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Police - Discipline (Ss 21-36)

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21. Method of dealing with offences

  (1) Any offence committed by a police officer in regard to which proceedings are not instituted in a criminal court may be dealt with in accordance with this Part.

   (2) In proceedings before a Board under this Part, different offences may be charged in the alternative.

22. Offences for trial by criminal court

  (1) Any police officer who-

  (a) takes part in a mutiny; or

  (b) incites any police officer to take part in a mutiny,

shall be guilty of an offence and liable to imprisonment for a term not exceeding 10 years.

  (2) Any police officer who-

  (a) being present at any mutiny or sedition amongst the Service, does not endeavour by all possible means to suppress such mutiny or sedition;

  (b) knowing of any intended mutiny or sedition amongst the Service, does not give information thereof without delay to a senior officer;

  (c) deserts;

  (d) persuades, procures, assists or attempts to persuade, procure or assist any police officer to desert; or

  (e) knowing that any police officer has deserted or intends to desert, does not give information thereof without delay to a senior officer,

shall be guilty of an offence and liable to imprisonment for a term not exceeding 12 months.

  (3) A police officer shall not be found guilty of the offence of desertion unless the court is satisfied that there was an intention on the part of such officer not to return to the Service:

  Provided that proof that a police officer has been absent from duty without leave for a period of 14 days or more shall be prima facie evidence of an intention not to return to the Service.

  (4) In this section "mutiny" means a combination of between two or more police officers or between persons, two at least of whom are police officers-

  (a) to overthrow or resist lawful authority in the Service;

  (b) to disobey such authority in such circumstances as to make the disobedience subversive of discipline or with the object of avoiding any duty or service or impeding the performance of any duty or service.

23. Disciplinary offences

  An offence against discipline is committed by any police officer who is guilty of-

  (a) disobedience of orders, that is to say, if any police officer disobeys, or without good and sufficient cause omits or neglects to carry out any lawful order, written or otherwise;

  (b) insubordinate or oppressive conduct, that is to say, if a police officer-

  (i)  is disrespectful in word, act or demeanour to any other police officer senior in rank to him;

  (ii)  is oppressive or tyrannical in conduct towards any other police officer junior in rank to him;

  (iii)  uses obscene, abusive, or insulting language to any other police officer;

  (iv)  assaults any other police officer;

  (v)  wilfully or negligently makes any false complaint against any other police officer;

  (vi)  fails to report any complaint or report made against any police officer;

  (vii)  talks or is inattentive or otherwise misbehaves when on parade, under instruction, or receiving orders;

  (viii)  being under arrest or in confinement leaves or escapes from his arrest or confinement before being set at liberty by proper authority; or

  (ix)  being liable to arrest or confinement puts up resistance to such arrest or confinement;

  (c) neglect of duty, that is to say, if a police officer-

  (i)  having a duty to attend to, or take action on any matter, neglects to do so, or, without good and sufficient cause, fails to do so promptly and diligently;

  (ii)  idles or gossips or sits or lies down without authority or reasonable cause when on duty;

  (iii)  without authority or reasonable cause sleeps when on duty;

  (iv)  fails to work any beat or patrol in accordance with orders or leaves any beat or beat point or other place of duty without permission or sufficient cause;

  (v)  by carelessness or neglect permits a prisoner to escape;

  (vi)  when knowing where any offender is to be found fails to take all reasonable steps to make the offender amenable to the law;

  (vii)  having a duty to report any matter fails to do so;

  (viii)  knowing of any evidence or other matter relating to a criminal or disciplinary charge or investigation against any other person, or knowing or having a reasonable belief that some other person has knowledge of such matters, fails or refuses to disclose such information to the proper authority;

  (ix)  neglects or refuses to assist in the lawful apprehension of any person;

  (x)  without reasonable cause omits to make any necessary entry in, or erases, obliterates or defaces any entry in any official document, book or paper,

