The office of the Director of Public Prosecutions (DPP) represents a significant constitutional

development, establishing it as an independent entity distinct from the Attorney-General's

Chambers, from which it originated. Although these two offices share some similarities, the
DPP operates with unique constitutional provisions, particularly concerning appointment,
tenure, and functions.

Appointment

The appointment of the DPP mirrors that of the Attorney-General, being the sole prerogative
of the President. The primary qualification is that the appointee must meet the criteria to be
appointed as a judge of the High Court. This restriction ensures a high standard of
competence and legal expertise for the officeholder.

Security of Tenure

The constitutional provisions regarding the tenure of the DPP are both flexible and rigid.
Under section 113(1) of the Constitution, the DPP holds office either for a renewable five-
year term or until reaching the age of 60 years, whichever occurs first. This arrangement
provides the President with flexibility to appoint the DPP on a short-term or permanent basis
but imposes a rigid limit on retirement at 60, with no provision for extension.

Unlike other senior judicial officers, such as the Attorney-General and judges, whose tenures
can be extended, the DPP's retirement age is strictly capped. The inability to extend the DPP's
tenure creates an anomaly within the constitutional framework. If extension was intended, it
would likely have been explicitly stated, as it has been for the Attorney-General and judges.
This lack of flexibility appears inconsistent and raises questions about its rationale.

Discipline and Removal

The disciplinary and removal procedures for the DPP align more closely with those of judges
of superior courts rather than the Attorney-General. Section 113 of the Constitution outlines
that removal can only occur based on specific grounds: incapacity to perform duties due to
physical or mental infirmity, misbehavior, or incompetence. Furthermore, such removal
requires a recommendation from a tribunal appointed to investigate the matter. This ensures
that the DPP cannot be dismissed arbitrarily, safeguarding the independence and integrity of
the office.

Overall, while the establishment of the DPP enhances the prosecutorial framework, certain
inconsistencies in tenure provisions highlight areas for potential constitutional refinement.

Constitutional Status

The constitutional status of the Director of Public Prosecutions (DPP) is marked by

ambiguity, particularly in its relationship with the Attorney-General. While section 51A(1)
designates the DPP's office as a public office, indicating that the DPP is a public officer, it
also places the DPP under the "administrative supervision of the Attorney-General."
However, the term "administrative supervision" is not explicitly defined, leading to
uncertainty about its practical implications.
Section 51(6)(b) adds to this complexity by affirming the DPP's independence, stating that
the DPP shall not be subject to "direction or control of any person or authority." Yet, this
independence is seemingly curtailed when it comes to cases "considered by the Attorney-
General to be of national importance," as the DPP is required to consult the Attorney-General
on such matters. This provision raises several issues:

1. Ambiguity in Oversight
The requirement for consultation on "national importance" cases is vague and lacks a
clear framework for defining such cases. This leaves room for subjective
interpretation by the Attorney-General, potentially undermining the DPP's
independence.
2. Potential Hierarchical Relationship
While the wording does not explicitly establish a hierarchical relationship, the
consultation requirement suggests a degree of oversight by the Attorney-General. This
is inconsistent with the ideal of the DPP as an independent authority and risks creating
confusion about decision-making responsibilities.
3. Political Vulnerability
The Attorney-General's dual role as a member of the Cabinet makes the office
inherently susceptible to political influence. This raises concerns about the DPP's
independence, particularly in high-profile or politically sensitive cases.

Proposed Clarifications

For the restructuring of the Attorney-General's Chambers to be coherent, the DPP's office
should be treated as a separate and independent entity. While administrative attachment to the
Attorney-General's Chambers may be practical for logistical reasons, the DPP must retain
operational independence to avoid external manipulation. If the legislature intends for the
Attorney-General to have final authority in certain cases, this must be explicitly stated, and
the scope of such cases must be defined to ensure clarity and prevent overreach.

Safeguarding Independence

The independence of the DPP is essential for upholding the rule of law and preventing
political interference in prosecutorial decisions. Although section 51A(6) aims to protect the
DPP from external control, the obligation to consult the Attorney-General on undefined
"national importance" cases poses a risk of interference. To address this, the legislation
should:

1. Clearly define what constitutes a "case of national importance."

2. Specify the limits and nature of the consultation process to maintain the DPP's
autonomy.
3. Ensure that the Attorney-General’s involvement, if any, is purely advisory and does
not compromise the DPP's discretion.

