CHAPTER 21:05
BOTSWANA DEFENCE FORCE
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
3. Persons subject to this Act
4. Provisions as to active service
5. Protection of members on active or operational service
6. No appropriations, seizures, attachments, etc.
7. Injury or illness on military service
PART II
Establishment of the Defence Force
8. Establishment and maintenance of the Defence Force
9. Functions of the Defence Force
10. Employment of the Defence Force outside Botswana
11. Availability of members of the Defence Force for military duties
12. Deployment of the Defence Force
13. Obligation to serve during a state of emergency
14. Oaths and administration of oaths
15. Authority to administer oaths
16. Limitation of liability
17. Overseas training, duty and employment
PART III
Military Lands
18. Power to acquire land for use by the Defence Force
19. Declaration of military land, garrisons, installations, property etc. as a protected place or area
20. Power to let, lease, borrow and use land
21. Use of land for military purposes
PART IV
Defence Council
22. The Defence Council
23. Committees of the Defence Council
24. Determination of pay, allowances and other conditions of service
25. Conduct of business of the Defence Council
PART V
Command
26. Commander in Chief of the Armed Forces
27. Appointment of command of the Defence Force
28. Appointment of officers
29. Functions of the Commander
30. Command and precedence
31. Use and retention of rank on retirement
PART VI
Co-operation With Other Authorities
32. Co-operation with other authorities
33. Use of the Defence Force in support of the Police
PART VII
Relations With Other Forces
34. Powers of command of members of co-operating forces
PART VIII
Limitations of Fundamental Rights and Freedoms of Persons Subject to this Act
35. Conditions for limitations of fundamental rights and freedoms
PART IX
Enlistment, Terms of Service, etc.
36. Enlistment
37. Terms and conditions of enlistment and service
38. Forfeiture of service due to desertion and absence without leave
39. Discharge etc. from the Regular Force and transfer to the Reserve Force
40. Administrative reduction in rank
41. Pay, allowances, entitlements and rewards
42. Retirement of officers
43. Retirement of soldiers
PART X
Discipline and Trial and Punishment of Military Offences
Treachery, Cowardice and Offences Arising Out of Military Service
44. Persons subject to this Part
45. Application of Act to civilians in support of or who accompany the Force in deployment or active service
46. Application of Act to Reserve Force
47. Principal offenders
48. Accessory after the fact
49. Conviction of lesser included offences
50. Attempts
51. Aiding the enemy
52. Failure to take essential security measures
53. Conspiracy
54. Spying
55. Espionage
56. Communication with the enemy
57. Cowardly behaviour
58. Offences against morale
59. Prisoner of war
60. Offences by or in relation to sentries, etc.
61. Looting
62. Neglect of duty
63. Offences by officer or soldier when on active or operational service
64. Offences by person in command when on active or operational service
65. Misconduct on active or operational service
66. Offences of torture or cruel treatment
Mutiny, Sedition and Insubordination
67. Mutiny and insubordination
68. Sedition
69. Punishment for mutiny
70. Riot or breach of peace
71. Contempt towards officials
72. Insubordinate behaviour
73. Provoking speeches or gestures
74. Duelling
75. Unlawful use of violence
76. Assault occasioning actual bodily harm
77. Quarrelling
78. Obstruction of officers, soldiers, etc.
79. Disobedience to particular orders
80. Disobedience to standing orders
Desertion, Absence Without Leave, etc.
81. Desertion
82. Absence without leave
83. Assisting and concealing desertion and absence without leave
84. Falsely obtaining or prolonging leave
85. Failure to perform military or assigned duties
86. Missing movement
Malingering and Drunkenness
87. Malingering
88. Drunkenness or exceeding the prescribed limits
Offences Relating to Property
89. Definition of robbery
90. Punishment for robbery
91. Attempted robbery
92. Extortion
93. Unlawful sale, loss, damage, destruction or disposition of military property
94. Loss or hazarding of aircraft, vessel or vehicle
95. Improper carriage of goods
96. Larceny and wrongful appropriation
97. Offences in relation to property of members of Forces
98. Waste, spoilage or destruction of property other than military property
99. Arson
100. Miscellaneous offences relating to property
101. Housebreaking
102. Breaking into building
103. Criminal trespass
Offences Relating to Billeting and Requisitioning of Vehicles
104. Billeting offences
105. Offences in relation to requisition of vehicles
Offences Relating to Flying
106. Dangerous flying
107. Low flying
108. Annoyance by flying
Offences Relating to Detention and by, Persons in Custody
109. Irregular arrest and confinement
110. Permitting escape, and unlawful release, of prisoners
111. Resistance to arrest
112. Escape from confinement
Offences in Relation to Military Prisons
113. Prohibition of dangerous items, liquor, tobacco, etc.
114. Unlawful communication with prisoners
115. Unauthorised entry into military prison
Offences in Relation to Courts-Martial and Other Authorities
116. Offences in relation to courts-martial
117. Perjury
Miscellaneous Offences
118. Injurious disclosures
119. False answers in attestation papers
120. Fraudulent enlistment, appointment or separation
121. Effecting unlawful enlistment, appointment or separation
122. Making of false statements on enlistment
123. Failure to protect classified information
124. Failure to declare circumstances for release from Defence Force
125. Offence in relation to enlistment
126. Making of false documents
127. Fraud
128. Forgery
129. Making, drawing or uttering cheque, draft or order without sufficient funds
130. False answers, information or documents
131. Inaccurate certification
132. Scandalous conduct of an officer
133. Ill-treatment of officers or men of inferior rank
134. Abuse of military authority and unlawful command influence
135. Fraternisation
136. Sexual harassment
137. Adultery
138. Offences relating to dual citizenship
139. Cheating in examinations and plagiarism
140. Aiding, abetting, counselling or procuring
141. Disgraceful or discreditable conduct
142. False accusation, etc.
143. Offences in relation to inoculation, etc.
144. Wrongful use, possession, of controlled substances
145. Refusal to undergo drug testing
146. Negligent or unlawful discharge
147. Unauthorised engagement for profit in trade or business or other activities
148. Restraint on release, communication and use of certain knowledge, skills, etc.
149. Prohibition and restriction of retired and former members from employment by foreign governments and other entities, etc.
