CHAPTER I The Republic
5. Protection of right to personal liberty
(1) No person shall be deprived of his or her personal liberty save as may be authorized by law in any of the following cases, that is to say-
(a) in execution of the sentence or order of a court, whether established for Botswana or
some other country, in respect of a criminal offence of which he or she has been convicted;
(b) in execution of the order of a court of record punishing him or her for contempt of that or another court;
(c) in execution of the order of a court made to secure the fulfilment of any obligation imposed on him or her by law;
(d) for the purpose of bringing him or her before a court in execution of the order of a court;
(e) upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the law in force in Botswana;
(f) under the order of a court or with the consent of his or her parent or guardian, for his
or her education or welfare during any period ending not later than the date when he or she attains the age of 18 years;
(g) for the purpose of preventing the spread of an infectious or contagious disease;
(h) in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his or her care or treatment or the protection of the community;
(i) for the purpose of preventing the unlawful entry of that person into Botswana, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Botswana, or for the purpose of restricting that person while he or she is being conveyed through Botswana in the course of his or her extradition or removal as a convicted prisoner from one country to another;
(j) to such extent as may be necessary in the execution of a lawful order requiring that person to remain within a specified area within Botswana or prohibiting him or her from being within such an area, or to such extent as may be reasonably justifiable for the taking of proceedings against that person relating to the making of any such order, or to such extent as may be reasonably justifiable for restraining that person during any visit that he or she is permitted to make to any part of Botswana in which, in consequence of any such order, his or her presence would otherwise be unlawful; or
CHAPTER I The Republic
5. Protection of right to personal liberty
(2) Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he or she understands, of the reasons for his or her arrest or detention.
CHAPTER I The Republic
5. Protection of right to personal liberty
(3) Any person who is arrested or detained-
(a) for the purpose of bringing him or her before a court in execution of the order of a court; or
(b) upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the law in force in Botswana, and who is not released, shall be brought as soon as is reasonably practicable before a court; and if any person arrested or detained as mentioned in paragraph (b) of this subsection is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him or her, he or she shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he or she appears at a later date for trial or for proceedings preliminary to trial. .
CHAPTER I The Republic
10. Provisions to secure protection of law
(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established or recognized by law. .
(2) Every person who is charged with a criminal offence-
(a) shall be presumed to be innocent until he or she is proved or has pleaded guilty;
(b) shall be informed as soon as reasonably practicable, in a language that he or she understands and in detail, of the nature of the offence charged;
(c) shall be given adequate time and facilities for the preparation of his or her defence;
(d) shall be permitted to defend himself or herself before the court in person or, at his or her own expense, by a legal representative of his or her own choice;
(e) shall be afforded facilities to examine in person or by his or her legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his or her behalf before the court on the same conditions as those applying to witnesses called by the prosecution ; and
(f) shall be permitted to have without payment the assistance of an interpreter if he or she cannot understand the language used at the trial of the charge, and except with his or her own consent the trial shall not take place in his or her absence unless he or she so conducts himself or herself as to render the continuance of the proceedings in his or her presence impracticable and the court has ordered him or her to be removed and the trial to proceed in his or her absence. .
(3) When a person is tried for any criminal offence, the accused person or any person authorized by him or her in that behalf shall, if he or she so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.
(4) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed. .
(5) No person who shows that he or she has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.
(6) No person shall be tried for a criminal offence if he or she shows that he or she has been pardoned for that offence .
(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.
(8) No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law:
Provided that nothing in this subsection shall prevent a court of record from punishing any person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty therefor is not so prescribed. .
CHAPTER I The Republic
10. Provisions to secure protection of law
(12) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of-
(a) subsection (2)(a) of this section to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;
CHAPTER I The Republic
16. Derogation from fundamental rights and freedoms
(1) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 5 or 15 of this Constitution to the extent that the law authorizes the taking during any period when Botswana is at war or any period when a declaration under section 17 of this Constitution is in force, of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during that period.
