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(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established or recognised by law.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 authorised 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. (9) Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established or recognised by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time. (10) Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public. (11) Nothing in subsection (10) shall prevent the court or other adjudicating authority from excluding from the proceedings persons other than the parties thereto and their legal representatives to such extent as the court or other authority— ( a ) may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or in interlocutory proceedings; or ( b ) may be empowered by law to do so in the interests of defence, public safety, public order, public morality, the welfare of persons under the age of 18 years or the protection of the private lives of persons concerned in the proceedings. (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; ( b ) subsection (2)( d ) or (2)( e ) of this section to the extent that the law in question prohibits legal representation before a subordinate court in proceedings for an offence under customary law (being proceedings against any person who, under that law, is subject to that law); ( c ) subsection (2)( c ) of this section to the extent that the law in question imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds; ( d ) subsection (5) of this section to the extent that the law in question authorises a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, so, however, that any court so trying such a member and convicting him or her shall in sentencing him or her to any punishment take into account any punishment awarded him or her under that disciplinary law; ( e ) subsection (8) of this section to the extent that the law in question authorises a court to convict a person of a criminal offence under any customary law to which, by virtue of that law, such person is subject. (13) In the case of any person who is held in lawful detention, the provisions of subsection (1), subsection (2)( d ) and ( e ) and subsection (3) of this section shall not apply in relation to his or her trial for a criminal offence under the law regulating the discipline of persons held in such detention. (14) In this section “criminal offence” means a criminal offence under the law in force in Botswana.