150. Active participation in politics
151. Political activity in military installations
152. Conduct to the prejudice of military discipline
153. Leaving the country without permission
154. Restriction and guidelines on marriage
Civil Offences
155. Civil offences
Field Punishments
156. Field punishments
Arrest
157. Powers to arrest offenders
158. Provisions for avoiding delay after arrest
Investigations of, and Summary Dealing With, Charges
159. Reporting of charges to commanding officer and referral to military police or other appropriate authorities for investigation
160. Charges to be dealt with summarily or by court-martial
161. Rights of an accused person during summary proceedings
162. Further proceedings on charges against non-commissioned officers and soldiers
163. Further proceedings on charges against officers and Warrant Officers
164. Dismissal of charges referred to Director of Military Prosecutions
165. Power of commanding officers to delegate powers
166. Limitation of powers of summary dealing with charges
167. Review of summary findings and awards
Trial by Court-Martial
168. Courts-martial
169. Trial by, and power of, the court-martial
170. Court administration officer
171. Constitution of a general court-martial
172. Officers and Warrant Officers qualified for membership of a general court-martial
173. Officers and Warrant Officers ineligible for membership of the court-martial
174. Constitution of a special court-martial
175. Appointment of judge advocate
176. Challenges by accused
177. Administration of oaths
178. Court-martial to sit in open court
179. Rulings and directions of court-martial
180. Decisions of a general court-martial
181. Finding and sentence of court-martial
182. Power to convict of an offence other than that charged
183. Rules of evidence
184. Privilege of witnesses
185. Punishments available to court-martial
186. Offences by civilians in relation to court-martial
187. Affirmations
188. Approval of death sentence
189. Petition against finding or sentence
190. Review of finding and sentence of court-martial
191. Reconsideration of sentences of imprisonment and detention
192. Fitness to stand trial
Commencement, Suspension and Duration of Sentences
193. Commencement of sentences
194. Commencement of sentences of imprisonment, detention or field punishment
195. Duration of sentence of imprisonment, detention or field punishment
196. Suspension of sentence of imprisonment, detention or field punishment
197. Activation by court-martial of suspended sentence of detention
198. Activation by commanding officer of suspended sentence of detention
199. Activation by commanding officer: maximum term
200. Restriction on serving of sentence of detention in prisons
201. Service of sentence of imprisonment
202. Special provisions as to civil prisons in Botswana
203. Special provisions as to carrying out or serving sentences outside Botswana
204. Country in which sentence of imprisonment or detention to be served
205. Duties of officers in charge of prisons and others to receive prisoners
Trial of Persons Ceasing to be Subject to this Act and Time Limits for Trials
206. Trial and punishment of offences under this Act notwithstanding offender ceasing to be subject thereto
207. Limitation of time for trial of offences under this Act
208. Postponement of discharge or transfer pending proceedings for offences
Relations Between Military and Civil Courts and Finality of Trials
209. Powers of civil courts
210. Persons not to be tried under this Act for offences already disposed of
211. Resolution of conflict of jurisdiction
212. Criminal proceedings against a member of Defence Force
Enquiries
213. Boards of enquiry
214. Enquiries into absence
Miscellaneous Provisions
215. Restitution or compensation for theft, etc.
216. Director of Military Prosecutions
217. Delegation of powers and function by the Director of Military Prosecutions
218. Appointment of prosecuting officers
219. Promulgation
220. Custody of proceedings of courts-martial and right of accused to copy thereof
221. Indemnity for prison officers, etc.
222. Notification of prosecution of members of the Defence Force
Rules of Procedure, etc.
223. Rules of procedure
224. Imprisonment and Detention Regulations
225. Board of Enquiry Rules
226. Miscellaneous regulations
Interpretation of Part X
227. Interpretation of Part X
PART XI
Appeals
228. Appeal from court-martial
229. Appeal to Court of Appeal
230. Appeal on charges dealt with summarily
231. Person not to be tried again where conviction quashed
232. Removal of prisoners for purposes of this Part
233. Furnishing, on appeal, of documents relating to trial
234. Saving of powers of reviewing authorities
PART XII
Forfeitures and Deductions
235. Forfeitures and deductions: general provisions
236. Forfeiture of pay for absence from duty
237. Deductions for payment of civil penalties
238. Compensation for loss occasioned by wrongful act or negligence
239. Deductions for barrack damage
240. Remission of forfeitures, etc.
PART XIII
Governmental and General Provisions
Redress of Complaints and Individual Grievances
241. Redress of individual grievances
242. Service complaints and summary appeals: role of Defence Council and service complaints and appeals panel
243. Composition and procedure of service complaints and appeals panel
244. Referral of officers’ grievances to the President
Inspector-General
245. Inspector-General
246. Functions of the Inspector-General
247. When Inspector-General can conduct inquiries or investigations
Provisions With Respect to Office of Judge Advocate General
248. Appointment and functions of Judge Advocate General
249. Qualifications of Judge Advocate General
250. Tenure of office of Judge Advocate General
Military Police
251. Functions and powers of military police
Practice by Combat Paramedics, Combat Medics, Combat Lifesavers
252. Purpose of this Part
253. Interpretation
254. Practice by medical practitioners, combat paramedics, combat medics, combat lifesavers etc.
255. Status of medical practitioners, combat lifesavers, combat medics, combat paramedic personnel, etc. of allied military forces
