CHAPTER 21:05
BOTSWANA DEFENCE FORCE
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
3. Provisions as to active service
PART II
Establishment of Defence Force
4. Establishment and maintenance of Defence Force
5. Employment of Defence Force
6. Employment of Defence Force outside Botswana
7. Overseas training
PART III
Defence Council
8. Establishment of Defence Council
PART IV
Command
9. Command of Defence Force
10. Command and precedence
11. Powers of command of members of co-operating forces
PART V
Appointment of Officers
12. Lieutenant-Colonel and above
13. Major and below
14. Posting and transfer of officers
15. Power to make regulations for this Part
PART VI
Enlistment and Termination of Service in the Regular Force
16. Recruiting officers
17. Enlistment
18. Terms of enlistment
19. Prolongation of service
20. Discharge
21. Transfer of Reserve Force
22. Postponement of discharge or transfer pending proceedings for offences, etc.
23. Discharge upon prescribed grounds
24. Restriction of reduction in rank of warrant officers and non-commissioned officers
25. Validity of attestation and enlistment
26. False answers in attestation papers
PART VII
Discipline and Trial and Punishment of Military Offences
Treachery, Cowardice and Offences arising out of Military Service
27. Aiding the enemy
28. Communication with the enemy
29. Cowardly behaviour
30. Offences against morale
31. Prisoner of war
32. Offences by or in relation to sentries, etc.
33. Looting
Mutiny and Insubordination
34. Mutiny
35. Failure to suppress mutiny
36. Insubordinate behaviour
37. Disobedience to particular orders
38. Obstruction of provost officers
39. Disobedience to standing orders
Desertion, Absence Without Leave, etc.
40. Desertion
41. Absence without leave
42. Assisting and concealing desertion and absence without leave
43. Falsely obtaining or prolonging leave
44. Failure to perform military duties
Malingering and Drunkenness
45. Malingering
46. Drunkenness
Offences relating to Property
47. Offences relating to public and service property
48. Offences in relation to property of members of Forces
49. Miscellaneous offences relating to property
Offences relating to Billeting
50. Billeting offences
Offences relating to, and by, Persons in Custody
51. Irregular arrest and confinement
52. Permitting escape, and unlawful release, of prisoners
53. Resistance to arrest
54. Escape from confinement
Offences in relation to Courts-martial
55. Offences in relation to courts-martial
56. False evidence and contradictory statements
Miscellaneous Offences
57. Injurious disclosures
58. Making of false statement on enlistment
59. Making of false documents
60. Scandalous conduct of an officer
61. Ill-treatment of officers or men of inferior rank
62. Disgraceful and discreditable conduct
63. False accusation, etc.
64. Attempts to commit military offences
65. Conduct to the prejudice of military discipline
Civil Offences
66. Civil offences
Punishments
67. Punishment of officers
68. Punishment of soldiers
69. Field punishment
Arrest
70. Power to arrest offenders
71. Provisions for avoiding delay after arrest
Investigation of, and Summary Dealing with, Charges
72. Investigation of charges by commanding officer
73. Charges to be dealt with summarily or by court-martial
74. Further proceedings on charges against n.c.o.'s and soldiers
75. Further proceedings on charges against officers and warrant officers
76. Dismissal of charges referred to Commander
77. Power of commanding officers to delegate powers
78. Limitation of powers of summary dealing with charges
Court-martial: General Provisions
79. Trial by, and powers of, court-martial
80. Officers having power to convene court-martial
81. Constitution of court-martial
82. Supplementary provisions as to constitution of courts-martial
83. Place of sitting of courts-martial and adjournment to other places
Court-martial: Provisions relating to Trials
84. Challenges by accused
85. Administration of oaths
86. Court-martial to sit in open court
87. Dissolution of court-martial
88. Decisions of court-martial
89. Finding and sentence
90. Power to convict of an offence other than that charged
91. Rules of evidence
92. Privilege of witnesses
93. Offences by civilians in relation to court-martial
94. Affirmations
Confirmation, Revision and Review of Proceedings of Court-martial
95. Confirmation of proceedings of court-martial
96. Petition against finding or sentence
97. Revision of findings of court-martial
98. Powers of Commander on confirmation
99. Approval of death sentence
100. Review of finding and sentence of court-martial
101. Reconsideration of sentences of imprisonment and detention
Review of Summary Findings and Awards
102. Review of summary findings and awards
Findings of Insanity
103. Provisions where accused found insane
Commencement, Suspension and Duration of Sentences
104. Commencement of sentences
105. Duration of sentences of imprisonment and detention
106. Suspension of sentences
107. Restriction on serving of sentences of detention in prisons
108. Special provisions as to civil prisons in Botswana
109. Special provisions as to carrying out or serving sentences outside Botswana
110. Country in which sentence of imprisonment or detention to be served
111. 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
112. Trial and punishment of offences under this Act notwithstanding offender ceasing to be subject thereto
113. Limitation of time for trial of offences under this Act
Relations between Military and Civil Courts and Finality of Trials
114. Powers of civil courts
115. Persons not to be tried under this Act for offences already disposed of
116. Resolution of conflicts of jurisdiction
117. Criminal proceedings against member of Defence Force
Enquiries
118. Boards of enquiry
119. Enquiries into absence
Miscellaneous Provisions
120. Restitution or compensation for theft, etc.
121. Judge advocate
122. Promulgation
123. Custody of proceedings of courts-martial and right of accused to copy thereof
124. Indemnity for prison officers, etc.
Rules of Procedure, etc.
125. Rules of procedure
126. Imprisonment and Detention Regulations
127. Board of Enquiry Rules
128. Miscellaneous regulations
Interpretation of Part VII
129. Interpretation of Part VII
PART VIII
Appeals
130. Appeal from court-martial
131. Appeal to Court of Appeal
132. Appeal on charges dealt with summarily
133. Person not to be tried again where conviction quashed
134. Removal of prisoners for purposes of this Part
135. Furnishing, on appeal, of documents relating to trial
136. Saving of powers of reviewing authorities
PART IX
Forfeitures and Deductions
137. Forfeitures and deductions: general provisions
138. Forfeiture of pay for absence from duty
139. Deductions for payment of civil penalties
140. Compensation for loss occasioned by wrongful act or negligence
141. Deductions for barrack damage
142. Remission of forfeitures, etc.
PART X
Governmental and General Provisions
Redress of Complaints
143. Complaints by officers
144. Complaints by soldiers
Exemptions for Officers and Soldiers
145. Exemption from service as assessor
146. Exemption from execution of property used for military purposes
Provisions relating to Deserters and Absentees without Leave
147. Arrest of deserters and absentees without leave
148. Proceedings before a civil court where persons suspected of illegal absence
149. Deserters and absentees without leave surrendering to police
150. Certificates of arrest or surrender of deserters and absentees
151. Duties of officers in charge of prisons and others to receive deserters and absentees
Offences relating to Military Matters Punishable by Civil Courts
152. Punishment for pretending to be a deserter
153. Punishment for procuring and assisting desertion
154. Punishment for obstructing officers or soldiers in execution of duty
155. Punishment for aiding malingering
156. Unlawful purchase, etc. of military stores
157. Illegal dealings in documents relating to pay, pensions, mobilisation, etc.
158. Unauthorised use of and dealing in decorations, etc.
Provisions as to Evidence
159. General provisions as to evidence
160. Proof of outcome of civil trial
161. Evidence of proceedings of court-martial
Miscellaneous Provisions
162. Temporary reception in civil custody of persons under escort
163. Avoidance of assignment of, or charge on, military pay, pensions, etc.
164. Power of certain officers to make statutory declarations
PART XI
Reserve Force
165. Composition
166. Discharge from Reserve Force
167. Reporting of Reserve Force
168. Embodiment
169. Postponement of discharge
170. Failure to attend on embodiment
171. Power to make regulations under this Part
PART XII
Application of Act and Supplementary Provisions
172. Persons subject to this Act
173. Application of Act to civilians
174. Application of Act to Reserve Force
175. Use of Defence Force in aid of civil power
176. P.M.U. members enlisted in Defence Force
177. Rewards and Fines Fund
178. Power to make regulations
179. Execution of orders, instruments, etc.
Schedule - Alternative Offences of which Accused may be Convicted by Court-martial
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.
