Section 108-116 Constitution of Botswana 1966
Section 108, 109, 110, 111, 112, 113, 114, 115, 116 of the Constitution of Botswana 1966 are under Chapter VII of the Constitution. Chapter VII is titled The Public Service.
Section 108 Botswana Constitution 1966
Power to specify qualifications for certain offices
Subject to the provisions of this Constitution and of any Act of Parliament, power to
specify the qualifications and disqualifications for holding such public offices as he or she may constitute shall vest in the President.
Section 109 Botswana Constitution 1966
Public Service Commission
1. There shall be a Public Service Commission for Botswana which shall consist of a
Chairman and not less than two nor more than four other members.
2. The members of the Public Service Commission shall be appointed by the
President.
3. A person shall not be qualified for appointment as a member of the Public
Service Commission if he or she is a Member of the National Assembly or a
public officer, or is or has within the two years immediately preceding his or her
appointment been actively engaged in politics.
4. For the purposes of this section a person shall be deemed to be or to have been
actively engaged in politics in circumstances in which he or she would be
deemed to be or to have been so engaged for the purposes of section 64(4)(b) of
this Constitution.
5. Subject to the provisions of this section, the office of a member of the Public
Service Commission shall become vacant—
a. at the expiration of three years from the date of his or her appointment;
b. if any circumstances arise that, if he or she were not a member of the
Commission, would cause him or her to be disqualified for appointment as
such; or
c. if he or she is removed from office in accordance with the provisions of
subsection (6) of this section.
6. Subject to subsection (7) of this section a member of the Public Service
Commission may be removed from office by the President for inability to
discharge the functions of his or her office (whether arising from infirmity of
body or mind or any other cause) or for misbehaviour.
7. If the President considers that the question of removing a member of the Public
Service Commission under subsection (6) of this section ought to be investigated, then—
a. the President shall appoint a tribunal which shall consist of a Chairman and
not less than two other members selected by the Chief Justice from among
persons who hold or have held high judicial office; and
b. the tribunal shall enquire into the matter and report on the facts thereof to
the President and recommend to him or her whether the member ought to
be removed under subsection (6) of this section, and the President shall act
in accordance with that recommendation.
8. A member of the Public Service Commission shall not be removed from office
except in accordance with the provisions of this section.
9. If the office of Chairman of the Public Service Commission is vacant or if the
person holding that office is for any reason unable to perform the functions of his or her office, then, until a person has been appointed to and has assumed the functions of that office or until the person holding that office has resumed those functions, as the case may be, those functions shall be performed by such one of the other members of the Commission as may be designated in that behalf by the President.
10. If at any time there are less than two members of the Public Service Commission
besides the Chairman or if any such member is appointed to act as Chairman or is for any reason unable to perform the functions of his or her office, the President may appoint a person who is qualified for appointment as a member of the Commission to act as a member, and any person so appointed shall, subject to the provisions of subsection (5)(b) of this section, continue to act until the office in which he or she is acting is filled, or as the case may be, until the holder thereof resumes his or her functions or until his or her appointment to act is revoked by the President.
11. Except as provided in subsection (13) of this section the Public Service Commission shall not be subject to the direction or control of any other person or authority in the exercise of its functions under this Constitution.
12. A member of the Commission shall not enter upon the duties of his or her office
until he or she has taken and subscribed the oath of allegiance and such oath for the due execution of his or her office as may be prescribed by Parliament.
13. Provision may be made by or under an Act of Parliament prescribing the procedure of the Commission and, subject thereto, the Commission may regulate its own procedure.
14. Except as may be otherwise provided in its rules or procedure, the Commission
may act notwithstanding any vacancy in its membership or the absence of any member and its proceedings shall not be invalidated by the presence or participation of any person not entitled to be present at or to participate in those proceedings.
15. Any decision of the Commission shall require the concurrence of a majority of
all the members thereof.
16. A member of the Commission shall not, during the tenure of his or her office or
during the three years immediately following such tenure, be eligible for appointment to any public office other than that of Ambassador, High Commissioner or other principal representative of Botswana in any other country or accredited to any international organization.
Section 110 Botswana Constitution 1966
Appointment, etc., of public officers
1. Subject to the provisions of this section and of sections 111, 113 and 114 of this
Constitution, power to appoint persons to hold or to act in any office in the public service, to exercise disciplinary control over persons holding or acting in such offices and to remove from such offices shall vest in such person or persons as may be prescribed by Act of Parliament.