256. Duties, training and liability of combat lifesavers
Administrative Actions
257. Administrative actions
Exemptions for Officers and Soldiers
258. Exemption from service as assessor
259. Exemption from execution of property used for military purposes
Provisions Relating to Deserters and Absentees Without Leave
260. Arrest of deserters and absentees without leave
261. Proceedings before a civil court for persons suspected of illegal absence
262. Deserters and absentees without leave surrendering to police
263. Certificate of arrest or surrender of deserters and absentees
264. Duties of officers in charge of prisons and others to receive deserters and absentees
Offences Relating to Military Matters Punishable by Civil Courts
265. Application of this Part
266. Punishment for pretending to be a deserter
267. Punishment for procuring and assisting desertion
268. Punishment for obstructing officers or soldiers in execution of duty
269. Punishment for aiding malingering
270. Unlawful purchase, etc., of military stores
271. Illegal dealings in documents relating to pay, pensions, mobilisation, etc.
272. Unauthorised use of, and dealing in, uniform, decorations, etc.
273. Unauthorised taking of pictures and making of sketches in military installations
Provisions as to Evidence
274. General provisions as to evidence
275. Proof of outcome of civil trial
276. Evidence of proceedings of court-martial
Miscellaneous Provisions
277. Temporary reception in civil custody of persons under escort
278. Avoidance of assignment of, or charge on, military pay, pensions, etc.
279. Power of certain officers to make statutory declarations
280. Presumption of death of missing persons
281. Medical evaluation
PART XIX
Billeting and Requisitioning of Vehicles
282. Billeting orders
283. Compensation for billets
284. Instances where billeting orders may be issued
285. Premises in which billets may be required
286. Billeting
287. Accommodation to be provided, and payment thereof
288. Where there is no occupier
289. Appeals against billeting
290. Compensation for damages
291. Application to civilians employed with Defence Force and to aircraft, vessel and boats
292. Requisitioning orders
293. Requisitioning direction
294. Period for which vehicles are to be requisitioned
295. Provision of vehicles for purchase
296. Payment for vehicles requisitioned
297. Avoidance of hardship in requisitioning vehicles
298. Issue of search warrant in relation to billets
299. Damage by vehicles being delivered for requisitioning
300. Application to aircraft, vessels, horses, etc., food, forage and stores
301. Bringing into operation sections 282 and 292
302. Refusal to receive persons billeted, etc.
303. Enforcement of requisitioning
PART XV
Visiting Forces
304. Interpretation of this Part
305. Power to apply this Part
306. Powers of military courts of visiting forces
307. Prosecution and trial for civil offences
308. Proof of certain facts
PART XVI
Reserve Force
309. Composition of Reserve Force
310. Transfer to Reserve Force
311. Calling out reservists for annual training
312. Calling out reservists temporarily
313. Calling out reservist on permanent service
314. Punishment for non-attendance
315. Record of illegal absence
316. Release from reserve during active or operational service
317. Discharge from Reserve Force
318. Reporting of Reserve Force
319. Embodiment
320. Postponement of discharge
321. Failure to attend on embodiment
322. Power to make regulations under this Part
PART XVII
Application of Act and Supplementary Provisions
323. P.M.U. members enlisted in Defence Force
324. Exemption from certain licences, permits to operate certain equipment in certain cases
325. Power to make regulations
326. Power to issue standing orders, orders and instructions
327. Powers exercisable in subsidiary legislation
328. Execution of orders, instruments, etc.
329. Uniforms and decorations not part of estate
330. Property of deserter
331. Compensation for members and claims against the Defence Force
Defence Force Morale, Welfare and Recreation Programmes
332. Interpretation of this Part
333. Establishment of morale, welfare and recreation programmes
334. Objectives of morale, welfare and recreation programmes
335. Composition of non-appropriated fund instrumentalities
336. Payment of employees of non-appropriated fund instrumentalities
337. Buildings and utilities for non-appropriated fund instrumentalities
Commissaries and Messes
338. Power to authorise establishment of commissaries and messes
339. Sale of goods without licence at commissaries and messes
340. Purpose of the commissaries and messes system
341. Oversight of the commissaries and messes system
342. Operating expenses of commissaries and messes
343. Merchandise that may be sold at commissaries and messes
Membership of Messes
344. Establishment of messes and authority to order membership and payment of subscriptions
Botswana Defence Force Welfare Trust Fund
345. Establishment of Welfare Trust Fund
Rewards and Fines Fund
346. Establishment of Rewards and Fines Fund
Other Welfare Programmes and Schemes
347. Other welfare programmes and schemes
348. Contributions to morale, welfare and recreation programmes
349. Power to make regulations for this Part
PART XVIII
Repeals, Transitional and Savings Provisions
350. Repeal of Cap. 21:05
351. Transitional and savings
Schedule 1 - Conduct of Business and Affairs of the Defence Council
Schedule 2 - Punishments Available to the Court-Martial
Schedule 3 - Certificate of Arrest or Surrender of Deserters and Absentees
Schedule 4 - Certificate of Presumption of Death
Schedule 5 - Military Medical Fitness Certificate (For Purposes of Entry, Annual Assessment, Deployment, Exit and Other)
Act 13, 1977,
Act 34, 1979,
Act 23, 1980,
Act 10, 1981,
Act 20, 1987,
Act 12, 1994,
Act 8, 1997,
Act 10, 2000,
Act 4, 2005,
S.I. 57, 2006,
Act 18, 2006,
Act 19, 2014,
Act 3, 2018,
S.I. 49, 2018,
S.I. 104, 2018,
Act 7, 2020.
An Act to provide for the establishment, administration, recruitment, conditions of service, training, command, discipline and employment of the Botswana Defence Force; to declare offences, restrictions and penalties; to make provision for trials by court-martial and for appeals therefrom; to prevent the unauthorised wearing or use of military uniforms, decorations, medals or badges, and the unauthorised use of certain military documents; and for matters incidental to the foregoing and connected therewith.
[Date of Commencement: 23rd April 2018 (ss 1 to 158, 168, 194 to 216, 220 and 222 to 351); 6th July, 2018 (ss 159 to 167, 169 to 193, 217 to 219 and 221)]
PART I
Preliminary (ss 1 - 7)
This Act may be cited as the Botswana Defence Force Act.
In this Act, unless the context otherwise requires—
"acting rank" means a rank higher than the member’s substantive rank to which the member may be appointed to act but the member receives financial compensation of the substantive rank;
"active service" shall be construed, in relation to any unit or part of the Defence Force, that it is engaged in operations against the enemy, and, in relation to a person, that the person is serving in or with a unit or part of the Defence Force which is on active service;
"aircraft" means any fixed or rotary wing flying machines, guided missiles that derive their lift in flight chiefly from aerodynamic forces, and flying devices that are supported chiefly by their buoyancy in the air, and includes any aeroplane, kite balloon, airship, glider or kite;
"aircraft material" includes—
(a) parts of, and components of or accessories for, aircraft, whether for the time being in the aircraft or not;
(b) engines, armaments, ammunition and bombs, and other missiles of any description in, or for use in, aircraft;
(c) any other gear, apparatus or instruments in, or for use in, aircraft;
(d) any apparatus used in connection with the taking-off or landing of aircraft or for detecting the movement of aircraft;
(e) any fuel used for the propulsion of aircraft and any material used as a lubricant for aircraft or aircraft material;
"air signal" means any message, signal or indication given, by any means whatsoever, for the guidance of aircraft or a particular aircraft;
"appointment" includes a transfer, a promotion, a temporary appointment and an acting appointment;
"appropriate superior authority" in relation to an officer charged with an offence means—
(a) in the case of officers of the rank of Colonel, an officer of the rank of Major General and above;
(b) in the case of officers of the rank of Lieutenant-Colonel, an officer not below the rank of Brigadier within the member’s command; or
(c) in the case of officers of the rank of Major, any officer not below the rank of Colonel within the member’s command;
"Auxiliary Force" means a military or para-military type augmentation force which shall be called primarily for protection and other duties to allow the Regular Force to conduct combat and offensive operations;
"before the enemy" means that a person being in reasonable tactical proximity to enemy or opposition forces while engaged in active kinetic military operations;
"billeting" means lodging of troops provided by the Defence Force;
"billeting order" means an order directing that such lodging be provided;
"Board of Enquiry Rules" means rules made by the President under section 225;
"civil court" means a court of ordinary criminal jurisdiction, but does not, except where otherwise expressly provided, include any such court outside Botswana;
"civil offence" has the meaning assigned to it in section 155;
"classified information" means any information whose unauthorised disclosure would prejudice security of the Defence Force, national security and includes information on strategy, doctrine, capability, capacity, acquisition, plans (including operational plans and orders), deployment of the Defence Force;
"command" means—
(a) a military order by any person whose rank, position, appointment or duty entitles the member to give the order;
(b) as applied to the authority of an officer, warrant officer or non-commissioned officer deriving from the member’s military status;
(c) a geographical area, of given boundaries, in which troops are stationed and may contain districts, areas, or further sub-divisions; and
(d) a body of troops over which an individual has direct authority, and in the case of a battalion commander it includes the person’s unit;
"Commander in Chief" means the President as defined in the Constitution of Botswana;
"commanding officer"—
(a) means the officer who is the commanding officer of a person for the purposes of any provision made by or under this Act;
(b) when used in relation to a member of the Defence Force, means the officer prescribed by regulations as having powers of command over that person; or