(2) Where a person is detained by virtue of such an authorization as is referred to in subsection (1) of this section the following provisions shall apply-
(a) he or she shall, as soon as reasonably practicable and in any case not more than five days after the commencement of his or her detention, be furnished with a statement in writing in a language that he or she understands specifying in detail the grounds upon which he or she is detained;
BOTSWANA – CRIMINAL PROCEDURE AND EVIDENCE ACT
PART VIII - Preparatory Examination
98. Persons committed for trial or sentence entitled to receive copy of depositions of witnesses
Every accused person who is committed for trial or sentence for any offence, shall be entitled to demand, and to have within a reasonable time in that behalf, from the person who has the lawful custody thereof, a copy of the depositions of the witnesses upon which he has been so committed and of his own statement and evidence (if any), and the person who has the lawful custody of such depositions, statements and evidence shall deliver a copy thereof to the person aforesaid or his legal representative on payment of a reasonable sum not exceeding seven thebe for each folio of 100 words, or, in any case where counsel is assigned by the court to defend the accused pro deo, shall deliver a copy thereof to the accused or such counsel free of charge:
Provided that
(i) if such demand is not made before the day appointed for the commencement of the trial of the person on whose behalf such demand is made, such person shall not be entitled to have any such copy of depositions, unless the judge presiding at the trial is of opinion that such copy may be made and delivered without delay or inconvenience to the trial, and
(ii) such judge may, if he thinks fit, postpone the trial by reason of such copy not having been previously had by the accused.
BOTSWANA – CRIMINAL PROCEDURE AND EVIDENCE ACT
PART VIII - Preparatory Examination
102. Access to accused by friends and legal advisers
(1) The friends and legal advisers of an accused person shall have access to him, subject to the provisions of any law or regulations relating to the management of gaol.
(2) An accused person while the preparatory examination is being held is entitled to the assistance of his legal advisers.
BOTSWANA – CRIMINAL PROCEDURE AND EVIDENCE ACT
PART XIII - Procedure after Commencement of Trial (ss 176-197)
A. IN THE HIGH COURT AND MAGISTRATES' COURT (ss 176-1 84)
177. Defence by counsel, etc.
Every person charged with an offence is entitled to make his defence at his trial and to have the witnesses examined or cross-examined by his counsel, or other legal representative:
Provided that upon his trial before a magistrate's court, an accused person under the age of 16 years may be assisted by his natural or legal guardian, and any accused person who in the opinion of the court requires the assistance of another person may, with the permission of the court, be so assisted.
BOTSWANA – CRIMINAL PROCEDURE AND EVIDENCE ACT
PART XIII - Procedure after Commencement of Trial (ss 176-197)
A. IN THE HIGH COURT AND MAGISTRATES' COURT (ss 176-1 84)
178. Presence of accused
(1) Every criminal trial shall take place, and the witnesses shall, except where otherwise expressly provided by this Act or any other law, give their evidence viva voce, in open court in the presence of the accused, unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable. In that event the court may order him to be removed and may direct the trial to proceed in his absence.
(2) If the accused absents himself during the trial without leave, the court may direct a warrant to be issued to arrest him and bring him before the court forthwith.
An Act to enable effect to be given in Botswana to certain international conventions made at Geneva on the 12th of August, 1949, and for purposes connected therewith.
Local Representation of Certain Persons
5. (1) The court before which -
(a) any person is brought up for trial for an offence under section 3 of this Act; or
(b) a protected prisoner of war or a protected internee is brought up for trial for any offence,
shall not proceed with the trial unless -
(i) the accused is represented by an advocate or attorney;
(ii) it is proved to the satisfaction of the court that a period of not less than fourteen days has elapsed since instructions for the representation of the accused at the trial were first given to the attorney by whom that advocate was instructed or by whom the accused is represented.
(2) Where the accused is a protected prisoner of war or a protected internee, in the absence of an advocate or attorney accepted by the accused as representing him, an advocate or attorney instructed for the purpose on behalf of the protecting power shall, without prejudice to the requirements of paragraph (ii) of the foregoing subsection, be regarded for the purposes of that subsection as representing the accused.
(3) If the court adjourns the trial by reason that the accused is not represented by an advocate or attorney, the court shall direct that an advocate, who shall have a right of audience not withstanding anything in section 9 of the Legal Practitioners Proclamation (Chapter 146), or an attorney be assigned to watch over the interests of the accused at any further proceedings in connection with the offence, and at any such further proceedings, in the absence of advocate or attorney either accepted by the accused as representing him or instructed as mentioned in the last preceding subsection, an advocate or an attorney, assigned in accordance with this subsection shall, without prejudice to the requirements of paragraph (ii) of subsection (1), be regarded for the purposes of that subsection as representing the accused.
(4) An advocate or an attorney shall be assigned in accordance with the last preceding subsection in such manner as the President may by regulation prescribe, and any advocate or attorney so assigned shall be entitled to be paid out of moneys provided by Parliament such sums in respect of fees and disbursements as the President may by regulation prescribe.