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 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: 15th April, 1977]
PART I
Preliminary (ss 1-3)
This Act may be cited as the Botswana Defence Force Act.
(1) In this Act, unless the context otherwise requires—
"active service" shall be construed in accordance with section 3;
"aircraft" means any machine for flying, whether propelled by mechanical means or not, and includes any description of balloon;
"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;
"appropriate superior authority", in relation to an officer charged with an offence, means—
(a) in the case of officers of the rank of Colonel, any officer of the rank of Mayor-General and above;
(b) in the case of officers of the rank of Lieutenant-Colonel, an officer of the rank of Brigadier;
(c) in the case of officers of the rank of Major and Captain, any officer not below the rank of Colonel;
(d) in the case of officers of the rank of Lieutenant and below and warrant officers, any officer not below the rank of Lieutenant-Colonel who is not the commanding officer of the officer charged;
[8 of 1997, s. 2.]
"arrest" includes open arrest;
"before the enemy", in relation to a person, means that he is in action against the enemy or about to go into action against the enemy, or is under attack or threat of imminent attack by the enemy;
"Board of Enquiry Rules" means rules made by the President under section 127;
"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 66(2);
"Commander" means the person appointed under section 9;
"commanding officer", 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 66(2);
"court-martial" means a court-martial under this Act;
"damage" includes destruction, and references to damaging shall be construed accordingly;
"date of attestation", in relation to any person, means the date on which he is attested in accordance with the provisions of regulations made under this Act;
"decoration" includes medal, medal ribbon, clasp and good-conduct badge;
"Defence Council" means the Defence Council established under Part III;
"Defence Force" means the Botswana Defence Force established by section 4;
"desertion" shall be construed in accordance with section 40;
"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 his disciplinary powers as commanding officer over it;
"enemy" includes all persons engaged in armed operations against the Defence Force or any forces co-operating therewith and also includes all armed mutineers, armed rebels and armed rioters;
"field rank" means the rank of Major and any higher rank, and "field officer" shall be construed accordingly;
"Imprisonment and Detention Regulations" means regulations made by the President under section 126;
"local rank" means a rank to which an officer or a member of the Force may be appointed, higher than his substantive rank, which is neither a substantive rank nor an acting rank, which does not entitle him to any increase in salary 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;
[12 of 1994, s. 2.]
"provost officer" means a provost marshall or officer subject to this Act appointed to exercise the functions conferred by or under this Act on provost officers;
"public property" means any property belonging to any department of the Government or held for the purposes of any such department;
"rank" includes substantive rank, acting rank and local rank;
[12 of 1994, s. 2.]
"recruiting officer" means a person authorised as such under section 16;
"Regular Force" means the Regular Force of the Defence Force referred to in section 4(1);
"Reserve Force" means the Defence Force Reserve referred to in section 4(1);
"Rules of Procedure" means the Rules of Procedure made by the President under section 125;
"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;
"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;
"unit" means—
(a) any independent portion of the Defence Force which is not higher in the organisation of the Defence Force than a battalion or any equivalent formation of troops; or
(b) any other body of the Defence Force declared to be a unit.
(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. Provisions as to active service
(1) In this Act the expression "on active service", in relation to any unit, means that it is engaged in operations against the enemy, and, in relation to a person, means that he is serving in or with a unit which is on active service.
(2) 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 an active service, he 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.
(3) Where it appears to the President necessary in the public interest that the period specified in a declaration under subsection (2) should be prolonged, or, if previously prolonged under this section, should be further prolonged, he 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.
(4) If at 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 may declare that from the coming into operation of the declaration the unit shall cease to be deemed to be on active service.
(5) Any declaration under this section shall be by proclamation published in the Gazette.
PART II
Establishment of Defence Force (ss 4-7)
4. Establishment and maintenance of Defence Force
(1) There shall be established and maintained in Botswana a force to be known as the "Botswana Defence Force", which shall consist of—
(a) the Regular Force of the Defence Force; and
(b) the Defence Force Reserve,
and may include a Volunteer Force of the Defence Force.
(2) Such components of the Defence Force referred to in subsection (1) may be formed into units or other military bodies as the President may from time to time determine.
5. Employment of Defence Force
The Defence Force shall be charged with the defence of Botswana and with such other duties as may from time to time be determined by the President.
6. Employment of Defence Force outside Botswana
The President may at any time order that the whole or any part of the Defence Force shall be employed out of or beyond Botswana.
(1) The President may order that any officer or soldier of the Regular Force, or, with his consent, any officer or soldier of the Defence Force Reserve, shall proceed to any place outside Botswana for the purpose of undergoing instruction or training or for duty or employment.
(2) 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 being attached to the armed forces of that country.
PART III
Defence Council (s 8)
8. Establishment of Defence Council
(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 may think fit to the Commander.
(3) The Defence Council shall consist of such persons as the President shall, from time to time, determine, together with the Commander, who shall be an ex-officio member.
PART IV
Command (ss 9-11)
(1) The President shall appoint an officer to be Commander of the Defence Force and the command of the Defence Force shall vest in the person so appointed.
(2) The Commander shall have such rank and title and fulfil such duties and functions as may be determined by the President.
(3) The Commander may delegate to any officer under his command such duties, functions and powers, other than such power of delegation, as he may from time to time deem expedient.
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 Defence Council.
11. Powers of command of members of co-operating forces
(1) Insofar 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 36 and 70, any such member of the said forces shall be treated as if he 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 V
Appointment of Officers (ss 12-15)
12. Lieutenant-Colonel and above
Officers of the rank of Lieutenant-Colonel and above shall be appointed by the President.
Officers of the rank of Major and below shall be appointed by the Commander.
14. Posting and transfer of officers
(1) Every officer upon being appointed shall be posted to one of the components of the Defence Force specified in section 4(1).
(2) The President may, upon such terms and conditions as may be prescribed, transfer any officer between the Regular Force and the Reserve Force.
15. Power to make regulations for this Part
Subject to the provisions of this Act, the President may make regulations for the better carrying out of this Part and, without prejudice to the generality of the foregoing, such regulations may make provision with respect to the appointment of officers, their terms of service, transfer, promotion, retirement, resignation, removal from office, and such other matters concerning officers as may seem necessary.