  (xi)  refuses, or without good and sufficient cause, omits to make or send a report, return or message which it is his duty to make or send; or

  (xii)  neglects to assist any person injured or taken ill in public;

  (d) discreditable conduct, that is to say, if any police officer-

  (i)  acts in a disorderly manner, or in any manner prejudicial to discipline or likely to bring discredit on the reputation of the Service;

    (ii)  lends money or offers any present to any senior officer or borrows money from or accepts any present from any junior in rank;

  (iii)  incurs debt in or out of the Service without reasonable prospect or intention of paying the same or, having incurred any debt, makes no reasonable effort to pay the same; or

  (iv)  if called upon by the Commissioner to furnish a full and true statement of his financial position, fails to do so;

  (e) absence without leave or being late for duty, that is to say, if any police officer-

  (i)  without reasonable cause or excuse is absent without leave from any duty, patrol, place of duty, parade, court or any other duty;

  (ii)  being temporarily or permanently quartered or accommodated in any police camp to which he has been posted, is visiting or is attached for duty, leaves such camp without right or permission; or

  (iii)  being temporarily or permanently quartered in any accommodation outside any police camp to which he has been posted, is visiting or is attached for duty, or being quartered or accommodated in the camp of a formation or unit to which he is not posted for duty, is absent from such quarters or accommodation for a period in excess of four hours without right or permission or contrary to any local order applicable;

  (f)  falsehood or prevarication, that is to say, if any police officer-

  (i)  knowingly makes or signs any false statement in any official book or document;

  (ii)  wilfully or negligently makes any false, misleading or inaccurate statement in connection with his duties;

  (iii)  without good and sufficient cause destroys or mutilates any official document or record, or alters or erases any entry therein; or

  (iv)  prevaricates before any court of inquiry, or disciplinary proceedings;

  (g) breach of confidence, that is to say, if any police officer-

  (i)  divulges any matter which it is his duty to keep secret;

  (ii)  gives notice, directly or indirectly, to any person against whom any warrant or summons has been or is about to be issued except in the lawful execution of such warrant or summons;

  (iii)  without proper authority communicates to the press or to any unauthorized person any matter concerning the Service;

  (iv)  without proper authority shows to any person outside the Service any book, written or printed document, item or equipment, or any other thing whatsoever, the property of or in possession of the Service;

  (v)  in any manner whatsoever makes or joins in making any anonymous communication to any person or organization relating to any matter concerning the Government or the Service;

  (vi)  makes any frivolous or vexatious complaint or makes a complaint in an irregular manner on any matter concerning the Service; or

  (vii)  signs or circulates any petition or statement with regard to any matter concerning the Service, except through the proper channels of correspondence to the Commissioner;

  (h) corrupt practice, that is to say, if any police officer-

  (i)  fails to account for or to make a true and prompt return of any money or property received in an official capacity;

  (ii)  without the authority of the Commissioner, accepts any fee or reward for any service performed in the course of his duties;

  (iii)  without the authority of the Commissioner accepts, or knowingly permits a member of his family to accept, from any company, organization, or individual other than a personal friend, any gift, entertainment or other advantage;

  (iv)  fails to return as soon as possible to the donor any gift received by him, or a member of his family, which in terms of subparagraph (iii) may not be accepted, or fails to report forthwith to a police officer senior in rank the offer of any gift, entertainment or other advantage which similarly may not be accepted; or

  (v)  solicits any gift, entertainment or other advantage for himself or for his family, which in terms of subparagraph (iii) may not be accepted;

  (i)  unlawful or unnecessary exercise of authority, that is to say, if any police officer-

  (i)  without good and sufficient excuse makes any unlawful or unnecessary arrest;

  (ii)  uses any unnecessary violence to or intimidates any prisoner or other person with whom he may be brought into contact in the execution of duty; or

  (iii)  is uncivil or lacking in courtesy to any member of the public;

  (j)  malingering, that is to say, if any police officer-

  (i)  feigns or exaggerates any sickness or injury with a view to evading duty; or