(c) in relation to a person charged with an offence, means the officer for the time being commanding the unit or detachment to which the person belongs or is attached;
"competent military authority" means the Defence Council or any officer as may be prescribed;
"corresponding civil offence" has the meaning assigned to it in section 155;
"court administration officer" means an officer appointed under section 170;
"court-martial" means a military court established under section 168;
"damage" includes destruction, and references to damaging shall be construed accordingly;
"date of attestation", in relation to any person, means the date on which the person attests in accordance with the provisions of regulations made under this Act;
"day’s pay" means the annual pay divided by the number of days in the year;
"decoration" includes medal, medal ribbon, clasp and good-conduct badge, honour badge;
"Defence Council" means the Defence Council established under Part IV;
"Defence Force" means the Botswana Defence Force continued under section 8;
"Department of Defence" means the Department responsible for Defence in the Ministry responsible for Defence;
"desertion" shall be construed in accordance with section 81;
"detachment" means a part of a unit which is so separated from the unit to which it belongs that the officer commanding that unit cannot effectively exercise disciplinary powers as commanding officer over it;
"detention" refers to a period of confinement at a designated detention facility and includes—
(a) a punishment,
(b) confinement during trial, or
(c) confinement prior to sentencing by court-martial or the High Court;
"discharges" means—
(a) separation of a member from duty in the Defence Force,
(b) discharging a member on other than honourable grounds, and
(c) cashier or to dismiss a member with ignominy or disgrace;
"duty" means military duty and includes—
(a) every duty which an officer or soldier may legally be required by superior authority to execute;
(b) when in the actual exercise of command, the commander of a post, or of a command, or of a detachment in the field is constantly on duty, as is the commanding officer on board a vessel;
(c) in the case of other officers or soldiers, duty relates to duties of a routine or detail, in garrison, at a station or in the field, and does not relate to those periods when, no duty being required of them by orders or regulations, officers and soldiers occupy the status of leisure known as "off duty" or "on liberty";
(d) in a region of active hostilities, all members of a command may properly be considered as continuously being on duty within the meaning of this Act; and
(e) an officer of the day and members of the guard, or of the watch, are on duty during their entire tour within the meaning of this Act;
"employee" means a person appointed to the Department of Defence in terms of the Public Service Act (Cap. 26:01) and/or any other law that may be in force from time to time, or any person regarded as having been appointed to the Defence Secretariat;
"enemy" includes—
(a) all persons engaged in armed operations or hostilities against the Defence Force and any forces co-operating therewith;
(b) all armed mutineers, armed rebels and armed rioters; and
(c) entities engaged in hostile actions against the State and its interest;
"field rank" means the rank of Major and any higher rank, and "field officer" shall be construed accordingly;
"fraternisation" means personal relationships in the Defence Force that contravene the customary bounds of acceptable senior-subordinate relationships and includes—
(a) improper relationships or social interaction between officers, between officers and soldiers or between soldiers;
(b) actions that have the potential to adversely affect morale, discipline, respect for authority, unit cohesion or mission accomplishment, such as—
(i) officers gambling with soldiers,
(ii) officers borrowing money from soldiers and vice versa,
(iii) officers engaging in sexual relations or dating soldiers and vice versa,
(iv) officers sharing living accommodation with soldiers, or
(v) officers engaging, on a personal basis, in business enterprises with soldiers, or soliciting sales to or from soldiers;
"full time staff of the Reserve Force" means staff engaged on a full time and defined basis and receiving pay for that engagement in the Reserve Force;
"Imprisonment" refers to a period of confinement in a military prison following conviction by court-martial or the High Court;
"Imprisonment and Detention Regulations" means regulations made under section 224;
"judge advocate" means a person appointed as such under section 175;
"judge advocate general" means a person appointed as such under section 248;
"local rank" means a rank to which an officer or a member of the Force may be appointed, higher than the member’s substantive rank, which is neither a substantive rank nor an acting rank, which does not entitle the member to any increase in pay or other financial benefit, and which is made in circumstances where there is no vacancy in the establishment for officers or members of such rank, but where the officer or other member is required to perform the duties of such rank;
"member" means officer or soldier of the Regular Force of the Defence Force, Defence Force Reserve, Auxiliary Force or the Volunteer Force;
"military" shall be construed as relating to all or any part of the Botswana Defence Force;
"military police" means members subject to this Act with powers of policing within military jurisdiction;
"Minister" means the Minister responsible for Defence;
"non-commissioned officer" means a soldier holding the rank of staff sergeant or below and does not include a soldier of the rank of private or equivalent;
"officer" or "commissioned officer" means—
(a) a member who holds a presidential commission in the Botswana Defence Force;
(b) any person who pursuant to law is attached or seconded as an officer to the Botswana Defence Force; but does not include a person who is—
(i) appointed to honorary commissioned rank, or
(ii) the holder of an honorary appointment;
"operational service" means military operations to the exclusion of operations on active service involving the possibility of engaging an enemy, a combatant, belligerent, armed opponents or other hostiles by members of the Defence Force;
"other ranks" means soldiers or members of the Defence Force who are not officers;
"pay" means basic salary plus allowances, entitlements and privileges;
"prescribed working days for members of the Defence Force" means the number of working days a member of the Defence Force is presumed to be at work and is equal to the number of calendar days in the year:
Provided that members will be reasonably afforded free days or passes on weekends and public holidays as applicable, unless otherwise required to be on duty;
"promote" means to raise a member to a higher rank;
"provost" means relating to the Military Police;
"provost-marshal" means the prescribed officer having command over provost officers and other ranks of the Military Police, who is also the head of the Military Police of the Defence Force;
"provost officer" means an officer appointed to exercise the provost functions conferred by or under this Act;
"public property" means any property belonging to any department of the Government or held for the purposes of any such department;
"rank" includes—
(a) acting rank;
(b) field rank;
(c) local rank; and
(d) substantive rank;
"recruiting officer" means a member authorised to arrange for the entry of persons as members in the Defence Force as such under section 36;
"Regular Force" means the Regular Force of the Defence Force referred to in section 8(2);
"Reserve Force" means the Defence Force Reserve referred to in section 8(2);
"Repealed Act" means the Botswana Defence Force Act (Cap. 21:05) repealed under section 350;
"Rules on the Use of Force" means pre-approved directives, rules or orders to guide the Defence Force on the use of force during various operations in self-defence or to accomplish their mission, primarily in domestic or internal operations or in operations in support of civil authority;
"Rules of Engagement" means pre-approved directives, rules or orders to guide the Defence Force on the use of force during various operations in self-defence or to accomplish their mission against an adversary, primarily in operations outside of Botswana;
"Rules of Procedure" means the Rules of Procedure made by the President under section 223;
"service", when used adjectively, means belonging to or connected with the Defence Force or any part of the Defence Force, or any force co-operating therewith;
"service", when used as a noun, means a particular kind of duty;
"soldier" does not include an officer but, with the modifications contained in this Act in relation to Warrant Officers and non-commissioned officers, includes a Warrant Officer and a non-commissioned officer;
"stoppages" means the recovery, by deductions from the pay of the offender, of a specified sum by way of compensation for any expense, loss or damage occasioned by the offence;
"substantive rank" means a permanent rank held by a member which is not acting or local rank;
"summary trial" means a trial conducted by or under the authority of a commanding officer or appropriate superior authority in accordance with Summary Jurisdiction Regulations;
"The Commander" means the person appointed under section 27;
"unit" means—
(a) a battalion, regiment, air squadron or any equivalent body of troops; or
(b) any other body of the Defence Force declared to be a unit;
"Volunteer Force" means a force which may be raised from time to time as may be required to augment the Defence Force;
"war" means, armed conflict, armed invasion or armed insurrection or is at war, and for which the Defence Force has been employed for service in the defence of the State, and any period during which the State is under threat of war; and
"Warrant Officer" means a soldier holding the rank of Warrant Officer Class I or Warrant Officer Class II.
(2) References in this Act to officers and soldiers of the Defence Force shall be construed as including references to officers and soldiers attached or seconded to the Defence Force.
3. Persons subject to this Act
(1) Subject to section 44, the following persons are subject to this Act—
(a) officers and soldiers of the Regular Force;
(b) officers and soldiers when attached to the Defence Force or any part thereof;
(c) officers and soldiers of the Reserve Force when deployed in terms of section 312, 313 or 319;
(d) officer cadets;
(e) officers and soldiers of the Auxiliary Force referred to in section 8(2); and
(f) officers and soldiers of the Volunteer Force referred to in section 8(2).
