Section 99-102 Constitution of Botswana 1966
Section 99, 100, 101, 102 of the Constitution of Botswana 1966 are under Part II (Court of Appeal) of Chapter VI of the Constitution. Chapter VI is titled The Judicature.
Section 99 Botswana Constitution 1966
Composition and jurisdiction
1. There shall be a Court of Appeal for Botswana which shall have such jurisdiction
and powers as may be conferred on it by this Constitution or any other law.
2. The judges of the Court of Appeal shall be—
a. the President of the Court of Appeal;
b. such number, if any, of Justices of Appeal as may be prescribed by
Parliament; and
c. the Chief Justice and the other judges of the High Court:
Provided that Parliament may make provision for the office of President of the Court of Appeal to be held by the Chief Justice ex-officio.
3. The office of a Justice of Appeal shall not be abolished while there is a
substantive holder thereof.
4. The Court of Appeal shall be a superior court of record and save as otherwise
provided by Parliament shall have all the powers of such a court.
Section 100 Botswana Constitution 1966
Appointment of judges of Court of Appeal
1. The President of the Court of Appeal shall, unless that office is held ex-officio by
the Chief Justice, be appointed by the President.
2. The Justices of Appeal, if any, 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 Court of Appeal
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; or
c. he or she is qualified to practise as an advocate or attorney and he or she has had experience in the teaching of law in a recognised university for not less than ten 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 President of the Court of Appeal is vacant or if the President of
the Court of Appeal 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 President of the Court of Appeal has resumed
those functions, as the case may be, those functions shall be performed by such
one of the other judges of the Court of Appeal or such other person qualified for
appointment as a judge of the Court of Appeal 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 101 of this Constitution;
ii. a person appointed under this subsection, who is not a judge of the Court of
Appeal, may, notwithstanding the assumption or resumption of the functions of the office of President of the Court of Appeal by the holder of that office, continue to act as a judge of the Court of Appeal 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 a Justice of Appeal is vacant or if any Justice of Appeal is appointed to act as Chief Justice or President of the Court of Appeal or is for any reason unable to perform the functions of his or her office, the President, acting in accordance with the advice of the Judicial Service Commission, may appoint a person qualified for appointment as a Justice of Appeal to act as a Justice of
Appeal:
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 101 of this Constitution.
7. Any person appointed under subsection (6) of this section to act as a Justice of
Appeal, shall subject to the provisions of section 101(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 Justice of Appeal 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 101 Botswana Constitution 1966
Tenure of office of judges of Court of Appeal
1. Subject to the provisions of this section, a person holding the office of a judge of
the Court of Appeal shall vacate that office on attaining the age of 70 years or such other age as may be prescribed by Parliament:
Provided that—
i. 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;
ii. a person may be appointed as President of the Court of Appeal or as a Justice of Appeal for a fixed period of three years notwithstanding that he or she has attained the age referred to in this subsection or that he or she will before the expiry of his or her appointment have attained that age; and
iii. the appointment as President of the Court of Appeal or as Justice of Appeal
serving for a fixed period under paragraph (ii) above shall not affect the
date at which he or she is due to retire.
2. A judge of the Court of Appeal 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 Court of Appeal 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 Court of Appeal ought to be removed from office
for inability as aforesaid or for misbehaviour, the President shall remove such
judge from office.
5. If the question of removing a judge of the Court of Appeal 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 102 Botswana Constitution 1966
Oaths to be taken by judges of Court of Appeal
A judge of the Court of Appeal 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 95-98 Botswana Constitution 1966 (The High Court)
