment to the pensionable post of a prison officer otherwise than on a limited engagement:
Provided that this subsection shall not apply if that person has such accrued entitlement to retirement benefits as may be prescribed.
(1) Appointment to all Prison Service posts shall be made by a letter of appointment addressed to the person appointed and signed by or on behalf of the appointing authority.
(2) A person not already holding a pensionable post shall not be appointed to a pensionable post unless he has been medically examined and found to be fit to be appointed to pensionable service.
(1) Where a vacancy in a Prison Service post is filled by recruitment the person recruited may, if the appointing authority thinks fit, be appointed on a limited engagement.
(2) The letter of appointment of a person appointed to a post on a limited engagement-
(a) shall specify the period of the engagement, that is, the period for which it is contemplated that he will remain in the post;
(b) may provide that the provisions of this Act and of any statutory instrument made thereunder shall apply subject to such modifications as may be set out in the letter of appointment.
(3) Subject to such conditions as may be prescribed, the period of a limited engagement may be extended by the consent of the person serving under the engagement and the appointing authority.
(1) An appointment of a prison officer to a pensionable post shall be subject to satisfactory service in that post for a probationary period of two years.
(2) An appointment of a prison officer by promotion to a pensionable post shall be subject to satisfactory service in that post for a trial period of six months.
(3) Where a pensionable post is held by a prison officer on probation or trial and it appears to the appointing authority at the end of the probationary or trial period, or at any time during that period, that the said officer is unlikely to fulfil the requirements of the post, the appointing authority may provide for him to be transferred or reduced in rank, or if he holds the post on probation, may order that he shall cease to be a prison officer.
(4) The appointing authority for a post held by a prison officer on probation or on trial may if he thinks fit reduce or extend the probationary or trial period:
Provided that no probationary period shall be extended for more than 12 months.
(5) A decision of an appointing authority to terminate, extend or not to confirm a probationary or trial appointment shall be final and no appeal shall lie therefrom to any person or body.
(1) Where a Prison Service post is vacant or the holder of the post is absent from duty for any reason the appointing authority for that post may assign a prison officer to carry out the duties of the post.
(2) An assignment under this section shall cease to have effect-
(a) on the filling of the vacancy or the return to duty of the holder of the post, as the case may be; or
(b) if some other person is assigned to carry out the duties of the post; or
(c) if the assignment is revoked by the appointing authority.
(1) The Commissioner shall prepare a scheme of service giving details of the composition of the branches within the Service, the duties assigned thereto, modes of entry and qualifications required, prospects of promotion, training facilities and other matters relating to service as a prison officer.
(2) No scheme of service made under subsection (1) shall be promulgated without the consent of the Permanent Secretary.
(1) The Commissioner shall appoint a senior officer who shall be responsible for the training of prison officers.
(2) There shall be a branch of the Prison Service with the function of supervising and co-ordinating, under the general direction of the Commissioner, arrangements for the training of prison officers.
(3) No prison officer shall be selected for training with a view to enabling him to qualify for appointment to a particular post unless the appointing authority for that post has given his approval.
(4) Subject to the preceding provisions of this section, it is the duty of the officer appointed under this section to secure, so far as is practicable, that facilities exist, and are used, to enable prison officers to undergo such training as may be necessary for the performance of the duties of their posts and for enabling them to qualify for advancement within the Service.
The modes by which a prison officer may leave the Service are as follows-
(a) on dismissal or removal under section 18 or in consequence of disciplinary proceedings;
(b) on compulsory retirement;
(c) on voluntary retirement;
(d) on retirement for medical reasons;
(e) on resignation in accordance with such conditions as may be prescribed;
(f) on the expiry or other termination of a limited engagement;
(g) on the abolition of his post;
(h) in the case of a prison officer on probation, on making of an order under section 13(3);
(i) in the case of a prison officer holding a non-pensionable post, on being discharged by his appointing authority.
(1) The Minister may dismiss or remove any prison officer if he is satisfied that it is in the public interest to do so.
(2) A person dismissed under this section shall forfeit all retirement benefits, and a person removed under this section shall incur such reduction (if any) in his retirement benefits as the Minister may direct.
A prison officer holding a pensionable post otherwise than on a limited engagement shall retire from the Service on reaching the prescribed compulsory retiring age:
Provided that this section shall not prevent the appointment of any person on a limited engagement.
A prison officer holding a pensionable post otherwise than on a limited engagement may retire from the Service at any time after he has reached the prescribed voluntary retiring age, or, with the consent of the appointing authority, at any earlier time.
A prison officer shall retire from the Service if, in accordance with the prescribed procedure, it is found that he is incapable by reason of infirmity of mind or body of discharging the duties of his post and that the infirmity is likely to be permanent:
Provided that this section shall not prevent a prison officer found so incapable from being moved to a grade in which his infirmity will not prevent the discharge of his duties.
(1) Where a post in a grade is abolished by the repeal or amendment of the enactment by which it was created, the appointing authority shall, if two or more persons hold posts in that grade, determine which of those persons is to be treated as the person whose post is abolished.