  (ii)  while absent from duty on account of sickness neglects or without good and sufficient cause omits to carry out any instruction of a medical officer or of a member of the hospital staff or acts or behaves in a manner likely or calculated to retard a return to duty;

  (k) discreditable appearance, that is to say, if any police officer-

  (i)  while on or off duty in uniform, is without reasonable cause improperly dressed or dirty or untidy in person, dress, clothing or accoutrements;

  (ii)  while on duty in plain clothes is without reasonable cause dirty or untidy in clothing or appearance; or

  (iii)  while on duty contravenes the standards which may from time to time be established with regard to the length of hair or beard;

  (l)  causing damage to or improper use of property, that is to say, if any police officer-

  (i)  wilfully or by carelessness causes any waste, loss or damage to any article of clothing or accoutrements or any book, document or other property of the Service, issued or entrusted to his care;

  (ii)  fails to report any such loss or damage however caused;

  (iii)  uses without proper authority any property of, in the possession of or used by the Service;

  (m)  offences relating to the consumption of liquor or drugs, that is to say, if any police officer-

  (i)  whilst on or warned for duty or at any time in a public place renders himself unfit for duty through the consumption of intoxicating liquor or drugs; or

  (ii)  whilst on or warned for duty partakes of any intoxicating liquor without authority;

  (n) entering premises where liquor is offered for sale for consumption on the premises or where liquor is being consumed when on duty, or when off duty in uniform, except when required to be there in the execution of his duty;

  (o) engaging without authority in any employment or business other than police duties;

  (p) discharging any firearm through negligence or without orders or just cause;

  (q) neglecting or failing to report that he is suffering from any contagious disease, or that any member of his family or any other person living or staying with him in any police lines, camp or quarter is suffering from any contagious disease;

  (r)  any other act, conduct, disorder or neglect to the prejudice of good order and discipline not hereinbefore specified;

  (s) conniving at or knowingly being an accessory to any offence against discipline under this Act; or

  (t)  steals or forges any radio, telecommunications or computerised messages, that is to say, if any police officer-

  (i)  with the intent to defraud takes a radio, telecommunication or computerised message from the possession of another police officer or other person having custody of it;

  (ii)  steals or destroys any radio, telecommunication or other computerised message or any part thereof;

  (iii)  receives any radio, telecommunication or computerised message knowing it to have been stolen or fraudulently obtained;

  (iv)  forges or fraudulently alters any radio, telecommunication or computerised message;

  (v)  transmits by police radio, telecommunication or computerised device any message or communication knowing it to be a forgery or fraudulently altered; or

  (vi)  without authority, transfers or gives to another person a police radio, telecommunication or computerised device which has been issued to him;

  (vii)  makes or seeks to make unauthorised access to a computer or telecommunication device and to programmes or data contained therein by whatever means;

  (viii)  makes or seeks to make unauthorised access to a computer or telecommunications device to modify, add or delete any programme or data contained therein by whatever means;

  (ix)  makes or seeks to make any unauthorised access to a computer or telecommunications device in order to make any unauthorised modification, addition or deletion of any programme or data contained therein, by whatever means,

and such offence may be inquired into, tried and determined and the offender shall be liable to suffer punishment, according to the degree and nature of the offence, in accordance with this Act.

24. Membership of political party, trade union, etc., forbidden

  (1) A police officer shall not be a member of any political party, or any organization, club, association or group of a political nature.

  (2) A police officer shall not be or become a member of-

  (a) any trade union, or any body or association affiliated to a trade union;

  (b) any body or association the object of which or one of the objects of which is to control or influence conditions of employment in any trade or profession; or

  (c) any body or association which includes in its objects the control or influence of the pay, pensions, conditions of service, or loyalty of the Service:

  Provided that a police officer may become a member of any such body or association which may be constituted and regulated pursuant to this Act.