(2) This Act shall apply to persons subject thereto both inside or outside Botswana notwithstanding their attachment under section 10 or 17.
4. Provisions as to active service
(1) Where it appears to the President that, by reason of the imminence of active service or of the recent existence of active service, it is necessary in the public interest that a unit should be deemed to be on active service, he or she may declare that for such period, not exceeding six months beginning with the coming into force of the declaration as may be specified therein, that unit shall be deemed to be on active service.
(2) Where it appears to the President necessary in the public interest that the period specified in a declaration under subsection (1) should be prolonged, or, if previously prolonged under this section, should be further prolonged, he or she may declare that the said period shall be prolonged by such period, not exceeding six months, as may be specified in the declaration under this subsection.
(3) If any time while a unit is deemed to be on active service by virtue of this section it appears to the President that there is no longer necessity for the unit to continue to be treated as being on active service, he or she may declare that from the coming into operation of the declaration the unit shall cease to be deemed to be on active service.
(4) Any declaration under this section shall be by proclamation published in the Gazette.
5. Protection of members on active or operational service
(1) For the purposes of this section "member" includes an employee deployed with the Defence Force.
(2) Where a member of the Defence Force has been captured or has gone missing in circumstances not constituting an offence under this Act, and the member’s commanding officer is satisfied that the member’s capture or absence arose from the performance of the member’s duties while rendering services in terms of this Act, such member shall be regarded to be still serving in the Defence Force for all purposes until the day on which he or she again reports for duty or on which his or her death is confirmed or on which a competent court issues an order whereby the death of such member is presumed.
(3) The pay or any portion thereof accruing to a member during his or her captivity or other absence contemplated in subsection (2) may be paid to a beneficiary designated by the member concerned.
(4) The Commander shall take the necessary steps to ensure that for every member of the Defence Force, there is at all times a record of the particulars of the beneficiary designated by such member for purposes of subsection (3).
(5) A member of the Defence Force may designate another person in the place of the person designated for purposes of subsection (3) and shall ensure that any change in designation is notified to the Commander in writing.
(6) Any change in designation becomes valid for purposes of subsection (3) when it is received by or on behalf of the Commander.
6. No appropriations, seizures, attachments, etc.
Notwithstanding any other law relating to the protection of citizens, no appropriations, including seizures or attachments, may be made under or by virtue of any writ of execution, garnishee or sequestration order issued against a member of the Defence Force who is employed on active service during a state of emergency or in fulfilment of peace support operations, except appropriations under or by virtue of a maintenance order issued against the said member.
7. Injury or illness on military service
(1) A member of the Defence Force who, through no misconduct on the member’s part, sustains a wound or injury or contracts an illness while on military service or undergoing training is, under such conditions and for such period as may be prescribed, entitled to be provided with medical, dental and psychological or other necessary treatment for such wound, injury or illness, notwithstanding that the duration of such treatment may extend beyond that member’s service contract.
(2) A member who is receiving the treatment referred to in subsection (1) shall receive the member’s pay and allowances on their becoming due and such period of treatment shall for all purposes be regarded as duty.
PART II
Establishment of the Defence Force (ss 8 - 17)
8. Establishment and maintenance of the Defence Force
(1) The Botswana Defence Force established under the Repealed Act is hereby continued under this Act.
(2) The Defence Force shall consist of—
(a) the Regular Force of the Defence Force;
(b) the Defence Force Reserve and may include a Volunteer Force of the Defence Force; and
(c) the Auxiliary Force.
(3) The Defence Force shall consist of such number of members as shall be determined by the President from time to time.
(4) Such components of the Defence Force referred to in subsection (2) may be formed into units or other military bodies as the President may from time to time determine.
(5) The Defence Force shall be organised, trained, equipped and armed to pursue its mandate and shall procure such armament as may be required for the effective fulfilment of its mandate.
9. Functions of the Defence Force
The Defence Force shall defend the Republic of Botswana and provide for her security, participate in external security co-operation activities, and contribute in domestic support operations, with the aim of—
(a) protecting the Constitution of the Republic of Botswana;
(b) defending territorial integrity of the Republic of Botswana on land, in the air and at sea;
(c) contributing to national security and stability;
(d) protecting national interests of the Republic of Botswana;
(e) protecting the people and their property;
(f) preserving the Republic of Botswana as a free, independent and sovereign State;
(g) aiding civil authorities in domestic support operations; and
(h) performing such other duties as may from time to time be determined by the President.
10. Employment of the Defence Force outside Botswana
The President may order that the whole or any part of the Defence Force shall be employed out of or beyond Botswana.
11. Availability of members of the Defence Force for military duties
(1) Members of the Defence Force shall at all times be available for the discharge of such functions referred to in sections 9 and 10 and shall be deemed to be on duty, unless otherwise authorised.
(2) For the fulfilment of subsection (1), members of the Defence Force shall be required, under prescribed circumstances, to be at prescribed places at prescribed times.
(3) Special permission by a competent military authority under such circumstances shall be required if a member is to be exempt from the provisions of subsection (1).
12. Deployment of the Defence Force
(1) For purposes of sections 9 and 10, the whole or any part of the Defence Force may be deployed.
13. Obligation to serve during a state of emergency
(1) Subject to this Act, every person who is contracted to serve in the Defence Force is obliged to serve and remain in service during a state of emergency or when so required.
(2) Nothing in this section may be construed as prohibiting an application for exemption or deferment of service by a member of the Defence Force in terms of this Act.
14. Oaths and administration of oaths
The following persons shall not enter upon duties until they have taken or subscribed the oath of allegiance—
(a) a person who becomes a member of the Botswana Defence Force;
(b) a person being commissioned as an officer for service in the Defence Force;
(c) a member subject to this Act who is promoted to the rank of Warrant Officer Class 2 and above in the case of other ranks and to the rank of Major and above in the case of officers; and
(d) a member assuming responsibility requiring him or her to take an oath.
15. Authority to administer oaths
The following members are authorised to administer oaths in the Defence Force—
(a) officers of the rank of Captain and above; and
(b) Warrant Officers.
The Commander or any member of the Defence Force shall not be liable for any action or proceedings for any act or matter done in good faith in the exercise of the powers under this Act.
17. Overseas training, duty and employment
(1) The Commander may order that any officer or soldier of the Regular Force, or, with the person’s consent, any officer or soldier of the Defence Force Reserve and any officer or soldier of the Auxiliary Force shall proceed to any place outside Botswana for the purpose of undergoing instruction or training or for duty or employment.
(2) The Commander may order officer cadets to proceed for training outside Botswana.
(3) The President may, if the consent of the officer or soldier concerned is first obtained, place any officer or soldier of the Defence Force at the disposal of military authorities of any other country for the purpose of his or her being attached to the armed forces of that country.
PART III
Military Lands (ss 18 -21)
18. Power to acquire land for use by the Defence Force
(1) Land that has been granted for use by the Defence Force in terms of the Tribal Land Act (Cap. 32:02), the State Land Act (Cap. 32:01) or any other written law shall be declared or zoned as "military land".
(2) "Military land" may not be converted for use for any other purpose except for military use or for the benefit of the Defence Force without the authority of the President.
19. Declaration of military land, garrisons, installations, properties etc. as a protected place or area
(1) The President may declare land, garrisons, installations, properties, etc. to be a protected place and/or restricted area in accordance with sections 4 and 5 of the Protected Places and Areas Act (Cap. 22:01).
