Botswana

Section 35 states:

(1) Whenever the President dies, resigns or ceases to hold office, the Vice-President shall assume office as President with effect from the date of the death, resignation or ceasing to be President.

(2) If the office of President-

• (a)  becomes vacant in circumstances in which there is no Vice-President; or
• (b)  is vacant whilst the Vice-President is absent from Botswana or is, by reason of physical or mental infirmity unable to perform the functions of his or her office, the functions of the office of President shall, until such time as a new President assumes office in accordance with this section or section 32 of this Constitution, be performed by such Minister as the Cabinet shall appoint. For the purposes of this subsection, a certificate of the Chief Justice that the Vice-President is by reason of physical or mental infirmity unable to discharge the functions of his or her office, shall, in respect of any period for which it is in force, be conclusive and shall not be questioned in any court….

(4) If the office of President becomes vacant, the National Assembly shall, unless Parliament is dissolved, and notwithstanding that it may be prorogued, meet on the seventh day after the office of President becomes vacant, or on such earlier day as may be appointed by the Speaker, and shall elect a person to the office in such manner as is prescribed by the next following subsection and, subject thereto, by or under an Act of Parliament.

(5) In an election of a President under this section-

• (a)  the Speaker shall preside at the meeting and conduct the election;
• (b)  a person may be a candidate if and shall not be a candidate unless he or she has been nominated as a candidate with his or her consent prior to the sitting of the National Assembly at which the election takes place, by not less than 10 Members of the National Assembly entitled to vote in that election…

(7) At any time when the office of Speaker is vacant or the holder of that office is unable by reason of absence or illness to exercise the functions vested in him or her by this section and section 32(6) of this Constitution, those functions may be exercised by the Deputy Speaker of the National Assembly or, if there is no Deputy Speaker or the Deputy Speaker is unable by reason of absence or illness to exercise those functions, by such member of the Assembly (not being the President or Vice-President or a Minister or Assistant Minister) as the Assembly may elect for that purpose.

 

Section 36 states:

(1) Whenever the President is absent from Botswana or considers it desirable to do so by reason of illness or any other cause he or she may, by directions in writing, authorize-

• (a)  the Vice-President; or
• (b)  during any period when there is no Vice-President or the Vice-President is absent from Botswana or is, by reason of physical or mental infirmity, unable to perform the functions of his or her office, some other Minister, to discharge such of the functions of the office of President as he or she may specify, and the Vice-President or other Minister may discharge those functions until his or her authority is revoked by the President.

(2) If the President is incapable by reason of physical or mental infirmity of discharging the functions of his or her office and the infirmity is of such a nature that the President is unable to authorize another person under this section to perform those functions-

• (a)  the Vice-President; or
• (b)  during any period when there is no Vice-President or the Vice-President is absent from Botswana or the Vice-President is, by reason of physical or mental infirmity, unable to perform the functions of his or her office, such Minister as the Cabinet shall appoint, shall perform the functions of the office of President.

(3) A person performing the functions of the office of President under this section shall not exercise the power of the President to revoke the appointment of the Vice-President or to dissolve Parliament.

(4) A person performing the functions of the office of President by virtue of subsection (2) of this section shall cease to perform those functions if he or she is notified by the President that the President is about to resume those functions.

(5) For the purposes of this section, a certificate of the Chief Justice that-

• (a) the President is incapable by reason of physical or mental infirmity of discharging the functions of his or her office and the infirmity is of such a nature that the President is unable to authorize another person under this section to perform the functions of his or her office; or
• (b)  the Vice-President is by reason of physical or mental infirmity unable to discharge the functions of his or her office, shall, in respect of any period for which it is in force, be conclusive and shall not be questioned in any court: Provided that any such certificate as is referred to in paragraph (a) of this subsection shall cease to have effect if the President notifies any person under subsection (4) of this section that he or she is about to resume the functions of the office of President.

 

Section 39, subsection 4 states:

If the Vice-President is absent from Botswana or is incapable by reason of illness or any other cause of discharging the functions of his or her office, the President may appoint a person, from among the Members of the Assembly, to perform the functions of the office of Vice-President and any person so appointed may discharge those functions accordingly…

 

Section 61 states:

…a person shall be qualified to be elected as a Member of the National Assembly if, and shall not be qualified to be so elected unless he …

• (d) is able to speak, and, unless incapacitated by blindness or other physical cause, to read English well enough to take an active part in the proceedings of the Assembly.

 

Section 62, subsection 1 states:

Any person who fulfils the following criteria is disqualified from membership in the National Assembly:

• "…(c) is certified to be insane or otherwise adjudged or declared to be of unsound mind under any law for the time being in force in Botswana..."

 

Section 64, subsection 7 states:

If, after the appointment of the Delimitation Commission and before the Commission has submitted its report under section 65, the office of Chairman or any other member of the Commission falls vacant or the holder of the office becomes unable for any reason to discharge his or her functions as a member of the Commission, the Judicial Service Commission may, subject to the provisions of subsections (3) to (5) of this section, appoint another person to be a member of the Commission…

 

Section 65 states:

…(8) A holder of the office of Secretary 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.

