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.