In conclusion, while the DPP's office has been established as a key prosecutorial authority,
the current constitutional provisions need refinement to reconcile its independence with any
intended oversight mechanisms.

Functions of the Director of Public Prosecutions

The Director of Public Prosecutions (DPP) in Botswana exercises extensive powers, defined
primarily by the Constitution and the Criminal Procedure and Evidence Act. These powers
establish the DPP as the central authority in the prosecution of criminal cases and related
matters.

Powers Under the Constitution

Section 51A(3) of the Constitution grants the DPP the authority to:

1. Initiate and Conduct Prosecutions: The DPP can institute and undertake criminal
proceedings against any individual in any court, excluding court-martials, for alleged
offences.
2. Take Over Prosecutions: The DPP can assume control of criminal proceedings
initiated by others.
3. Discontinue Prosecutions: The DPP has the discretion to terminate criminal
proceedings at any stage before judgment is delivered, regardless of who initiated the
prosecution.

These constitutional powers can be exercised personally or through delegation to

subordinates acting under the DPP's authority.

Powers Under the Criminal Procedure and Evidence Act

In addition to the Constitution, the Criminal Procedure and Evidence Act specifies several
key powers:

1. General Prosecution Powers: Authority to prosecute all offences.

2. Delegation: Appointment of individuals to prosecute on the DPP's behalf.
3. Termination of Prosecutions: Authority to halt prosecutions at any stage before
conviction.
4. Release of Accused Persons: Power to order the release of individuals committed for
further examination, sentencing, or trial.
5. Private Prosecutions: Oversight and intervention in private prosecutions.
6. Legal Clarifications: Referral of legal questions to the Court of Appeal for
resolution.

The Penal Code and various other statutes also extend the DPP's prosecutorial powers to
offences defined under specific laws.

Key Observations on Functions

1. Interplay with Investigating Agencies:

The DPP relies on agencies such as the police and the Directorate on Corruption and
Economic Crime (DCEC) to conduct criminal investigations. While investigations are
not directly under the DPP, the office often provides guidance on the direction of
investigations.
2. Transition from Police Prosecutions:
Historically, the police and DCEC prosecuted minor offences, referring complex
cases to the Attorney-General's Chambers. With the establishment of the DPP, efforts
 are underway to centralize all prosecutions under the DPP’s authority, enhancing
coordination and oversight.
3. Private Prosecutions:
Private prosecutions are permitted in limited circumstances, such as when the DPP
declines to prosecute. In such cases, individuals with a significant personal interest
may prosecute, subject to the DPP’s certificate of approval. The DPP retains the right
to intervene and assume control of private prosecutions.
4. Nolle Prosequi:
The DPP’s authority to discontinue prosecutions (nolle prosequi) is entrenched in
section 10 of the Criminal Procedure and Evidence Act. This power can be exercised
at any stage before conviction and is not subject to judicial review. However,
discontinuance does not amount to an acquittal, leaving room for re-indictment.
5. Clarification of Legal Issues:
The DPP can refer points of law to the Court of Appeal to resolve ambiguities and
establish precedents. This process has clarified significant legal principles, such as the
limits of judicial authority and statutory interpretation, thereby contributing to the
development of Botswana’s criminal law.

Broader Contributions

Beyond prosecutions, the DPP provides additional services such as:

 Conducting inquests into unnatural deaths.

 Offering legal education and public awareness on prosecution-related matters.
 Advising on criminal legal issues.

Impact of the DPP on the Criminal Justice System

The creation of the DPP's office marks a significant reform in Botswana’s criminal justice
system. Plans to consolidate prosecution functions under the DPP promise enhanced
efficiency and effectiveness. However, the success of these reforms will depend on the
allocation of adequate resources to expand the DPP’s reach nationwide and improve training
and recruitment of prosecutors.

In conclusion, the DPP plays a pivotal role in upholding justice in Botswana. By centralizing
prosecutorial authority and providing clear guidance on legal issues, the DPP ensures
consistency and fairness in criminal proceedings while safeguarding the rule of law.