PART VI
Enlistment and Termination of Service in the Regular Force (ss 16-26)
Any person authorised in that behalf by regulations, in this Act referred to as a "recruiting officer", may enlist recruits in the Regular Force in the prescribed manner.
(1) A person offering to enlist in the Regular Force shall be given a notice in the prescribed form setting out the questions to be answered on attestation and stating the general conditions of the engagement to be entered into by him, and a recruiting officer shall not enlist any person in the Regular Force unless satisfied by that person that he has been given such a notice, understands it and wishes to be enlisted.
(2) A recruiting officer shall not enlist a person under the apparent age of 18 years.
18. Terms of enlistment (i) detention for a period not exceeding 45 days, or, if the accused is on active service, field punishment for a period not exceeding 45 days,
[8 of 1997, s. 2.]
(iii) severe reprimand or reprimand,
[8 of 1997, s. 2.]
(iv) where the offence has occasioned any expense, loss or damage, stoppages,
[8 of 1997, s. 2.]
(v) admonition;
[8 of 1997, s. 2.]
(b) if the accused is a private soldier—
<CS:"Hidden - Grey - 8_2"> (i) detention for a period not exceeding 45 days, or, if the accused is on active service, field punishment for a period not exceeding 45 days;
[S.I. 57/2006.]
(ii) a fine of a sum not exceeding the equivalent of 45 days' pay;
(iii) severe reprimand or reprimand;
(iv) where the offence has occasioned any expense, loss or damage, stoppages;
(v) confinement to barracks for a period not exceeding 14 days;
(vi) extra guards or pickets;
(vii) admonition.
(4) Where the accused is an acting warrant officer or an acting non-commissioned officer, and the commanding officer finds him guilty, the commanding officer may, if he awards no other punishment or no other punishment except stoppages, order the accused to revert to his permanent rank or to assume an acting rank lower than that held by him but higher than his permanent rank.
(5) Notwithstanding anything in subsection (3) or (4) where the accused is a non-commissioned officer and the commanding officer finds him guilty, the commanding officer may, if he awards no other punishment or no other punishment except stoppages, order the accused to be reduced to a lower rank than his substantive rank or to forfeiture of seniority in the prescribed manner:
Provided that any order reducing the accused in rank or to forfeiture of seniority shall not take effect until the finding and order have been confirmed by the Commander.
(6) No fine or severe reprimand or reprimand, confinement to barracks, extra guards or pickets, or admonition shall be awarded for an offence for which detention is awarded.
(7) A fine shall not be awarded for an offence for which stoppages have been awarded.
(8) ...
[4 of 2005, s. 2.]
(9) Where a charge is one which can be dealt with summarily, but the commanding officer has taken steps with a view to its being tried by court-martial, the Commander may refer the charge back to the commanding officer to be dealt with summarily, and on any such reference subsections (3), (4), (5), (6) and (7) shall apply as if the commanding officer had originally been of the opinion that the charge should be dealt with summarily.
[4 of 2005, s. 2.]
75. Further proceedings on charges against officers and warrant officers
(1) After investigating a charge against an officer or warrant officer, the commanding officer shall, unless he has dismissed the charge, submit it in the prescribed manner to the Commander, who shall determine how the charge is to be proceeded with in accordance with the two next subsections following.
(2) If the charge is one which can be dealt with summarily, it may be so dealt with by the appropriate superior authority nominated by the Commander.
(3) If the charge is not one which can be dealt with summarily or the charge is one which can be dealt with summarily but the Commander is of the opinion that it should not be so dealt with, the prescribed steps shall be taken with a view to its being tried—
(a) by the High Court in the case of officers of the rank of Brigadier and above; or
[8 of 1997, s. 2.]
(b) by court-martial in any other case.
(4) Where the charge is dealt with summarily by the appropriate superior authority nominated by the Commander, he shall investigate the charge in the prescribed manner and determine whether or not the accused is guilty of the charge, and accordingly dismiss the charge or record a finding of guilty:
Provided that if in the course of investigating the charge the appropriate superior authority nominated by the Commander determines that it is desirable that the charge be tried by court-martial, the prescribed steps shall be taken with a view to its being so tried.
(5) If the appropriate superior authority nominated by the Commander records a finding of guilty, he may award one or more of the following punishments—
(a) dismissal from the Defence Force;
(b) reduction in rank to a rank lower than his substantive rank, in both cases to take effect only upon confirmation by the relevant authority referred to in section 102;
(c) forfeiture in the prescribed manner of seniority of rank;
(d) a fine of a sum not exceeding the equivalent of 45 days' pay;
[4 of 2005, s. 2.]
(e) where the offence has occasioned any expense, loss or damage, stoppages,
except that he may not award both reduction in rank or forfeiture of seniority and a fine.
(6) Notwithstanding the provisions of subsection (4), where the appropriate superior authority nominated by the Commander has determined that the accused is guilty and if the charge is dealt with summarliy will award dismissal from the Defence Force, the appropriate superior authority nominated by the Commander shall not record a finding until after affording the accused an opportunity of electing to be tried by court-martial, and, if the accused so elects, the appropriate superior authority nominated by the Commander shall not record a finding but shall take the prescribed steps with a view to the charge being tried by court-martial.
[4 of 2005, s. 3.]
76. Dismissal of charges referred to Commander
(1) Notwithstanding sections 74 and 75, where a charge—
(a) has been referred to the Commander with a view to its being tried by court-martial; or
(b) has been referred to the Commander for determination of how it is to be proceeded with,
he may, subject to this section, refer the charge back to the commanding officer of the accused with a direction that it shall be dismissed, and in any such case the commanding officer shall dismiss the charge.
(2) The reference back of a charge in pursuance of this section shall be without prejudice to the preferring of another charge if the commanding officer thinks fit.
77. Power of commanding officers to delegate powers
Regulations made by the President under this Part may confer on commanding officers power to delegate the powers of commanding officers, in such cases and to such extent and to such officer or class of officers as may be specified in the regulations.
78. Limitation of powers of summary dealing with charges
(1) The charges which may be dealt with summarily by a commanding officer, and the charges which may be dealt with summarily by the Commander, shall be such as may be specified by regulations made by the President.
(2) In such cases as may be specified in that behalf by regulations made by the President, the powers of a commanding officer to award punishment shall be subject to such limitations as may be so specified.
Court-martial: General Provisions (ss 79-83)
79. Trial by, and powers of, court-martial
Subject to this Act, a court-martial under this Act shall have power to try any person subject to this Act for any offence which under this Act is triable by court-martial and to award for any such offence any punishment authorised by this Act for that offence.
80. Officers having power to convene court-martial
(1) A court-martial may be convened by the Commander or by any officer not below field rank authorised by the Commander to convene courts-martial.
(2) Any authorisation under subsection (1) to convene courts-martial—
(a) may be made subject to restrictions, reservations, exceptions or conditions;
(b) may be addressed to officers by name or by designation of their offices, and may be issued or given to a named or designated officer, to a named or designated officer and to the person for the time being performing the duties of his office, to a named or designated officer and his successors in that office or to a named or designated officer and such person and successors; and
(c) may be varied or may be revoked either wholly or in part by the officer by whom it is given or his successor in office.