2. The provisions of this section shall not apply in relation to the following offices,
that is to say—
a. the office of judge of the Court of Appeal or of the High Court;
b. any office to which section 104 or 112 of the Constitution applies.
3. Before any person or persons as may have been prescribed under the provisions
of subsection (1) exercise power to appoint to or to act in any public office any person who holds or is acting in any office the power to make appointments to
which is vested by this Constitution in the President acting in accordance with
the advice of the Judicial Service Commission such person shall consult with the
Judicial Service Commission.
Section 111 Botswana Constitution 1966
Appeals to President
1. Any person other than a member of the Botswana Police Force or the Prison
Service who has been removed from office or subjected to any other
punishment by the exercise of any powers conferred on any person under the
provisions of section 110 of this Constitution may appeal to the Public Service
Commission who may dismiss such appeal or allow it wholly or in part.
2. Subject to the provisions of subsection (3) every decision of the Public Service
Commission under the provisions of this section shall be final.
3. Notwithstanding anything contained in subsection (2) if the Public Service
Commission dismisses an appeal or allows it in part only the person who
appealed may appeal to the President.
4. If any person appeals to the President in accordance with the provisions of
subsection (3) of this section the President shall either dismiss the appeal or
shall order that it be heard by a tribunal appointed by the President, the
Chairman of which shall be a person who holds or has held high judicial office or
is qualified to be appointed as a judge of the High Court.
5. If the President appoints a tribunal to hear an appeal in accordance with
subsection (4) of this section the tribunal shall hear the appeal and shall advise
the President whether or not the appeal should be allowed either wholly or in
part, and the President shall act in accordance with that advice.
Section 112 Botswana Constitution 1966
Powers of President in relation to certain public offices
1. The power to appoint a person to hold or act in offices to which this section
applies and to remove from office and to exercise disciplinary control over
persons holding or acting in such offices shall, subject to the provisions of
sections 113 and 114 of this Constitution, vest in the President.
2. The offices to which this section applies are—
a. Ambassador, High Commissioner or other principal representative of
Botswana in any other country or accredited to any international
organisation;
b. Secretary to the Cabinet;
c. Attorney-General;
cA. Director of Public Prosecutions;
d. Permanent Secretary;
e. Commissioner of Police; and
f. any other superscale office (other than an office to which this Constitution
makes specific provision for appointment or an office to which appointment
is made under the provisions of section 104 of this Constitution) which may
be prescribed by Act of Parliament.
Section 113 Botswana Constitution 1966
Tenure of office of Director of Public Prosecutions
1. Subject to the provisions of this section, a person appointed as Director of Public
Prosecutions shall hold office for a 5 year renewable term or until he or she
attains the age of 60 years, whichever is the earlier.
2. A person holding the office of Director of Public Prosecutions may be removed
from office only for inability to perform the functions of his or her office
(whether arising from infirmity of body or mind or any other cause) or for
misbehaviour or for incompetence and shall not be so removed except in
accordance with the provisions of this section.
3. If the President considers that the question of removing a person holding the
office of Director of Public Prosecutions from office ought to be investigated
then-
a. he or she shall appoint a tribunal which shall consist of a Chairman and not
less than two other members, who hold or have held high judicial office; and
b. the tribunal shall enquire into the matter and report on the facts thereof to
the President and advise the President whether the person holding the
office of Director of Public Prosecutions ought to be removed from office
under this section for inability as aforesaid or for misbehaviour or for
incompetence.
4. Where a tribunal appointed under subsection (3) of this section advises the
President that a person holding the office of Director of Public Prosecutions
ought to be removed from office for inability as aforesaid or for misbehaviour or
for incompetence, the President shall remove such person from office.
5. If the question of removing a person holding the office of Director of Public
Prosecutions from office has been referred to a tribunal under this section, the
President may suspend that person from performing the functions of his or her
office, and any such suspension may at any time be revoked by the President and
shall in any case cease to have effect if the tribunal advises the President that
the person ought not to be removed from office.
Section 114 Botswana Constitution 1966
Tenure of office of Auditor-General
1. Subject to the provisions of this section, a person holding the office of
Auditor-General shall vacate his or her office when he or she attains the age of
60 years or such other age as may be prescribed by Parliament.
2. A person holding the office of Auditor-General may be removed from office only
for inability to perform the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not
be so removed except in accordance with the provisions of this section.