(2) Such land, place or area may have a buffer zone or an associated restricted airspace as may be determined.
20. Power to let, lease, borrow and use land
(1) The Defence Force may lease or borrow from any person, body of persons, or authority holding land in any capacity for private or public purposes, such land for use for military purposes.
(2) A lease, letting or borrowing under this section shall cease to have effect if the land ceases to be used for military purposes.
21. Use of land for military purposes
Land acquired under section 20 may not be used for any other purpose unless as so authorised by the President.
PART IV
Defence Council (ss 22 - 25)
(1) There shall be a Defence Council which shall, subject to the provisions of this Act and to the general or special directions of the President, be responsible for the control, direction, and general superintendence of the Defence Force.
(2) The responsibility of the Defence Council shall not extend to the operational use of the Defence Force, which shall remain vested in the President who may delegate such responsibility as he or she may think fit to the Commander.
(3) The Defence Council shall consist of the following members—
(a) Minister responsible for Defence who shall be the Chairperson;
(b) Minister responsible for Finance;
(c) the Permanent Secretary to the President;
(d) Attorney-General;
(e) Permanent Secretary in the Ministry responsible for Defence;
(f) Permanent Secretary in the Ministry responsible for Finance;
(g) the Commander and the Deputy Commander, who shall be ex-officio members; and
(h) such other persons as the President may, from time to time, appoint.
(4) Ex-officio members shall not have voting rights.
23. Committees of the Defence Council
(1) The Defence Council may establish committees for the effective discharge of its functions.
(2) The Defence Council may co-opt into the membership of the committees established under subsection (1) other persons whose knowledge and skills are considered necessary for the functions of the Council.
(3) Any person co-opted into a committee of the Defence Council under subsection (2) may attend the meetings of the Council and participate in its deliberations, but shall not vote.
24. Determination of pay, allowances and other conditions of service
(1) The Defence Council shall regularly review the pay, allowances, entitlements, rewards and other conditions of service of members of the Defence Force and make recommendations to the President.
(2) The Minister shall recommend to the President allowances and other conditions of service of the Defence Council.
25. Conduct of business of the Defence Council
The business and affairs of the Defence Council shall be conducted in accordance with Schedule 1.
PART V
Command (ss 26 - 31)
26. Commander in Chief of the Armed Forces
Pursuant to section 48(1) of the Constitution of Botswana, the President is the Commander in Chief of the Armed Forces.
27. Appointment of command of the Defence Force
(1) The President shall appoint the command of the Defence Force which shall include an officer to be the Commander, the Deputy Commander, and Command Commanders.
(2) The Commander, the Deputy Commander and Command Commanders shall have such ranks and titles and fulfil such duties and functions as may be determined by the President.
(3) The command of the Defence Force shall vest in the Commander and the Commander may make such leadership and other appointments of officers and Warrant Officers as may be necessary for the proper functioning of the Defence Force.
(4) The Commander may delegate to any officer under his or her command such duties, functions and powers, other than such power of delegation, as he or she may from time to time deem expedient.
(5) A delegation or assignment under subsection (4) shall not prevent the Commander from exercising the duties, functions and powers in question in person.
(1) Officers of the rank of Lieutenant-Colonel and above shall be appointed by the President.
(2) Officers of the rank of Major and below shall be appointed by the Commander.
29. Functions of the Commander
The Commander shall—
(a) plan, direct and conduct all military operations as strategic military commander;
(b) command the Defence Force;
(c) be the principal military advisor to the President and Minister;
(d) report to the President and Minister on operational and administrative matters of the Defence Force;
(e) be responsible for implementing the deployment of members of the Defence Force as directed by the President;
(f) formulate military policy and strategy;
(g) ensure the effective utilisation of resources and the education, training and development of all members of the Defence Force; and
(h) perform any other function as may be assigned by the President, the Minister, the Defence Council or any other written law.
Officers and soldiers of the Defence Force shall stand with each other in order of rank and seniority or in such order of precedence as may be prescribed by the President.
31. Use and retention of rank on retirement
(1) Officers of the rank of Major and above who have retired from the Defence Force, may retain the use of their rank after they have so retired, but shall append the appellation "Retired" or "Rtd" whenever it is used in writing.
(2) A retired officer shall forfeit his or her rank and status—
(a) after conviction by a civil court where the said conviction results in a custodial sentence; or
(b) when it has been determined that the continued use of that rank by such person is likely to bring disrepute to the Defence Force.
(3) Notwithstanding subsections (1) and (2), a retired officer may request to resign his or her commission.
(4) If the President considers it expedient in the public interest, he or she may by order prohibit a person referred to in subsection (2) from purporting to be still holding such rank or status.
(5) A person who contravenes an order referred to in subsection (4) commits an offence and shall be triable by civilian court and liable to a fine not exceeding P2 000 or to a term of imprisonment not exceeding two years, or to both.
PART VI
Co-operation With Other Authorities (ss 32 - 33)
32. Co-operation with other authorities
The Defence Force shall—
(a) in the interest of national security, co-operate and work with other security organs in the discharge of its mandate;
(b) assist and co-operate with other authorities in situations of emergency or disaster; and
(c) on the orders of the President, be deployed to restore peace, law and order in any part of Botswana affected by unrest or instability.
33. Use of the Defence Force in support of the Police
(1) The Commander may, at the request of the Commissioner of Police, and with the consent of the President, authorise the use of any member or unit of the Defence Force in support of, or to give assistance to, the Botswana Police Service in the discharge of their functions under section 6 of the Police Act (Cap. 21:01).
(2) A member of the Defence Force acting pursuant to an authorisation under subsection (1) shall have and may exercise all the powers of a police officer of corresponding authority.
PART VII
Relations With Other Forces (s 34)
34. Powers of command of members of co-operating forces
(1) In so far as the powers of command depend on rank, a member of a military force from any country outside Botswana who is—
(a) acting with; or
(b) a member of a body of those forces which is acting with any body in the Defence Force shall have the same powers as a member of the Defence Force of corresponding rank, and for the purposes of sections 30 and 34(3),
any such member of the said forces shall be treated as if he or she were a member of the Defence Force of corresponding rank.
(2) If the whole or any part of the Defence Force is required to act with any other military, naval or air force the President may place the Defence Force or such part thereof under the command of the officer commanding such other force.
(3) Where any part of the Defence Force is acting in co-operation with any other force, the Commander or the officer commanding that part of the Defence Force may, in agreement with the officer commanding that other force, define the powers of command and the order or precedence of the officers and other ranks of the Defence Force in relation to the officers and other ranks of such other force.
PART VIII
Limitations of Fundamental Rights and Freedoms of Persons Subject to this Act (s 35)
35. Conditions for limitations of fundamental rights and freedoms
(1) Nothing contained in or done under the authority of this Act shall be held to be inconsistent with the fundamental rights and freedoms set out in Chapter II of the Constitution of Botswana if reasonably necessary and justified for purposes peculiar to military service to ensure—
(a) the defence and protection of the sovereignty and territorial integrity of the Republic of Botswana;
(b) the security and safety of members of the Defence Force;
(c) the training and readiness of members of the Defence Force;
(d) the good order and service discipline;
(e) the security and protection of information within the Defence Force;
(f) the interests of defence, national security, public safety, public order, public morality or public health;
(g) the protection of the rights and freedoms of other members including the right to observe and practice religion, belief, opinion without the unsolicited intervention of members of another religion;
(h) the protection of the reputations, rights and freedoms of other persons or the private persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts-martial;
(i) the technical administration or the technical operation of telecommunication, posts, wireless broadcasting, communication, internet, satellite communication or television; and
(j) the mandate of the Defence Force.