81. Constitution of court-martial
(1) A court-martial shall consist of the presiding officer and not less than two other officers as members:
Provided that a court-martial shall consist of the presiding officer and not less than four other officers as members if the only punishment or the maximum punishment which can be awarded in respect of the charge before the court is death.
(2) An officer shall not be appointed to be the presiding officer or a member of a court-martial unless he belongs to the Defence Force and has been an officer in the Defence Force for a period of not less than two years or for periods amounting in the aggregate to not less than two years.
(3) Not less than two of the members of a court-martial shall be of a rank lower than that of captain.
(4) The presiding officer of a court-martial shall be appointed by order of the convening officer and shall not be under field rank unless in the opinion of the convening officer an officer of field rank having suitable qualifications is not, with due regard to the exigencies of the service, available; and in any event the presiding officer of a court-martial shall not be under the rank of captain.
(5) The members of a court-martial shall be appointed by order of the convening officer or in such other manner as may be prescribed.
82. Supplementary provisions as to constitution of courts-martial
(1) The officer who convenes a court-martial shall not be a member of that court-martial.
(2) An officer who, at any time between the date on which the accused was charged with the offence and the date of the trial, has been the commanding officer of the accused, and any other officer who has investigated the charge against the accused, or who has held, or has acted as one of the persons holding, an enquiry into matters relating to the subject matter of the charge against the accused, shall not be presiding officer or sit as a member of the court-martial or act as judge advocate at such a court-martial.
(3) Where the officer convening a court-martial appoints a captain to be presiding officer, being of the opinion that a field officer having suitable qualifications is not, with due regard to the exigencies of the service, available, the order convening the court-martial shall contain a statement of such opinion, and that statement shall be conclusive.
83. Place of sitting of courts-martial and adjournment to other places
(1) Subject to this section, a court-martial shall sit at such place (whether within or without Botswana) as may be specified in the order convening the court.
(2) A court-martial sitting at any place shall, if the convening officer directs it to sit at some other place, and may without any such direction if it appears to the court requisite in the interests of justice to sit at some other place, adjourn for the purpose of sitting at that other place.
Court-martial: Provisions relating to Trials (ss 84-94)
(1) An accused about to be tried by court-martial shall be entitled to object, on any reasonable grounds, to any member of the court, whether appointed originally or in lieu of another officer.
(2) For the purpose of enabling the accused to avail himself of the right conferred by subsection (1), the names of the members of the court shall be read over in the presence of the accused before they are sworn, and he shall be asked whether or not he objects to any of those officers.
(3) Every objection made by the accused to any officer shall be considered by the other officers appointed members of the court.
(4) If objection is made to the presiding officer, and not less than one-third of the other members of the court allow it, the court shall adjourn and the convening officer shall appoint another presiding officer.
(5) If objection is made to a member of the court other than the presiding officer, and not less than one-half of the other members allow it, the member objected to shall retire and the vacancy may, and if otherwise the number of members would be reduced to below the legal minimum shall, be filled in the prescribed manner by another officer.
(1) An oath shall be administered to every member of a court-martial and to any person in attendance on a court-martial as judge advocate, officer under instruction, shorthand writer or interpreter.
(2) Every witness before a court-martial shall be examined on oath:
Provided that where any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if in the opinion of the court he is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth, so however that, where the evidence is given on behalf of the prosecution, the accused shall not be liable to be convicted unless it is corroborated by some other material evidence in support thereof implicating the accused.
(3) An oath required to be administered under this section shall be in the prescribed form and shall be administered at the prescribed time by the prescribed person and in the prescribed manner.
86. Court-martial to sit in open court
(1) Subject to this section, a court-martial shall sit in open court and in the presence of the accused.
(2) Nothing in subsection (1) shall affect the power of a court-martial to sit in camera on the ground that it is necessary or expedient in the interests of the administration of justice to do so; and without prejudice to that power a court-martial may order that, subject to any exceptions the court may specify, the public shall be excluded from all or any part of the proceedings of the court if it appears to the court that any evidence to be given or statement to be made in the course of the proceedings or that part, as the case may be, might otherwise lead to the disclosure of any information which would or might be directly or indirectly useful to an enemy.
(3) A court-martial shall sit in closed court while deliberating on its finding or sentence on any charge.
(4) A court-martial may sit in closed court on any other deliberation amongst the members.
(5) Where a court-martial sits in closed court no person shall be present except the members of the court and such other persons as may be prescribed.
87. Dissolution of court-martial
(1) Where, whether before or after the commencement of the trial, it appears to the convening officer necessary or expedient in the interests of the administration of justice that a court-martial should be dissolved, the convening officer may by order dissolve the court-martial.
(2) Without prejudice to the generality of subsection (1), if after the commencement of the trial the number of the members of a court-martial is for any reason reduced to below the legal minimum, it shall be dissolved.
(3) If after the commencement of the trial the presiding officer is unable to attend and the court is not reduced below the legal minimum, then, if the senior member of the court is of the rank of captain or is of higher rank, the convening officer may appoint him presiding officer and the trial shall proceed accordingly; but if he is not, the court shall be dissolved.
(4) Without prejudice to the generality of subsection (1), if after the commencement of the trial it is represented to the convening officer that owing to the sickness or other incapacity of the accused it is impracticable having regard to all the circumstances to continue the trial within a reasonable time, the convening officer may dissolve the court.
(5) Where a court-martial is dissolved under the foregoing provisions, the accused may be tried by another court-martial.
88. Decisions of court-martial
(1) Subject to this section, every question to be determined on a trial by court-martial shall be determined by a majority of votes of the members of the court.
(2) In the case of an equality of votes on the finding, the court shall acquit the accused.
(3) A finding of guilty where the only punishment which the court can award is death shall not have effect unless it is reached with the concurrence of all the members of the court, and where on such a finding being come to by the majority of the members there is no such concurrence, the court shall be dissolved and the accused may be tried by another court.
(4) Where the accused is found guilty and the court has power to sentence him either to death or to some less punishment, sentence of death shall not be passed without the concurrence of all the members of the court.
(5) In the case of an equality of votes on the sentence, or on any question arising after the commencement of a trial, except the finding, the presiding officer shall have a second or casting vote.
(1) Without prejudice to section 86, the finding of a court-martial on each charge shall be announced in open court.
(2) Any finding of guilty shall be, and be announced as being, subject to confirmation.
(3) Any sentence of a court-martial, together with any recommendation to mercy, shall be announced in open court and a sentence of a court-martial shall be, and be announced as being, subject to confirmation.
90. Power to convict of an offence other than that charged
(1) An accused charged before a court-martial with an offence under this Act may, on failure of proof of the offence having been committed under circumstances involving a higher degree of punishment, be found guilty of the offence as having been committed under circumstances involving a less degree of punishment.
(2) An accused charged before a court-martial with any offence may be found guilty of attempting to commit that offence.
(3) An accused charged before a court-martial with attempting to commit an offence may be convicted on that charge notwithstanding that it is proved that he actually committed that offence.
(4) Where an accused is charged before a court-martial under section 66 in respect of attempting to commit a civil offence, he may be convicted on that charge notwithstanding that it is proved that he actually committed the civil offence.