(9) If the President considers that the question of removing the Secretary ought to be investigated then-

• (a)  he or she shall appoint a tribunal which shall consist of a Chairman and not less than two members who hold or have held high judicial office;
• (b)  the tribunal shall enquire into and report on the facts thereof to the President and advise the President whether the Secretary ought to be removed from office under this section for inability to perform the functions of his or her office or for misbehaviour.

(10) Where a tribunal appointed under subsection (9) advises the President that the Secretary ought to be removed for inability to perform the functions of his or her office or for misbehaviour, the President shall remove him or her from office.

(11) If the question of removing the Secretary from office has been referred to a tribunal under subsection (9) of this section, the President may suspend him or her from performing the functions of his or her office, and any such suspension may at any time be revoked by the President and shall cease to have effect if the tribunal advises the President that the Secretary ought not to be removed from office.

 

Section 67, subsection 3 states:

A person shall be entitled to be registered as a voter--…

• (c) in the case of a person who is not resident in Botswana and is unable to register in person, at such place as may be prescribed by Parliament and registration at such place shall be treated as registration in the constituency in which he or she last resided, or in which he or she was born in Botswana.

 

Section 68, subsection 2 states:

If circumstances such as are referred to in paragraph (c) of the preceding subsection arise in relation to a Member of the Assembly by virtue of the fact that he or she is declared insolvent, adjudged to be of unsound mind, sentenced to death or imprisonment, or convicted of an election offence and it is open to the Member to appeal against the decision (either with the leave of the court or other authority or without such leave), he or she shall forthwith cease to perform his or her functions as a Member of the Assembly but, subject to the next following  subsection, he or she shall not vacate his or her seat until the expiration of a  period of 30 days thereafter…

 

Section 79, subsection 2 states:

No person shall be qualified to be elected as a Member of the Ntlo ya Dikgosi who:…

• (c) is certified to be insane or otherwise adjudged to be of unsound mind under any law for the time being in force in Botswana.

 

Section 96 states:

…(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…

(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…

 

Section 97 states:

… (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.

(5) 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 100 states:

…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…

(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

 

Section 101 states:

…(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 103, subsection 2 states:

• …(i) a member nominated under paragraph (e) may be removed from office by the rest of the members of the Commission acting together only for inability of the member to discharge the functions of his or her office whether arising from infirmity of mind or body or any other cause or for gross misbehaviour; or
• (ii)  a member appointed under paragraph (f) may be removed from office by the President only for inability of the member to discharge the functions of hisor her office whether arising from infirmity of mind or body or any other cause or for gross misbehaviour.

 

Section 109 states:

…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…

 

Section 113 states:

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 states:

…(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 127 states:

…(6) In this Constitution, unless it is otherwise provided or required by the context, a reference to the power to make appointments to any office shall be construed as including a reference to the power to make appointments on promotion and transfer and to confirm appointments and to the power to appoint a person to act in or perform the functions of that office at any time when the office is vacant or the holder thereof is unable (whether by reason of absence or infirmity of mind or body or any other cause) to perform the functions of that office…

(9) Where power is vested by this Constitution in any person or authority to appoint any person to act in or perform the functions of any office if the holder thereof is himself unable to perform those functions, no such appointment shall be called in question on the ground that the holder of the office was not unable to perform those functions…

 

First Schedule, section 1, subsection 2 states:

At any time when the office of Speaker is vacant or the holder of that office is unable by reason of absence or illness to exercise the functions vested in him or her by this Schedule those functions may be exercised by the Deputy Speaker of the National Assembly or, if there is no Deputy Speaker or the Deputy Speaker is unable by reason of absence or illness to exercise those functions, by such Member of the Assembly (not being the President or Vice-President or a Minister or Assistant Minister) as the Assembly may elect for that purpose.

 

Excerpts from the Constitution of Botswana (1966, last amended 2006)

Section 6, subsection 1 states:

No person shall be qualified to be registered as a voter who:…

• (c) is a person certified to be insane or otherwise adjudged or declared to be of unsound mind under any law for the time being in force in Botswana…

 

Section 10, subsection 5 states:

A registration officer shall not register any applicant who does not produce his national identity card at the time of applying for registration as a voter.

 

Section 54 states:

The voting at an election shall be conducted in the following manner--…

• (g) on the application in person of any voter who is incapacitated by blindness or other physical cause from voting, the presiding officer, in the presence of the person with whose assistance the voter came to cast his vote, shall cause the vote of the voter to be marked on a ballot paper in the manner directed by the voter, and the ballot paper to be placed in the ballot box.

 

Section 55 states:

Except as provided in this Act, the presiding officer or polling officers shall not give any assistance or explanation to a voter beyond—

• (a) directing him to a polling booth where he may vote; and
• (b) informing him of the procedure he should follow after entering the polling booth.

 

Section 59 states:

A vote may not be recorded by a voter except by his attending in person at the polling station and recording his vote in accordance with this Act.

 

Excerpts from the Electoral Act (1968, last amended 2004)