(2) Acts reasonably necessary and justified for purposes peculiar to military service include the imposition of limitations upon a person subject to this Act.
(3) Without derogating from the generality of subsection (2)—
(a) limitations reasonably necessary and justified for purposes peculiar to military service include limitations on a person subject to this Act with respect to—
(i) the right to reside at a location of their choice,
(ii) the right to unionise,
(iii) the right to demonstrate,
(iv) the right to picket,
(v) the right to petition public authorities on military matters, and
(vi) any such rights which may be determined to be prejudicial to the functioning, readiness and discipline of the Defence Force except for concerns properly directed to the Defence Council or through rightful authorities under the protections of the Whistleblowing Act (Act No. 9 of 2016); and
(b) the Defence Force shall be entitled, with respect to a person subject to this Act, to—
(i) inspect and search the person’s home or property,
(ii) seize property under a search referred to in paragraph (i),
(iii) demand personal information relating to the person’s family or private affairs, and
(iv) investigate or otherwise interfere with the privacy of the person’s communications.
(4) The limitations referred to in subsections (3)(a)(ii), (iii), (iv), (v) and (vi) shall not apply to joining or participation in the activities of professional associations by a person subject to this Act.
(5) A person subject to this Act shall not be regarded as having been deprived of his or her right to protection from slavery, servitude or forced labour if his or her labour is required in pursuance of training or military duties.
(6) A person subject to this Act shall not be regarded as having been deprived of his or her right to life if he or she dies as a result of a lawful execution of duty or any act of war.
PART IX
Enlistment, Terms of Service, etc. (ss 36 - 43)
(1) A member shall be enlisted in the Regular Force on such terms and conditions as may be prescribed.
(2) The President may make regulations, for the enlistment of members in the Regular Force.
(3) The regulations may—
(a) require the enlistment of members in the Regular Force to be undertaken by recruiting officers;
(b) appoint recruiting officers;
(c) prohibit the enlistment of members under the age of 18, but greater than the age of 17, without the consent of prescribed persons;
(d) deem a person, in prescribed circumstances, to have attained or not to have attained the age referred to in paragraph (c);
(e) determine the procedure for enlistment (including requiring a recruiting officer to attest the enlistment);
(f) determine approval for service of members who have enlisted;
(g) determine the validity of a member’s enlistment, including provision—
(i) as to when, how and on what basis the validity of a member’s enlistment may be challenged,
(ii) deeming a member, in prescribed circumstances, to have been validly enlisted,
(iii) conferring on a member a right to discharge in prescribed circumstances, or
(iv) as to the status of a member until the person is discharged.
(4) Where the regulations referred to in this section create an offence they may provide that the offence—
(a) is a service offence and is punishable by any punishment mentioned in accordance with the Act; or
(b) is triable by a civilian court in Botswana.
37. Terms and conditions of enlistment and service
(1) The President may by regulations or delegate his or her authority to the Minister, with respect to the terms and conditions of enlistment and service of members enlisting, or who have enlisted, in the Regular Force.
(2) The regulations may in particular make provisions for—
(a) specifying the duration of the term for which a member is enlisted (whether by reference to a number of years or another criterion or both);
(b) requiring any such term to be one of service with the Regular Force, or to be in part service with the Regular Force and in part service with the Reserve Force;
(c) enabling a member to end his or her service with the Regular Force at a prescribed time, or to transfer at a prescribed time to the Reserve Force;
(d) imposing a service obligation under certain circumstances;
(e) restricting a member, in consideration of the acceptance by him or her of any benefit or advantage, from exercising any right referred to in paragraph (c);
(f) enabling a member enlisted for a term of service of a prescribed description to be treated as if he or she had enlisted for a term of service of a different description;
(g) enabling a member to extend or reduce the term of his or her service (whether with the Regular Force or the Reserve Force, or both);
(h) enabling a member to continue in service after completion of the term of his or her service;
(i) enabling a member in the Reserve Force to re-enter service with the Regular Force;
(j) enabling a member to restrict his or her service to service in a particular area; or
(k) requiring a member who has restricted his or her service to service in a particular area to serve outside that area for a number of days in any year not exceeding a prescribed maximum.
(3) The exercise of any right conferred on a member by virtue of subsection (2) may be made subject to prescribed conditions.
(4) The President may by regulations make provision, enabling—
(a) a member of the Regular Force of or below the rank of Warrant Officer, or
(b) a member of the Reserve Force of or below the rank of Warrant Officer who is permanent on call-out under any provision of the Reserve Force Regulations,
to be transferred between units without his or her consent.
(5) Regulations under subsection (4) may in particular make provision for varying the terms and conditions of service of a member transferred between units.
38. Forfeiture of service due to desertion and absence without leave
(1) The President may by regulations make provision—
(a) with respect to the making of a confession by a member of the Regular Force that he is guilty of an offence under section 81;
(b) for the making of a determination as to whether a trial may be dispensed with in the case of a member who makes such a confession; and
(c) for the forfeiture of a period of service of such a member where a trial is so dispensed with.
(2) The President may by regulations make provision, for the forfeiture of a period of service of a member of the Regular Force who is convicted of an offence under section 81.
(3) Regulations under subsection (1) or (2) may include provision for enabling a determination to be made in prescribed circumstances restoring (in whole or in part) a forfeited period of service.
(4) The President may by regulations make provision with respect to—
(a) the issue of a certificate of absence for a member of the Regular Force absent without leave for more than a prescribed period; and
(b) the effects of such a certificate (in particular in connection with the pay and allowances of the member for whom it is issued).
39. Discharge, etc. from the Regular Force and transfer to the Reserve Force
(1) The President may by regulations make provision with respect to—
(a) the discharge of members of the Regular Force; and
(b) the transfer of such members to the Reserve Force.
(2) The regulations may in particular make provision with respect to—
(a) the convening of boards for administrative separations; and
(b) the status of a member who is entitled to be, but has not yet been, discharged or transferred to the Reserve Force.
(3) The regulations may in particular make provision conferring on a Warrant officer (other than an acting Warrant Officer) a right to be discharged—
(a) following the member’s reduction in rank; or
(b) following the member’s reduction in rank in prescribed circumstances.
(4) The regulations may also in particular make provision enabling—
(a) the discharge of a member from the Regular Force (including by virtue of subsection (3));
(b) the transfer of a member to the Reserve Force, to be postponed in prescribed circumstances; or
(c) the convening of boards for administrative separations.
40. Administrative reduction in rank
(1) The rank of a Warrant Officer or non-commissioned officer may be reduced only by an order made by that member’s commanding officer.
(2) Subject to subsection (3), an order of a commanding officer reducing the rank of a Warrant Officer or non-commissioned officer (hereinafter referred to as "an order reducing rank") may not be made without the permission of higher authority.
(3) The permission of higher authority is not required for an order reducing rank if—
(a) the member whose rank is to be reduced is a lance corporal; or
(b) the commanding officer making the order is of or above the rank of Brigadier.
(4) Nothing in this section applies to a reduction in rank by virtue of a sentence imposed pursuant to the court-martial.
(5) Nothing in this section applies in relation to the reversion of a member, otherwise than on account of his or her conduct, from his or her acting rank to his or her substantive rank.