(5) Where an accused is charged before a court-martial with an offence against section 66 and the corresponding civil offence is one in proceedings for which, if he had been tried by a civil court for committing the offence in Botswana, he might have been found guilty of another civil offence, then, if the court finds that he has committed that other civil offence, he may be convicted of an offence against section 66 in respect of the commission of that other civil offence.
(6) An accused charged before a court-martial with an offence specified in the first column of the Schedule may be found guilty of an offence specified in relation thereto in the second column of the said Schedule.
(1) Subject to this Act, the rules as to the admissibility of evidence to be observed in proceedings before courts-martial shall be the same as those observed in civil courts in Botswana, and no person shall be required in proceedings before a court-martial to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings before a civil court in Botswana.
(2) Notwithstanding anything in subsection (1), a statutory declaration shall, in a trial by court-martial, be admissible as evidence of the facts stated in the declaration in a case where, and to the extent to which, oral evidence to the like effect would be admissible in that trial:
Provided that a statutory declaration shall not be admitted in evidence in any such trial on behalf either of the prosecution or of the defence—
(i) where the declaration is put forward on behalf of the prosecution, unless a copy of the declaration has, not less than seven days before the commencement of the trial, been served on the accused,
(ii) where the declaration is put forward on behalf of the defence, unless a copy of the declaration has, not less than seven days before the commencement of the trial, been served on the commanding officer of the accused, or the commanding officer of the accused has given his agreement in writing to its admission,
(iii) in any case, if, not later than three days before the commencement of the trial or within such further time as the court-martial may in special circumstances allow, the accused or, as the case may be, the commanding officer of the accused serves a notice in the prescribed form on the commanding officer or accused requiring that oral evidence shall be given in lieu of the declaration,
(iv) in any case, if the court-martial is of the opinion that it is desirable in the interests of justice that oral evidence should be given in lieu of the declaration and declares that it is of that opinion.
(3) A court-martial shall take judicial notice of all matters of notoriety including all matters within the general service knowledge of the court, and of all other matters of which judicial notice would be taken in a civil court in Botswana.
A witness before a court-martial or any other person whose duty it is to attend on or before the court shall be entitled to the same immunities and privileges as a witness before the High Court.
93. Offences by civilians in relation to court-martial
Where in Botswana any person not subject to this Act—
(a) having been duly summoned to attend as a witness before a court-martial, fails to comply with the summons;
(b) refuses to swear an oath when duly required by a court-martial to do so;
(c) refuses to produce any document in his custody or under his control which a court-martial has lawfully required him to produce;
(d) when a witness, refuses to answer any question which a court-martial has lawfully required him to answer;
(e) wilfully insults any person, being a member of a court-martial or a witness or any other person whose duty it is to attend on or before the court, while that person is acting as a member thereof or is so attending, or wilfully insults any such person as aforesaid while that person is going to or returning from the proceedings of the court;
(f) wilfully interrupts the proceedings of a court-martial or otherwise misbehaves before the court; or
(g) does any other thing which would, if the court-martial had been a court of law having power to commit for contempt, have been in contempt of that court,
the presiding officer of the court-martial may certify the offence of that person under his hand to the High Court, and the High Court may thereupon enquire into the alleged offence and, after hearing any witnesses who may be produced against or on behalf of the person charged with the offence, and after hearing any statement which may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the High Court.
(1) If—
(a) a person required by virtue of this Act to take an oath for the purposes of proceedings before a court-martial objects to be sworn, and states as the ground of his objection either that he has no religious belief or that the taking of an oath is contrary to his religious belief; or
(b) it is not reasonably practicable to administer an oath to such a person in the manner appropriate to his religious belief,
he shall be permitted to make a solemn affirmation in the prescribed form instead of taking an oath.
(2) A person permitted under this section to make his solemn affirmation shall thereafter be required to do so, and for the purposes of this section "reasonably practicable" means reasonably practicable without inconvenience or delay.
Confirmation, Revision and Review of Proceedings of Court-martial (ss 95-101)
95. Confirmation of proceedings of court-martial
(1) Where a court-martial finds the accused guilty on any charge, the record of the proceedings of the court-martial shall be transmitted to the Commander for confirmation of the finding and sentence of the court on that charge.
(2) A finding of guilty or sentence of a court-martial shall not be treated as a finding or sentence of the court until confirmed:
Provided that this subsection shall not affect the keeping of the accused in custody pending confirmation or the operation of sections 96 and 97 or the provisions of this Act as to confirmation or approval.
96. Petition against finding or sentence
At any time after a court-martial has sentenced the accused, but not later than the prescribed time after confirmation is completed, the accused may in the prescribed manner present a petition against the finding or sentence or both.
97. Revision of findings of court-martial
(1) The Commander may direct that a court-martial shall revise any finding of guilty come to by the court in any case where it appears to him—
(a) that the finding was against the weight of evidence; or
(b) that some question of law determined at the trial and relevant to the finding was wrongly determined.
(2) Any such direction shall be accompanied by the necessary directions for the reassembly of the court, and shall contain a statement of the reasons for the direction.
(3) On any revision of a finding the court shall reconsider the finding, and (unless the court adheres thereto) may substitute therefor either a finding of not guilty or any other finding to which the court could originally have come at the trial in lieu of the finding under revision.
(4) On any such revision the court shall not have power to receive further evidence.
(5) Where on any such revision the court either adheres to the original finding or substitutes therefor a finding of guilty of another offence, or of the same offence in different circumstances, the court may substitute a different sentence for the original sentence:
Provided that the court shall not have power to substitute a sentence of a punishment greater than the punishment or greatest of the punishments awarded by the original sentence, or to substitute a sentence which in the opinion of the court is more severe than the original sentence.
(6) The Commander shall not have power to direct the revision of any substituted finding come to by the court on a previous direction of the Commander, or the revision of the original finding if adhered to by the court on such a previous direction; but except as aforesaid this Act shall apply to the proceedings of the court on any such revision as it applies to its deliberations on the original finding or sentence, and any substituted finding or sentence shall be treated for all purposes as an original finding or sentence of the court:
Provided that the decision of the court on the revision shall not be required to be announced in open court.
98. Powers of Commander on confirmation
(1) Subject to section 97 and to the following provisions of this section, the Commander shall deal with the finding or sentence of a court-martial either by withholding confirmation, if of the opinion that the finding of the court is unreasonable or cannot be supported having regard to the evidence or involves a wrong decision on a question of law or that, on any ground, there was a miscarriage of justice, or by confirming the finding or sentence or referring the finding or sentence, or both, for confirmation to the President.
(2) in lieu of withholding confirmation of the finding of a court-martial, the Commander may, if—
(a) some other finding of guilty could have been validly made by the court-martial on the charge before it; and
(b) he is of opinion that the court-martial must have been satisfied of the facts necessary to justify that other finding,
substitute that other finding, and if he does so he shall consider in what manner, if at all, the powers conferred by subsection (4) should be exercised.
(3) Where it appears to the Commander that a sentence of a court-martial is invalid, he may, in lieu of withholding confirmation of the sentence, substitute therefor a sentence of any punishment or punishments which could have been awarded by the court, not being greater than the punishment or greatest of the punishments awarded by the court and not in his opinion more severe than that punishment or those punishments.