(2) Unless the person in respect of whom a determination is to be made under subsection (1) is to be promoted, he shall be afforded an opportunity to make representations to the appointing authority, who shall consider any such representations before making the determination.
(1) The appointing authority may discharge a person holding a non-pensionable post-
(a) on the ground that he is physically incapable of performing the duties of the post; or
(b) where he has not held a Prison Service post during the whole of the preceding 12 months, on the ground that he is generally unsuitable for the post; or
(c) on the ground that the post is no longer required to be occupied.
(2) Where a person is discharged under this section the appointing authority shall furnish him with a statement in writing of the ground on which he is discharged.
The Commissioner shall, in respect of every prison, appoint a prison officer to be the officer in charge of that prison and control of that prison shall be vested in the officer so appointed.
Where the period of engagement in the Service of any prison officer is about to expire during any period when Botswana is at war or when a declaration under section 17 of the Constitution that a state of public emergency exists is in force or at a time when, in the Minister's opinion, war or such a declaration is imminent, the Minister may, in writing, direct that the prison officer shall remain in the Service for such period as the Minister shall specify.
Powers and Duties of Prison Officers (ss 26-38)
(1) Every prison officer shall exercise such powers and perform such duties as may be assigned to him in accordance with this Act or any other law and shall obey all lawful orders in respect of the performance of his duties which he may from time to time receive from a prison officer senior to him in the Service.
(2) A prison officer shall immediately report to his superior officer any contravention of this Act which may come to his notice.
(1) The Commissioner may, with the approval of the Minister, make standing orders to be observed by all prison officers.
(2) In this Act, unless the context otherwise requires, every reference to the Act shall be deemed to include a reference to any standing orders made under this section.
(1) The officer in charge of a prison shall supervise and control all matters in connection with the prison in accordance with this Act and shall be responsible to the Commissioner for the conduct and treatment of the prison officers and prisoners under his control and for the due observance by the prison officers and prisoners of this Act and of all instructions issued thereunder.
(2) The officer in charge of a prison shall keep or cause to be kept such records as the Commissioner may require.
(3) The officer in charge of a prison shall forthwith report to the Commissioner any unusual incident or circumstances involving the good order and discipline of the prison or damage or injury to any building, equipment, prison officer, prisoner or other person under his charge.
(4) The officer in charge of a prison shall visit every part of the prison daily during working hours and at least once every week at night.
Every prison officer shall be liable for duty at all times and may at any time be detailed for duty in any part of Botswana.
For the purpose of apprehending any prisoner who may have escaped or is attempting to escape from a prison or while being conveyed to or from a prison or for the purpose of preventing the rescue of or an attack on a prisoner, every prison officer shall have all the powers, authority, protection and privileges of a peace officer.
The officer in charge of a prison may order the person of, or the quarters occupied by, a prison officer to be searched at any time by a prison officer senior to that officer in the Service.
(1) Where he is satisfied that such arrest is necessary in the interests of justice or for the maintenance of good order and discipline, the officer in charge of a prison may arrest without warrant or order the arrest without warrant of any junior or subordinate officer junior to him in the Service whom he suspects on reasonable grounds of having committed an offence under this Act (including an offence against discipline) or any other law.
(2) Where a prison officer is arrested under this section, the officer in charge shall forthwith determine whether-
(a) there is to be an enquiry into an alleged offence against discipline under section 47; or
(b) the arrested officer is to be delivered over to the police authorities to be dealt with according to law.
(3) Where a prison officer is arrested under this section and the officer in charge determines that there is to be an enquiry under section 47 or it is not reasonably practicable for him immediately to deliver the arrested officer, or cause him to be delivered, over to the police authorities and it would not, in the opinion of the officer in charge, be in the interests of justice or of the maintenance of good order and discipline to release the arrested officer from custody, he may order the remand or the further remand of the arrested officer in custody for such period or periods as do not exceed in the aggregate 24 hours.
(4) Where the officer in charge is of the opinion, on the grounds prescribed by subsection (3), that the arrested officer should be further remanded in custody beyond the period of 24 hours therein prescribed, he shall forthwith report the circumstances to the Commissioner who may, if he is of the opinion that it would not be in the interests of justice or of the maintenance of good order and discipline to release the arrested officer from custody, order the further remand of the arrested officer in custody for such period or periods as do not exceed in the aggregate 24 hours:
Provided that where the officer in charge is unable to communicate with the Commissioner in order to make a report in accordance with this section, he may, after consultation with the District Commissioner, himself order the further remand of the arrested officer in custody for such period or periods as do not exceed in the aggregate 24 hours.
(5) Where an arrested officer is remanded or further remanded in custody under this section because it is not reasonably practicable for the officer in charge immediately to deliver him, or cause him to be delivered, over to the police authorities, the officer in charge shall deliver him, or cause him to be delivered, over to the police authorities as soon as it is reasonably practicable to do so.
(6) The officer in charge of a prison shall forthwith transmit in writing to the Commissioner particulars of every arrest under this section and
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