41. Pay, allowances, entitlements and rewards
(1) The Defence Council shall make recommendations to the President with respect to pay, allowances, entitlements, discretionary payments, and awards or decorations for members of the Regular or Reserve Force.
(2) A provision made under this section may in particular—
(a) prescribe pay, allowances, entitlements, discretionary payments and awards or decorations;
(b) provide for the way in which pay, allowances, entitlements and discretionary payments are to be paid; or
(c) impose conditions or restrictions on the making of such payments, awards or decorations.
(3) Provision that may be made by virtue of subsection (2)(b) includes in particular provision authorising the making of a deduction from a payment to a member—
(a) for anything (including any service) supplied to him or her;
(b) in order to recover any overpayment or advance; or
(c) in order to reclaim any authorised payment.
(4) For the purposes of subsection (3)(c) a payment is authorised if—
(a) it was made on condition that it would or might be repayable in specified circumstances; and
(b) any such circumstance has occurred where the purpose of such payments has not been fulfilled in the discretion of the Defence Council.
(5) A provision under this section may not authorise the forfeiture of pay.
(6) Section 327 applies in relation to provisions under this section.
(7) Nothing in this section prevents provision as to rates of allowances from being made otherwise than under this section.
(1) An officer shall retire from the Force on attaining the age of 60 years provided that—
(a) an officer of the rank of Major General and above shall retire from the Force on attaining the age of 62 years; and
(b) military medical officers, lawyers and chaplains shall retire from the Force upon attaining the age of 65 years:
Provided that an officer of the rank of Brigadier and above may, at the officer’s own request, be permitted by the President, or at the request of the President, and with the officer’s consent, continue in the Force until such age, not exceeding the age of 65 years, as the President, considers necessary or desirable, bearing in mind the exigencies of the Force, the officer’s efficiency and experience and the difficulty of replacing him or her within a reasonable time.
(2) An officer may, at his or her own request, be permitted by the Commander, or at the request of the Commander, and with the officer’s consent, continue in the Force until such age, not exceeding an additional five years, as the Commander, considers necessary or desirable, bearing in mind the exigencies of the Force, the officer’s efficiency and experience and the difficulty of replacing him or her within a reasonable time.
(3) An officer who has attained the age of 45 years may, at the discretion of the President in the case of an officer of or above the rank of Lieutenant-Colonel, or of the Commander, in the case of any other officer, be required to retire from the Force.
(4) An officer shall be required to retire from the Force—
(a) on being given a one month’s notice, if the officer is found by a medical evaluation board and a physical evaluation board to be unfit for further service; or
(b) on being given one month’s notice in writing by the Commander, if—
(i) there is no establishment for him or her in the officer’s present rank, or
(ii) there are no reasonable future prospects of promotion.
(5) An officer shall have the right to retire on or after completing 20 years pensionable service, or on or after attaining the age of 45 years, by giving 6 months’ notice in writing to the Commander, of his or her intention to do so, and on repaying to the Government any amount which he or she is liable to repay to the Government under the Act:
Provided that—
(a) the President, in the case of officers of the rank of Major General and above or the Commander, in the case of any other officer may vary the period of notice as circumstances may require; and
(b) if such notice is given whilst the officer is on active service, or whilst he or she is under the orders of a superior office to hold himself or herself in readiness for such active service, the member’s retirement shall not take effect until a period of one month has elapsed from the date on which such active service is completed or on which such orders are rescinded.
(1) A soldier of the rank listed in the first column hereof shall retire from employment in the Force upon attaining the age specified in the second column in relation to the rank—
Rank | Retirement age |
Private | 45 years |
Lance Corporal | 47 years |
Corporal | 52 years |
Sergeant | 54 years |
Staff Sergeant | 56 years |
Warrant Officer Class II | 58 years |
Warrant Officer Class I | 60 years |
(2) Notwithstanding subsection (1), a soldier may—
(a) in such manner as may be prescribed and with the agreement of the Commander resign from the Force at an earlier age than 45 years or less than 20 years of service; or
(b) retire at any time on or after completing 20 years pensionable service or on or after attaining the age of 45 years, other than a soldier belonging to the rank of private, by giving six months’ notice in writing to the Commander, of his or her intention to do so:
Provided that—
(a) the Commander may vary the period of notice as circumstances may require; and
(b) if such notice is given whilst a solider is on active service, or whilst he or she is under the orders of a superior officer to hold himself or herself in readiness for such active service, the member’s retirement shall not take effect until a period of one month has elapsed from the date on which such active service is completed or on which such orders are rescinded.
(3) Notwithstanding subsection (1), a soldier may, at his or her own request, be permitted by the Commander, or at the request of the Commander, and with the soldier’s consent, continue in the Force until such age, not exceeding an additional four years, as the Commander, considers necessary or desirable, bearing in mind the exigencies of the Force, the soldier’s efficiency and experience and the difficulty of replacing him within a reasonable time.
PART X
Discipline and Trial and Punishment of Military Offences (ss 44 - 226)
Treachery, Cowardice and Offences arising out of Military Service (ss 44 - 66)
44. Persons subject to this Part
The following persons are subject to this Part—
(a) members of a Regular Force of the Defence Force, including—
(i) those awaiting discharge after expiration of their terms of enlistment,
(ii) inductees of the Defence Force from the time of their actual induction into the Defence Force, and
(iii) other persons lawfully called or ordered into, or to duty in or for training in, the Defence Force, from the dates when they are required by the terms of the call or order to obey it;
(b) members of the Volunteer Force;
(c) officer cadets;
(d) members who have retired from the Regular Force who are entitled to pay;
(e) retired members of the Reserve Force who are receiving hospitalisation in the Defence Force;
(f) members of the full time staff of the Reserve Force;
(g) persons in custody of the Defence Force serving a sentence imposed by the court-martial;
(h) prisoners of war and other persons in custody of the Defence Force; and
(i) any civilian personnel or contractors when accompanying the Defence Force during active or operational service.
45. Application of Act to civilians in support of or who accompany the Force in deployment or active service
(1) This Part shall apply, with the following modifications, to any person who accompanies the Defence Force on deployment or active service, who would otherwise not be subject to this Act.
(2) The modifications referred to in subsection (1) shall be as follows—
(a) the punishments which may be awarded by the court-martial shall include a fine, but shall not include any other punishment less than imprisonment;
(b) the punishment which may be awarded where a charge is dealt with summarily shall, in the case of any offence, be a fine not exceeding P5 000 but no other punishment;
(c) the following provision shall have effect in substitution for section 158, that is to say, that a person may be arrested by a provost officer, by any Warrant Officer or non-commissioned officer legally exercising authority under a provost officer or on the member’s behalf, or by order of any officer subject to this Act;
(d) where a charge is being dealt with summarily and it has been determined that the accused is guilty, a finding shall not be recorded until after the accused has been afforded an opportunity of electing to be tried by court-martial, and if the accused so elects a finding shall not be recorded but such steps shall be taken with a view to the charge being tried by court-martial as may be prescribed by Rules of Procedure;
(e) the provisions of this Act relating to the investigation of, and summary dealing with, offences, shall, except as otherwise expressly provided, apply as they apply to soldiers; and
(f) for the purposes of the provisions of this Act relating to the investigation of offences, the commanding officer of a civilian to whom this section applies shall be the officer for the time being commanding the unit or detachment in which that person is employed or which he or she accompanies.
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