(4) In confirming the sentence of a court-martial, the Commander may—
(a) remit in whole or in part any punishment awarded by the court; or
(b) commute any such punishment for one or more punishment or punishments provided by this Act, being less than the punishment commuted.
(5) In confirming any sentence, the Commander may postpone the carrying out of the sentence for such time as seems expedient, and the Commander may extend or terminate any postponement ordered under this subsection.
(6) A finding or sentence substituted by the Commander, or any sentence having effect after the Commander has remitted or commuted punishment, shall be treated for all purposes as a finding or sentence of the court duly confirmed.
(7) The confirmation of a finding or sentence shall not be deemed to be completed until the finding or sentence has been promulgated; and, in the event of any such substitution, remission or commutation, the finding or sentence shall be promulgated as it has effect after the substitution, remission or commutation.
(8) Where the Commander determines to withhold confirmation, the determination shall be promulgated and shall have effect as from the promulgation thereof.
99. Approval of death sentence
A sentence of death shall not be carried into effect unless it has been approved by the President.
100. Review of finding and sentence of court-martial
(1) A finding or sentence which has been confirmed may at any time be reviewed by the President and if, after confirmation of a finding or sentence, a petition is duly presented under section 96 against the finding or sentence, then, subject to this section, the finding or sentence shall be so reviewed as soon as may be after the presentation of the petition and after consideration of the matters alleged therein.
(2) If an application for leave to appeal is received by the Registrar of the High Court under Part VIII, so much of subsection (1) as requires the review of a finding or sentence against which a petition has been presented shall thereupon cease to apply to the finding to which the application for leave to appeal relates and the sentence passed in consequence of that finding.
(3) On a review under this section the President may—
(a) insofar as the review is of a finding, quash the finding, and, if the sentence relates only to the finding quashed, the sentence;
(b) insofar as the review is of a sentence, quash the sentence; or
(c) in any case, exercise the like powers of substituting findings, substituting valid for invalid sentences and remitting or commuting a punishment as are conferred on the Commander by section 98(2), (3) and (4),
and any substituted finding or sentence, or sentence having effect after the remission or commutation of punishment, shall be treated for all purposes as a finding or sentence of the court duly confirmed.
(4) Where the President exercises any of the powers conferred by subsection (3), the determination shall be promulgated and shall have effect as from the promulgation thereof.
101. Reconsideration of sentences of imprisonment and detention
(1) Sentences of imprisonment and detention passed by courts-martial may be reconsidered by the Commander, and if on any such reconsideration it appears that the conduct of the offender since his conviction has been such as to justify remission of the sentence, whether in whole or in part, it shall be remitted accordingly.
(2) The power to reconsider a sentence may be exercised at any time after confirmation, and where after the review a sentence remains effective it shall be reconsidered at intervals of six months:
Provided that delay in complying with this subsection shall not invalidate the sentence.
Review of Summary Findings and Awards (s 102)
102. Review of summary findings and awards
(1) Where a charge has been dealt with summarily, otherwise than by the dismissal thereof, the authority hereinafter mentioned may at any time review the finding or award.
(2) The said authority is—
(a) the Commander; or
(b) any officer appointed by the Commander for the purposes of this section, who shall be superior in command to the officer who dealt summarily with the charge.
(3) Where on a review under this section it appears to the said authority expedient to do so by reason of any mistake of law in the proceedings on the summary dealing with the charge or of anything occurring in those proceedings which in the opinion of the authority involved substantial injustice to the accused, the authority may quash the finding.
(4) If a finding in any proceedings is quashed under subsection (3) and the award made in those proceedings relates only to the finding quashed, the authority shall also quash the award; and if the award relates also to any other finding and it appears to the authority that the award was not warranted by this Act in respect of that other finding, the authority may vary the award by substituting such punishment or punishments as the authority may think proper, being a punishment or punishments which could have been included in the original award in relation to that other finding, and not being in the opinion of the authority more severe than the punishment or punishments included in the original award.
(5) Where on a review under this section it appears to the said authority that a punishment awarded was invalid, or too severe, or (where the award included two or more punishments) that those punishments or some of them could not validly have been awarded in combination or are, taken together, too severe, the authority may vary the award by substituting such punishment or punishments as the authority may think proper, being a punishment or punishments which could have been included in the original award and not being in the opinion of the authority more severe than the punishment or punishments included in the original award.
(6) Without prejudice to the preceding provisions of this section, where on a review under this section it appears to the said authority that a punishment awarded was too lenient the authority may vary the award by substituting such punishment as he may deem appropriate in the circumstances.
Findings of Insanity (s 103)
103. Provisions where accused found insane
(1) Where, on the trial of a person by court-martial, it appears to the court that the accused is by reason of insanity unfit to stand his trial, the court shall so find; and if the finding is confirmed in accordance with the following provisions the accused shall be kept in custody in such manner as the Commander may determine until the directions of the President are known or until any earlier time at which the accused is fit to stand his trial.
(2) Where, on the trial of a person by court-martial, it appears to the court that the evidence is such as, apart from any question of insanity, to support a finding that the accused was guilty of any offence, but at the time of the acts or omissions constituting that offence the accused was insane, the court shall find that the accused was guilty of that offence but was insane at the said time, and thereupon the accused shall be kept in custody in such manner as the Commander may determine until the directions of the President are known.
(3) In the case of any such findings, the President may give orders for the safe custody of the accused during his pleasure in such place and in such manner as the President thinks fit.
(4) A finding under subsection (1) shall not have effect unless the finding has been confirmed by the Commander and has been promulgated.
(5) Where the court or the Commander comes to or substitutes a finding of guilty but insane the Commander or, as the case may be, the President shall not have power to substitute for that finding a finding of guilty, but except that the provisions of this Act as to revision, confirmation and review (and in particular the provisions of this Act which confer power to substitute for any finding any other finding which could have been come to by the court-martial in question) shall apply in relation to such findings as are provided for by subsection (2) as those provisions apply in relation to other findings of guilty.
Commencement, Suspension and Duration of Sentences (ss 104-111)
104. Commencement of sentences
(1) A military sentence of imprisonment or detention or of field punishment shall begin to run from the beginning of the day on which sentence was originally pronounced by the court-martial trying the offender or, as the case may be, was originally awarded by his commanding officer.
(2) A sentence of imprisonment or detention passed by a court-martial on a soldier which is suspended in pursuance of section 106 before he has been committed to prison or a military establishment shall not begin to run until the beginning of the day on which the suspension is determined:
Provided that where the sentence is suspended by the Commander and the President determines the suspension, the President may direct that the sentence shall run from such earlier date, not earlier than the day on which sentence was originally pronounced by the court-martial, as the President may specify.
105. Duration of sentences of imprisonment and detention
(1) Where a soldier has been sentenced to imprisonment or detention by a court-martial, and the sentence is suspended in pursuance of section 106 after he has been committed to prison or a military establishment, the currency of the sentence shall be suspended from the beginning of the day after the day on which he is released in accordance with the provisions of the said section 106 until the beginning of the day on which the suspension is determined.