  (3) Any police officer who contravenes this section shall be guilty of an offence against discipline, and, in addition to any other penalty which may be imposed, may be dismissed from the Service.

  (4) In this section "police officer" does not include a special constable or a member of the Reserve Service.

25. Powers of arrest and remand

  Any senior officer, station commander or member of the inspectorate may arrest without warrant, or order the arrest without warrant of any police officer (not being a police officer of higher rank) whom he has reasonable cause to believe has committed or is accused of an offence against discipline, and any police officer, on receipt of any such order, may apprehend such police officer without warrant and shall forthwith bring him before a senior officer, station commander or member of the inspectorate senior in rank to him who may confine such police officer in any building set apart as a guard room or cell:

  Provided that-

  (i) the power to confine such police officer shall only be exercised where the arrested officer is-

  (a) drunk or under the influence of liquor or drugs;

  (b) violent, or threatening violence;

  (c) disorderly;

  (d) suspected on reasonable grounds to be likely to absent himself, or desert from duty; or

  (e) suspected on reasonable grounds to be likely to be a danger to himself or others if released; and

  (ii) no police officer shall be detained for a period longer than is absolutely essential, and shall in any case not be detained for any period exceeding 48 hours excluding any time reasonably necessary to arrange his trial by a Board.

26. Authorities for the trial of disciplinary offences

  (1) Offences against discipline shall be tried before a Board constituted in accordance with subsection (2).

  (2) Boards for the trial of disciplinary offences shall be-

  (a) a Board of Enquiry I appointed to hear disciplinary charges against officers of the rank of Deputy Commissioner, and consisting of a chairman and two members appointed by the Permanent Secretary to the President, on the recommendation of the Commissioner, from persons in the public service of a status not inferior to the officer to be tried; and

  (aa)  a Board or Enquiry II appointed to hear charges against officers of the rank of Senior Assistant Commissioner and Assistant Commissioner and consisting of a chairman and two members appointed by the Commissioner from persons in the public service of a status not inferior to the officer to be tried;

  (b) a Class I Board appointed by the Commissioner to hear disciplinary charges against senior officers of up to and including the rank of Senior Superintendent and consisting of a chairman and two members; the chairman will be of rank not less than that of Assistant Commissioner, and the members shall be officers senior in rank to the officer to be tried;

  (c) a Class II Board appointed by the Commissioner to hear disciplinary charges against members of the inspectorate, and, where necessary in terms of paragraph (d), disciplinary charges against junior officers, and consisting of such number of senior officers not exceeding three as the Commissioner may direct:

  Provided that-

  (i)  where more than one senior officer is so appointed the chairman will be the most senior in rank;

  (ii)  where it appears to a senior officer with regard to a disciplinary charge against a member of the inspectorate that the offence is not sufficiently serious to require a Board of more than one senior officer the disciplinary hearing may proceed without the directions of the Commissioner;

  (d) a Class III Board to be held by any senior officer to hear disciplinary charges against any junior officer:

  Provided that where it appears to a Class III Board that, by reason of the gravity of the offence or for any other reason, the matter would be dealt with more properly by a Class II Board, the Class III Board shall defer its hearing and report the facts to the Commissioner, who may return the report for further inquiry or order the accused to be tried before a Class II Board.

27. Punishment

  (1) Boards shall have the power to award any one or more of the following punishments-

  (a) a Board of Enquiry-

  (i)  reprimand;

  (ii)  severe reprimand;

    (iii) in the case of a Board of Enquiry I, a fine not exceeding P2000, and in the case of a Board of Enquiry II, a fine not exceeding P1500;

  (iv)  reduction to any rank not less than Assistant Superintendent;

  (b) a Class I Board-

  (i)  reprimand;

  (ii)  severe reprimand;

  (iii)  a fine not exceeding P1000;

  (iv)  reduction to any rank not less than Sub-Inspector;

  (c) a Class II Board-

  (i)  reprimand;

  (ii)  severe reprimand;

  (iii)  a fine not exceeding P500;

  (iv)  reduction to any rank not less than sergeant:

  Provided that a Class II Board, trying a case under the proviso to section 26(2)(d) against a sergeant may reduce him in rank to constable;

  (d) a Class III Board-

  (i)  reprimand;

  (ii)  severe reprimand;

  (iii)  a fine not exceeding P250;

  (iv)  in the case of a sergeant reduction to the rank of constable;

  (v)  in the case of a constable a loss of four increments;

  (vi)  confinement to a police camp or quarters for a period not exceeding 14 days with or without extra guards, fatigues or duties.

