Section 95-98 Constitution of Botswana 1966

Section 95, 96, 97, 98 of the Constitution of Botswana 1966 are under Part I (The High Court) of Chapter VI of the Constitution. Chapter VI is titled The Judicature.

Section 95 Botswana Constitution 1966

Jurisdiction and composition

1. There shall be for Botswana a High Court which shall have unlimited original
jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.

2. The judges of the High Court shall be the Chief Justice and such number of other
judges of the Court as may be prescribed by Parliament:
Provided that the office of a judge of the High Court shall not be abolished while
there is a substantive holder thereof.

3. The High Court shall be a superior court of record and, save as otherwise provided by Parliament, shall have all the powers of such a court.

4. The High Court shall sit in such places as the Chief Justice may appoint.

5. The High Court shall have jurisdiction to supervise any civil or criminal
proceedings before any subordinate court or any court martial and may make
such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any
such court.

6. The Chief Justice may make rules with respect to the practice and procedure of
the High Court in relation to the jurisdiction and powers conferred on it by subsection (5) of this section.

7. The Chief Justice may appoint a Rules of Court Advisory Committee to assist him or her in reviewing and overhauling the rules made under subsection (6) and to advise on proposals to update and amend such rules.

Section 96 Botswana Constitution 1966

Appointment of judges of High Court

1. The Chief Justice shall be appointed by the President.

2. The other judges of the High Court shall be appointed by the President, acting in
accordance with the advice of the Judicial Service Commission.

3. A person shall not be qualified to be appointed as a judge of the High Court
unless—
a. he or she holds, or has held office, as a judge of a court having unlimited jurisdiction in civil and criminal matters in Botswana, in a Commonwealth
country or in any country outside the Commonwealth that may be prescribed by Parliament or a court having jurisdiction in appeals from such
a court; or
b. he or she is qualified to practise as an advocate or attorney in such a court and has been qualified for not less than ten years to practise as an advocate or attorney in such a court;
c. he or she is qualified to practise as an advocate or attorney and he or she has had the experience in the teaching of law in a recognised university for not less than ten years; or

d. he or she is a Chief Magistrate who has held that office for not less than five
years.

4. In computing, for the purposes of subsection (3) of this section, the period during which any person has been qualified to practise as an advocate or attorney any period during which he or she has held judicial office after becoming so qualified
shall be included.

5. If the office of Chief Justice is vacant or if the Chief Justice 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 Chief Justice has resumed those functions, as the case may be, those functions shall be performed by such one of the judges of the High Court or such other person qualified for appointment as a judge of the High Court as the President may appoint for that purpose:
Provided that—
i. a person may be appointed under this subsection notwithstanding that he or she has attained the age of 70 years or such other age as may be prescribed for the purposes of section 97 of this Constitution;
ii. a person appointed under this subsection, who is not a judge of the High Court, may, notwithstanding the assumption or resumption of the functions of the office of Chief Justice by the holder of that office, continue to act as a judge of the High Court for so long thereafter and to such extent as may be necessary to enable him or her to deliver judgment or to do any other thing in relation to proceedings that were commenced before him or her previously thereto.

6. If the office of any judge of the High Court is vacant, or if any such judge is appointed to act as Chief Justice, or is for any reason unable to perform the functions of his or her office, or if the President, acting after consultation with the Chief Justice, is satisfied that the state of business in the High Court requires that the number of judges of the court should be temporarily increased, the President, acting in accordance with the advice of the Judicial Service Commission, may appoint a person qualified for appointment as a judge of the High Court to act as a judge of that court:
Provided that a person may be so appointed notwithstanding that he or she has attained the age of 70 years or such other age as may be prescribed for the purposes of section 88 of this Constitution.

7. Any person appointed under subsection (6) of this section to act as a judge of the High Court shall, subject to the provisions of section 97(4) and (5) of this Constitution, continue to act for the period of his or her appointment or, if no such period is specified, until his or her appointment is revoked by the President, acting in accordance with the advice of the Judicial Service Commission:

Provided that the President, acting in accordance with the advice of the Judicial Service Commission, may permit a person whose appointment to act as a judge of the High Court has expired or been revoked to continue to act as such a judge for such period as may be necessary to enable him or her to deliver judgment or to do any other thing in relation to proceedings that were commenced before him or her previously thereto.

Section 97 Botswana Constitution 1966

Tenure of office of judges of High Court

1. Subject to the provisions of this section, a person holding the office of a judge of
the High Court shall vacate that office on attaining the age of 70 years or such
other age as may be prescribed by Parliament:
Provided that the President, acting in accordance with the advice of the Judicial
Service Commission, may permit a judge who has attained that age to continue
in office for such period as may be necessary to enable him or her to deliver
judgment or to do any other thing in relation to proceedings that were
commenced before him or her before he or she attained that age.

2. A judge of the High Court 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 from any other cause) or for misbehaviour, 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 judge of the High Court under this section 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;
b. the tribunal shall enquire into the matter and report on the facts thereof to
the President and advise the President whether the judge ought to be
removed from office under this section for inability as aforesaid or for
misbehaviour.

4. Where a tribunal appointed under subsection (3) of this section advises the President that a judge of the High Court ought to be removed from office for inability as aforesaid or for misbehaviour, the President shall remove such judge from office.

If the question of removing a judge of the High Court from office has been
referred to a tribunal under subsection (3) of this section, the President may
suspend the judge 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 judge
ought not to be removed from office.

Section 98 Botswana Constitution 1966

Oaths to be taken by judges of High Court

A judge of the High Court shall not enter upon the duties of his or her office unless he or she has taken and subscribed such oath for the due execution of his or her office as may be prescribed by Parliament.

See also:

Section 94 Botswana Constitution 1966 (Interpretation)