(2) Where any person serving a military sentence of imprisonment or detention becomes unlawfully at large during the currency of the sentence, then, in calculating the period for which he is liable to be imprisoned or detained in pursuance of the sentence, no account shall be taken of time elapsing during the period beginning with the day on which he became at large and ending with the day on which, as a person having become unlawfully at large, he is taken into military custody or the custody of a civil authority or (not having been taken into such custody) returns to the place in which he was imprisoned or detained before he became unlawfully at large:
Provided that if he satisfies such authority as may be specified in that behalf by or under the Imprisonment and Detention Regulations made by the President that during any time during the last-mentioned period he was in the custody of a civil authority, otherwise than on account of an offence committed by him while unlawfully at large, the last-mentioned time shall not be disregarded in calculating the period for which he is liable to be imprisoned or detained in pursuance of the military sentence.
(3) In subsection (2) the expression "civil authority" means a civil authority authorised by law to detain persons, and includes a police officer.
(4) Without prejudice to subsection (2), where any person serving a military sentence of imprisonment or detention has in accordance with the Imprisonment and Detention Regulations been temporarily released on compassionate grounds, then, in calculating the period for which he is liable to be imprisoned or detained in pursuance of the sentence, no account shall be taken of time elapsing during the period beginning with the day after that on which he is released and ending with the day on which he is required to return to custody.
(5) A person who for any period is released as mentioned in subsection (4) or who is otherwise allowed, in pursuance of the Imprisonment and Detention Regulations, out of any military establishment or otherwise out of military custody for any period or subject to any condition shall, on failure to return at the expiration of the period or to comply with the condition, be treated for the purposes of subsection (2) as being unlawfully at large.
(6) A person serving a military sentence of imprisonment or detention in civil custody who, after being temporarily released under civil law, is at large at any time during the period for which he is liable to be detained in civil custody in pursuance of his sentence shall be deemed to be unlawfully at large if the period for which he was temporarily released has expired or if an order recalling him has been made in pursuance of civil law.
(7) References in subsection (6) to release or recall under civil law are references to release or recall under the Prisons Act (Cap. 21:03).
(1) The following provisions of this section shall have effect with regard to the suspension of a sentence of imprisonment or detention passed by a court-martial on a soldier.
(2) Without prejudice to section 98(5), in confirming such a sentence the Commander may order that the sentence shall be suspended.
(3) Any such sentence which is not for the time being suspended may, on the review or reconsideration of the sentence, be suspended by order of the Commander or the President, as the case may be.
(4) The suspension of any such sentence may (without prejudice to its being suspended again) be determined on the review or reconsideration of the sentence by an order of the Commander or the President, as the case may be, committing the person sentenced to imprisonment or detention, as the case may be.
(5) Where, while any such sentence is suspended, the person sentenced is sentenced by court-martial to imprisonment or detention for a fresh offence, then (unless the balance of the earlier sentence is remitted by virtue of section 68(10))—
(a) the court may determine the suspension of the earlier sentence by an order committing the person sentenced to imprisonment or detention, as the case may be, and if so the court shall direct whether the two sentences are to run concurrently or consecutively;
(b) if the court does not exercise the powers conferred by paragraph (a), the Commander may exercise those powers on the confirmation of the later sentence;
(c) if neither the court nor the Commander exercises the said powers, the President may exercise those powers on the review of the later sentence;
(d) where the said powers are exercised (whether by the court, the Commander or the President), any power of suspension or remission exercisable in relation to the later sentence shall be exercisable also in relation to the earlier sentence:
Provided that this subsection has effect subject to section 68(11).
(6) Without prejudice to the further suspension of the earlier sentence, an order under subsection (5) directing that the suspension of that sentence shall be determined shall not be affected by the later sentence not being confirmed or by its being quashed.
(7) Where the sentence of a person in custody is suspended, he shall thereupon be released.
(8) The maximum intervals for the reconsideration, under section 101(2), of a sentence of imprisonment or detention which is suspended shall be three months, and not as specified under that subsection.
107. Restriction on serving of sentences of detention in prisons
A person shall not be required to serve any part of a military sentence of detention in a military or civil prison:
Provided that in such cases and subject to such conditions as may be specified by or under the Imprisonment and Detention Regulations a person serving such a sentence may be temporarily detained in a military or civil prison for any period not exceeding seven days.
108. Special provisions as to civil prisons in Botswana
A person sentenced to death or imprisonment and committed or transferred to a civil prison in pursuance of regulations made under section 128 or of the Imprisonment and Detention Regulations shall, while in that prison, be confined and otherwise dealt with in the same manner as a person confined therein under a like sentence of a civil court.
109. Special provisions as to carrying out or serving sentences outside Botswana
The President may from time to time make arrangements with the authorities of any country or territory outside Botswana whereby sentences of death passed by courts-martial in such countries may in accordance with regulations made under this Part be carried out in establishments under the control of those authorities, and military sentences of imprisonment or detention passed in such countries may in accordance with the Imprisonment and Detention Regulations be served wholly or partly in such establishments.
110. Country in which sentence of imprisonment or detention to be served
(1) A person who is serving a military sentence of imprisonment or detention in Botswana may (insofar as may be specified by or under the Imprisonment and Detention Regulations) be removed out of Botswana to any place where the unit or any part thereof to which for the time being he belongs is serving or is under orders to serve, but not to any other place.
(2) Subject to the following provisions, a person sentenced under this Act by a court-martial held out of Botswana to imprisonment or detention for more than 12 months shall as soon as practicable after the confirmation of the sentence is completed be removed to Botswana.
(3) Where a person has been sentenced under this Act by a court-martial held out of Botswana to imprisonment or detention for more than 12 months, the Commander or the President may, notwithstanding anything in subsection (2), direct that he shall not be required to be removed to Botswana until he has served such part of his sentence, not exceeding (in the case of a sentence of more than two years' imprisonment) two years, as may be specified in the direction; and in determining whether or not to exercise the powers conferred by this subsection the Commander or the President shall have regard to any recommendation in that behalf made by the court-martial.
(4) Any direction of the Commander under this section may at any time be revoked by the Commander or by the President, or superseded by any direction of the Commander or the President which the Commander or the President could have given under subsection (3); and any direction of the President under this section may at any time be revoked by him or superseded.
(5) Any direction given under this section, and the revocation of any such direction, shall be promulgated.
(6) In ascertaining at any time for the purposes of this section the nature or length of a sentence, regard shall be had to any commutation or remission of the sentence previously directed.
111. Duties of officers in charge of prisons and others to receive prisoners
(1) It shall be the duty, insofar as regulations made under this Part or the Imprisonment and Detention Regulations so provide, of the superintendent or other person in charge of a prison (not being a military prison) to receive any person duly sent to that prison in pursuance of such regulations and to confine him until execution of the sentence is completed or the prisoner is discharged or delivered over in due course of law.
(2) Where a person is in military custody in pursuance of a military sentence of imprisonment or detention, then, on receipt of a written order in that behalf purporting to be signed by that person's commanding officer, it shall be the duty of any such superintendent or other person as aforesaid or the police officer in charge of a police station or of any person in charge of any other place in which prisoners may be lawfully confined to keep that person in custody for a period not exceeding seven days unless the said person is earlier discharged or delivered over in due course of law.