  (2) In addition to punishments which may be awarded by Boards in terms of subsection (1), where any police officer has been convicted of a disciplinary offence under section 23 the Board convicting him may order him to make good any loss or damage and such order shall for the purposes of section 34 be deemed to be a fine, and for the purposes of section 29 shall be deemed to be a sentence.

28. Dismissal as a result of disciplinary action

  A Board may, upon conviction of an offender, in addition to or in lieu of any other penalty provided for in section 27, recommend to the appointing authority that the person convicted should be dismissed from the Service.

29. Confirmation, consideration and review of sentences

 (1) Any Board which sentences any police officer to any punishment other than a punishment in terms of section 27(1)(d)(vi) shall prepare a record of the proceedings in such manner as may be prescribed or as the Commissioner may require, and shall without further delay forward such report together with any further representations made by the police officer-
    15 of 2002, s. 14(a)(i). (a)    in the case of a Board of Enquiry or Class I Board, to the Permanent Secretary to the President, through the Commissioner; and
    15 of 2002, s. 14(a)(ii). (b)    in the case of all other Boards, to the Branch Commander having direct authority over the officer against whom proceedings were conducted.
    15 of 2002, s. 14(b)(i) and     (ii).

(2) On receipt of a record of proceedings forwarded to him in accordance with subsection (1), the Permanent Secretary to the President, the Commissioner or the Branch Commander, as the case may be, may-
    (a)    within the powers of the Board concerned, vary, reverse or confirm the sentence passed by that Board, which power of variation shall include the power to substitute for any punishment awarded by the Board a punishment of a different kind;
    (b)    substitute for the conviction recorded and the punishment awarded by the Board concerned in respect of any offence a conviction and punishment in respect of a different offence the commission of which he is satisfied has been proved, whether that different offence was or was not charged, and in respect of such substituted punishment he shall have power to award any one or more of the punishments which the Board concerned was empowered to award; and
    15 of 2002, s. 14(b)(iii). (c)    order a new trial before a different Board:
    Provided that-
    (i)    the Permanent Secretary to the President or the Commissioner shall not, under paragraph (b), substitute a conviction and punishment in respect of a different offence which was not charged without first giving the police officer in question the opportunity to address him;
    (ii)    the Permanent Secretary to the President or the Commissioner may, in addition to or in substitution for any punishment awarded by the Board concerned or in addition to any substituted punishment awarded by him under paragraph (b), dismiss the police officer in question from the Service, reduce his salary on the scale applicable to him or order the withholding of future increments of salary for a period not exceeding two years; and
    (iii)    where the Permanent Secretary to the President or the Commissioner alters a punishment of a reduction in rank or awards such a punishment as a substituted punishment under paragraph (a) or (b), he may order a reduction to any rank.
    15 of 2002, 2. 14(c).

(3) The powers conferred upon the Commissioner under subsection (2) may, with the exception of the power to dismiss or reduce the rank of a police officer and subject to the general or specific directions of the Commisssioner, be exercised by-
    (i)    a Deputy Commissioner; and
    (ii)    a Branch Commander having direct authority over the officer against whom proceedings were conducted:
            Provided that if the Branch Commander is of the opinion that a new trial should be ordered he shall make such a recommendation to the Commissioner and shall give the reasons for the recommendation.