1. En las investigaciones realizadas de conformidad con el presente Estatuto:
(a) Nadie será obligado a declarar contra sí mismo ni a declararse culpable;
(b) Nadie será sometido a forma alguna de coacción, intimidación o amenaza, a torturas ni a otros tratos o castigos crueles, inhumanos o degradantes;
(c) Quien haya de ser interrogado en un idioma que no sea el que comprende y habla perfectamente contará, sin cargo alguno, con los servicios de un intérprete competente y las traducciones que sean necesarias a los efectos de cumplir el requisito de equidad; y
(d) Nadie será sometido a arresto o detención arbitrarios ni será privado de su libertad salvo por los motivos previstos en el presente Estatuto y de conformidad con los procedimientos establecidos en él.
2. Cuando haya motivos para creer que una persona ha cometido un crimen de la competencia de la Corte y esa persona haya de ser interrogada por el Fiscal o por las autoridades nacionales, en cumplimiento de una solicitud hecha de conformidad con lo dispuesto en la Parte IX, tendrá además los derechos siguientes, de los que será informada antes del interrogatorio:
(a) A ser informada de que existen motivos para creer que ha cometido un crimen de la competencia de la Corte;
(b) A guardar silencio, sin que ello pueda tenerse en cuenta a los efectos de determinar su culpabilidad o inocencia;
(c) A ser asistida por un abogado defensor de su elección o, si no lo tuviere, a que se le asigne un defensor de oficio, siempre que fuere necesario en interés de la justicia y, en cualquier caso, sin cargo si careciere de medios suficientes; y
(d) A ser interrogada en presencia de su abogado, a menos que haya renunciado voluntariamente a su derecho a asistencia letrada.
1. El acusado estará presente durante el juicio.
2. Si el acusado, estando presente en la Corte, perturbare continuamente el juicio, la Sala de Primera Instancia podrá disponer que salga de ella y observe el proceso y dé instrucciones a su defensor desde fuera, utilizando, en caso necesario, tecnologías de comunicación. Esas medidas se adoptarán únicamente en circunstancias excepcionales, después de que se haya demostrado que no hay otras posibilidades razonables y adecuadas, y únicamente durante el tiempo que sea estrictamente necesario.
1. Se presumirá que toda persona es inocente mientras no se pruebe su culpabilidad ante la Corte de conformidad con el derecho aplicable.
2. Incumbirá al Fiscal probar la culpabilidad del acusado.
3. Para dictar sentencia condenatoria, la Corte deberá estar convencida de la culpabilidad del acusado más allá de toda duda razonable.
1. En la determinación de cualquier cargo, el acusado tendrá derecho a ser oído públicamente, habida cuenta de las disposiciones del presente Estatuto, y a una audiencia justa e imparcial, así como a las siguientes garantías mínimas en pie de plena igualdad:
(a) A ser informado sin demora y en forma detallada, en un idioma que comprenda y hable perfectamente, de la naturaleza, la causa y el contenido de los cargos que se le imputan;
(b) A disponer del tiempo y de los medios adecuados para la preparación de su defensa y a comunicarse libre y confidencialmente con un defensor de su elección;
(c) A ser juzgado sin dilaciones indebidas;
(d) Con sujeción a lo dispuesto en el párrafo 2 del artículo 63, el acusado tendrá derecho a hallarse presente en el proceso y a defenderse personalmente o ser asistido por un defensor de su elección; a ser informado, si no tuviera defensor, del derecho que le asiste a tenerlo y, siempre que el interés de la justicia lo exija, a que se le nombre defensor de oficio, gratuitamente si careciere de medios suficientes para pagarlo;
(e) A interrogar o hacer interrogar a los testigos de cargo y a obtener la comparecencia de los testigos de descargo y que éstos sean interrogados en las mismas condiciones que los testigos de cargo. El acusado tendrá derecho también a oponer excepciones y a presentar cualquier otra prueba admisible de conformidad con el presente Estatuto;
(f) A ser asistido gratuitamente por un intérprete competente y a obtener las traducciones necesarias para satisfacer los requisitos de equidad, si en las actuaciones ante la Corte o en los documentos presentados a la Corte se emplea un idioma que no comprende y no habla;
(g) A no ser obligado a declarar contra sí mismo ni a declararse culpable y a guardar silencio, sin que ello pueda tenerse en cuenta a los efectos de determinar su culpabilidad o inocencia;
(h) A declarar de palabra o por escrito en su defensa sin prestar juramento; y
(i) A que no se invierta la carga de la prueba ni le sea impuesta la carga de presentar contrapruebas.
2. Además de cualquier otra divulgación de información estipulada en el presente Estatuto, el Fiscal divulgará a la defensa, tan pronto como sea posible, las pruebas que obren en su poder o estén bajo su control y que, a su juicio, indiquen o tiendan a indicar la inocencia del acusado, o a atenuar su culpabilidad, o que puedan afectar a la credibilidad de las pruebas de cargo. En caso de duda acerca de la aplicación de este párrafo, la Corte decidirá.