Trial of Persons ceasing to be subject to this Act and Time Limits for Trials (ss 112-113)
112. Trial and punishment of offences under this Act notwithstanding offender ceasing to be subject thereto
(1) Subject to section 113, where an offence under this Act triable by court-martial has been committed, or is reasonably suspected of having been committed by any person while subject to this Act, then in relation to that offence he shall be treated, for the purposes of the provisions of this Act relating to arrest, keeping in custody, investigation of charges, trial and punishment by court-martial (including confirmation, review, reconsideration and suspension) and execution of sentences as continuing subject to this Act notwithstanding his ceasing at any time to be subject thereto.
(2) Where, while a person is in military custody by virtue of this section (whether before, during or after trial) he commits, or is reasonably suspected of having committed, an offence which if he were subject to this Act would be an offence under this Act triable by court-martial, then in relation to that offence or suspected offence he shall be treated, for the purposes of the provisions of this Act mentioned in subsection (1) and the provisions thereof as to the summary dealing with charges, as having been subject to this Act when the offence was committed or is suspected as having been committed and as continuing subject thereto thereafter.
(3) Where by virtue of either subsection (1) or (2) a person is treated as being at any time subject to this Act for the purpose of any provision of this Act, that provision shall apply to him—
(a) if he holds any military rank, as to a person having that rank;
(b) otherwise as to a person having the rank which he had when last actually subject to this Act:
Provided that as regards any time after he has been sentenced for the offence in question and the sentence has been confirmed the said provision shall apply to him (in any case) as to a private soldier.
(4) Where apart from this subsection any provision of this Act would under subsection (3) apply to a person, in relation to different offences, as to a person having different ranks, it shall apply to him as to a person having the lower or lowest of those ranks.
113. Limitation of time for trial of offences under this Act
(1) No person shall be tried by court-martial for any offence, other than one against section 34 or 35 or desertion, unless the trial is begun within three years after the commission of the offence, there being disregarded any time during which he was a prisoner of war and any time during which he was illegally absent:
Provided that—
(i) in the case of an offence against section 66 where proceedings for the corresponding civil offence must, by virtue of any law, be brought within a limited time, that limit of time shall apply to the trial of the offence under the said section 66 in substitution for the foregoing provisions of this subsection,
(ii) subject to any such limit of time as is mentioned in paragraph (i), a person may be tried by court-martial for a civil offence committed outside Botswana notwithstanding that it was committed more than three years before the beginning of the trial, if the Director of Public Prosecutions consents to the trial.
[18 of 2006, s. 2.]
(2) Where a person who has committed an offence of desertion, other than desertion on active service, has since the offence served as a member of the Regular Force continuously in an exemplary manner for not less than three years, he shall not be tried for that offence.
(3) A person shall not be triable by virtue of section 112(1) unless his trial is begun within three months after he ceases to be subject to this Act, or the trial is for a civil offence committed outside Botswana and the Director of Public Prosecutions consents to the trial:
[18 of 2006, s. 2.]
Provided that this subsection shall not apply to an offence against section 34 or 35 or to desertion.
(4) A person shall not be arrested or kept in custody by virtue of section 112(1) for an offence at any time after he has ceased to be triable for the offence.
Relations between Military and Civil Courts and Finality of Trials (ss 114-117)
(1) Except as provided in section 133, nothing in this Act shall restrict the offences for which persons may be tried by any civil court or the jurisdiction of any civil court to try a person subject to this Act for any offence.
(2) Where a person is tried by a civil court for any offence, and he has previously been sentenced by court-martial held under this Act to punishment for any act constituting (whether wholly or in part) that offence, or in pursuance of this Act he has been punished for any such act by his commanding officer or the appropriate superior authority, the civil court shall, in awarding punishment, have regard to his punishment in pursuance of this Act.
115. Persons not to be tried under this Act for offences already disposed of
(1) Where a person subject to this Act—
(a) has been tried for an offence by a competent civil court or a court-martial under this Act;
(b) has been charged with an offence under this Act, and has had the charge dismissed, or has been found guilty on the charge, by his commanding officer or the Commander;
(c) has had the offence condoned by his commanding officer,
he shall not be liable in respect of that offence to be tried by court-martial or to have the case dealt with summarily by his commanding officer or the Commander.
(2) For the purposes of this section—
(a) a person shall not be deemed to have been tried by a court-martial if confirmation is withheld of a finding by the court-martial that he is guilty of the offence;
(b) a person shall not be deemed to have had an offence taken into consideration by a court-martial in sentencing him if confirmation of the sentence of the court is withheld or the sentence is quashed;
(c) a case shall be deemed to have been dealt with summarily by the commanding officer or the Commander notwithstanding that the finding of that officer or the Commander has been quashed, or the award of that officer or the Commander quashed or varied, on the review thereof;
(d) an offence shall be deemed to have been condoned by the commanding officer of a person alleged to have committed the offence if, and only if, that officer or any officer authorised by him to act in relation to the alleged offence has with knowledge of all relevant circumstances informed him that he will not be charged therewith;
(e) a person ordered under section 55(2) to be imprisoned or to undergo detention for an offence against that section shall be deemed to have been tried by court-martial for the offence.
(3) Where confirmation of a finding of guilty of an offence is withheld the accused shall not be tried again by court-martial for that offence unless the order convening the later court-martial is issued not later than 28 days after the promulgation of the decision to withhold confirmation.
(4) Except as provided in the foregoing provisions, proceedings for an offence against this Act (whether before a commanding officer or the Commander or before a court-martial) shall not be barred on the ground of condonation.
116. Resolution of conflicts of jurisdiction
(1) The decision as to whether an offence shall be dealt with by the military authorities under this Act or by the civil authorities shall be determined by the Attorney-General in accordance with the following subsections.
(2) The civil authorities shall exercise jurisdiction in respect of offences committed in Botswana where the offence is one of those referred to in section 66(4).
(3) The civil authorities shall have the primary right to exercise jurisdiction in respect of offences committed in Botswana not referred to in subsections (4) and (5).
(4) The military authorities shall have the right to exercise jurisdiction in relation to offences under this Act at all times when the person alleged to have committed an offence against this Act is serving outside Botswana.
(5) The military authorities shall have the primary right to exercise jurisdiction in respect of offences committed in Botswana—
(a) if the offence is against the property or security of the Defence Force;
(b) if the offence is against the property or person of a person subject to this Act;
(c) if the offence is against the property or person of a dependant of a person subject to this Act when such dependant is residing with such person; or
(d) the offence arises out of an act or omission in the course of official duty.
(6) Notwithstanding the primary right of the military authorities to exercise jurisdiction in relation to any offence specified in subsections (4) and (5), the Commander may, if he considers that the military authorities have neither the facilities nor the personnel adequately to exercise jurisdiction over any such offence, refer it to the Director of Public Prosecutions who may deal with it as he considers fit.
[18 of 2006, s. 2.]
(7) In cases where the civil authorities and military authorities have primary right to jurisdiction in relation to specific or general offences, such authority shall give sympathetic consideration to any request from such other authority for a waiver by that authority of jurisdiction in any particular case or general class of cases; and in particular the civil authorities shall consider waiving their right of jurisdiction in the case of minor offences where the military authorities can impose a suitable punishment by disciplinary action under this Act without recourse to a civil court.
(8) TheThe corresponding offence involving the offering of violence. >
{/mprestriction}