3. If the National Assembly resolves that the question of removing a person holding the office of Auditor-General from office under this section ought to be investigated then—
a. the Assembly shall, by resolution, appoint a tribunal which shall consist of a
Chairman and not less than two other members, who hold or have held high
judicial office;
b. the tribunal shall enquire into the matter and report on the facts thereof to
the Assembly;
c. the Assembly shall consider the report of the tribunal at the first convenient sitting of the Assembly after it is received and may, upon such consideration, by resolution, remove the Auditor-General from office.
4. If the question of removing a person holding the office of Auditor-General from
office has been referred to a tribunal under this section, the National Assembly may, by resolution, suspend that person from performing the functions of his or her office, and any such suspension may at any time be revoked by the Assembly by resolution and shall in any case cease to have effect if, upon consideration of the report of the tribunal in accordance with the provisions of this section, the Assembly does not remove the Auditor-General from office.
Section 115 Botswana Constitution 1966
Pensions laws and protection of pensions rights
1. The law to be applied with respect to any pensions benefits that were granted to
any person before the coming into operation of this Constitution shall be the law
that was in force at the date on which those benefits were granted or any law in
force at a later date that is not less favourable to that person.
2. The law to be applied with respect to any pensions benefits (not being benefits
to which subsection (1) of this section applies) shall—
a. in so far as those benefits are wholly in respect of a period of service as a
public officer that commenced before the date on which this Constitution
comes into operation, be the law that was in force immediately before that
date; and
b. in so far as those benefits are wholly or partly in respect of a period of
service as a public officer that commenced after the date on which this
Constitution comes into operation, be the law in force on the date on which
that period of service commenced, or any law in force at a later date that is not less favourable to that person.
3. Where a person is entitled to exercise an option as to which of two or more laws
shall apply in his or her case, the law for which he or she opts shall, for the purposes of this section, be deemed to be more favourable to him or her than the other law or laws.
4. All pensions benefits shall (except to the extent to which under any law providing for the funding of pensions benefits they are a charge on a fund established by that law and have been duly paid out of that fund to the person or authority to whom payment is due) be a charge on the Consolidated Fund.
5. In this section “pensions benefits” means any pensions, compensation, gratuities
or other like allowances for persons in respect of their service as public officers or as members of the armed forces or for the widows, children, dependants or personal representatives of such persons in respect of such service.
6. References in this section to the law with respect to pensions benefits include
(without prejudice to their generality) references to the law regulating the circumstances in which such benefits may be granted or in which the grant of such benefits may be refused, the law regulating the circumstances in which any such benefits that have been granted may be withheld, reduced in amount or suspended and the law regulating the amount of any such benefits.
7. In this section references to service as a public officer include references to service as a public officer of the former Protectorate of Bechuanaland.
Section 116 Botswana Constitution 1966
Power of Commissions in relation to pensions, etc
1. Where under any law any person or authority has a discretion—
a. to decide whether or not any pensions benefits shall be granted; or
b. to withhold, reduce in amount or suspend any such benefits that have been
granted, those benefits shall be granted and may not be withheld, reduced in amount or suspended unless the appropriate Commission concurs in the refusal to grant the benefits or, as the case may be, in the decision to withhold them, reduce them in amount or suspend them.
2. Where the amount of any pensions benefits that may be granted to any person
is not fixed by law, the amount of the benefits to be granted to him or her shall be the greatest amount for which he or she is eligible unless the appropriate Commission concurs in his or her being granted benefits of a smaller amount.
3. The appropriate Commission shall not concur under subsection (1) or subsection
(2) of this section in action taken on the ground that any person who holds or has held the office of a judge of the Court of Appeal or of the High Court or the Auditor-General or Director of Prosecutions has been guilty of misbehaviour unless he or she has been removed from office by reason of such misbehaviour.
4. In this section “the appropriate Commission” means—
a. in the case of benefits for which any person may be eligible in respect of the service in the public service of a person who, immediately before he ceased to be a public officer, was subject to the disciplinary control of the Judicial Service Commission or that have been granted in respect of such service, the Judicial Service Commission;
b. in any other case, the Public Service Commission.
5. In this section “pensions benefits” means any pensions, compensation, gratuities or other like allowances for persons in respect of their service as public officers (including service as public officers of the former Protectorate of Bechuanaland) or for the widows, children, dependants or personal representatives of such persons in respect of such service.
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