The role and powers of the Director of Public Prosecutions (DPP) are outlined in the
Constitution and the Criminal Procedure and Evidence Act, as well as other relevant
statutes. Key references include:

1. Constitution of Botswana:
o Section 51A(3): Grants powers to institute, undertake, and discontinue
criminal proceedings.
o Section 10: Provides guidance on stopping prosecutions through the "nolle
prosequi" procedure.
2. Criminal Procedure and Evidence Act:
o Section 10: Entrenches the procedure for entering "nolle prosequi."
o Sections 14–25: Regulates private prosecutions.
 o Section 336(1): Allows the DPP to refer points of law to the Court of Appeal
for clarification.
3. Penal Code:
o The primary statute for prosecuting criminal offences.

Other relevant statutes include laws creating specific offences where the DPP plays a
prosecutorial role, and by-laws enforced by public bodies like city or town councils.

The Criminal Procedure and Evidence Act outlines the powers of the Director of Public
Prosecutions (DPP) in detail, granting significant authority to manage criminal prosecutions
in Botswana. These powers include:

1. Power to Prosecute All Offences

The DPP has the authority to prosecute all criminal offences on behalf of the State. This
power encompasses cases under the Penal Code and other statutes that create specific
offences. This ensures centralized control over public prosecutions.

2. Power to Appoint Prosecutors

The DPP can appoint individuals to act as prosecutors on their behalf. This allows flexibility
in managing the caseload and ensures that suitably qualified individuals can handle
prosecutions, especially in cases where specialized knowledge is required.

3. Power to Stop Prosecutions ("Nolle Prosequi")

Under Section 10 of the Act, the DPP can stop any prosecution before conviction, regardless
of whether the case was initiated by the DPP or another prosecutorial authority. This is often
referred to as entering a nolle prosequi. Key aspects include:

 Timing: The power can be exercised at any stage before judgment.

 Effect: The case is discontinued but not dismissed on its merits, allowing for re-
indictment if necessary.
 Independence: The decision is not subject to external control or court oversight.

4. Power to Order Release of Accused Persons

The DPP can order the release of individuals who have been committed for further
examination, trial, or sentencing. This ensures that cases without sufficient evidence or those
deemed unnecessary for prosecution are promptly resolved, preventing unwarranted
detention.
5. Power Over Private Prosecutions

The DPP has oversight over private prosecutions, which are allowed under specific
circumstances:

 A private prosecution can only proceed if the DPP declines to prosecute and issues a
certificate confirming this decision.
 The DPP retains the right to intervene in private prosecutions at any stage, taking over
the case and conducting it as a public prosecution.

6. Referral of Points of Law to the Court of Appeal

Under Section 336(1), the DPP can refer decisions or rulings on points of law made by the
High Court to the Court of Appeal. This power is used to:

 Resolve doubts about the correctness of legal rulings.

 Clarify important legal questions for the guidance of all courts in Botswana.
This ensures consistency and development of the legal framework.

7. Power to Prosecute Specific Offences

In addition to general offences under the Penal Code, the DPP prosecutes offences created by
specific statutes, such as corruption-related crimes under the Corruption and Economic
Crime Act, and breaches of by-laws enacted by local councils.

8. Oversight of Delegated Prosecution Powers

The DPP can delegate prosecutorial powers to bodies such as the Botswana Police or the
Directorate on Corruption and Economic Crime (DCEC). These bodies are usually authorized
to prosecute minor offences. However:

 The DPP retains ultimate control and supervision over all prosecutions.
 Delegated bodies do not require the DPP's further approval to withdraw charges once
delegated authority is granted.

9. Miscellaneous Powers

Other powers include:

 Conducting inquests into unnatural deaths.

 Providing legal advice on criminal matters to the government and other agencies.
  Educating the public and law enforcement on prosecution-related issues.

Key Case References

Several cases illustrate the application of these powers:

 State v Seeletso: Clarified the effect of a nolle prosequi and its procedural
requirements.
 State v Ngwako: Highlighted the necessity of obtaining prosecutorial consent for
private prosecutions.
 State v Malan: Used the referral process to resolve a legal dispute about costs in
criminal cases.

Through these provisions, the Criminal Procedure and Evidence Act ensures that the DPP
can exercise comprehensive and independent control over criminal prosecutions, contributing
to an efficient and fair criminal justice system in Botswana.