    (4) Where any police officer is found not guilty and acquitted by any Board the record of the proceedings shall-
    (a)    in the case of a Board of Enquiry or a Class I Board, be forwarded to the Commissioner; and
    15 of 2002, s. 14(d). (b)    in the case of a Class II or Class III Board, be forwarded to the Branch Commander having direct authority over such person, and such Branch Commander may, if he is of the opinion that the evidence was sufficient to warrant a conviction, recommend to the appropriate review authority under subsection (2) that a new trial be ordered;
and such officer may, if he is of the opinion that the evidence was sufficient to warrant a conviction, recommend to the appropriate review authority under subsection (2) that a new trial should be ordered.
    15 of 2002, s. 14(e). (4A) Any police officer who has been subjected to any punishment by the exercise of powers conferred on a Deputy Commissioner or a Branch Commander under this section, may appeal to the Commissioner who may dismiss such appeal or allow it wholly or in part.


    (5) A review authority receiving a recommendation under subsection (4) may order a new trial before a different Board.


    (6) Where a further acquittal results from a new trial under subsection (5) a review authority shall not order any further proceedings.

30. Attendance of witnesses

 (1) A Board may summon any person to attend as a witness at a trial by a Board, and a Board may take evidence on oath or affirmation of any witness.


 (2) At a trial by a Board the Board may refuse to permit the officer accused to call a person as a witness and may refuse to summon a person to attend as a witness on the application of the officer accused unless it is satisfied that such person will materially assist in determining whether the officer accused is or is not guilty of the offence with which he is charged; and every such refusal shall be recorded in the record of the proceedings.


 (3) A senior officer may at the request of a review authority summon any person to attend as a witness in any review proceedings, and any witness so attending may be required to give evidence on oath or affirmation.


 (4) Any person summoned to attend as a witness under this section shall, at the order of a Board or review authority, produce thereto any exhibit material to the matter under enquiry which might reasonably and lawfully be required.

31. Disobedience to summons

  (1) Any person summoned as a witness under section 30 who fails to attend at the time and place appointed or who refuses to be sworn or affirmed, refuses to give evidence or to answer a lawful question or to do any lawful thing required by the Board, shall be liable to be dealt with by a magistrate's court in the like manner as if such witness has been a witness duly summoned to appear at a criminal trial before such court.

  (2) If in any proceedings under this Part any witness who, having been duly sworn or affirmed, makes any false statement knowing the same to be false shall be guilty of perjury and liable to punishment accordingly in a magistrate's court.

32. Witnesses' expenses

  Expenses shall be allowed in accordance with the scales of expenses for witnesses attending a magistrate's court to witnesses attending proceedings under this Act whether such witnesses are called for the prosecution or the defence:

  Provided that no police officer nor any person in the employment of the Botswana Government shall qualify for such expenses.

33. Defence of accused

  (1) At a trial by a Class II Board comprising less than three senior officers or by a Class III Board, the officer accused shall not be represented.

  (2) At a trial by a Board of Enquiry I or II, a Class I Board or a Class II Board comprising three senior officers, the officer accused shall not be represented except as provided by this section.

  (3) At a trial referred to in subsection (2), the officer accused shall be entitled to be represented at his own expense by a legal practitioner or by a senior officer or member of the inspectorate approved by the Commissioner:

  Provided that the officer accused shall not be represented by an officer of a lower rank or, where he is represented by an officer of the same rank, who is junior to him in seniority.

  (4) to (6) ......

34. Recovery of fines

  Any fine imposed upon a police officer by a Board may be recovered by stoppages from the pay of such officer.

35. Dismissal, etc., to be considered as punishment

  Reduction in rank or dismissal from the Service of an offender shall be considered as part of the punishment inflicted upon such member, and subject to appeal under section 37.

36. Disciplinary action after acquittal of criminal charges

  Where a police officer has been acquitted of a criminal charge, such acquittal shall not operate as a bar to disciplinary proceedings being instituted against such officer arising out of the same facts if such facts also disclose a different offence under this Act.