CHAPTER 58:03
BOTSWANA EXAMINATIONS COUNCIL
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
PART II
Establishment of Examinations Council
3. Establishment of Council
4. Constitution and qualifications of Board of Council
4A. Directions by Minister
5. Powers and functions of Council
6. Seal of Council
7. Tenure of office
8. Filling of casual vacancy
9. Disqualification, removal and resignation
10. Disclosure of interest
11. Proceedings of Board
12. Committees of Board
13. Allowance for members
PART III
Administration
14. Chief Executive Officer of Council
15. Duties of Chief Executive Officer
16. Appointment of senior officers and other staff
16A. Appointment of Secretary of Board
PART IIIA
Registration of Examination Centres and Inspections
16B. Registration of examination centres
17. Authorised officers
17A. Ownership of examination papers or materials and associated scores
PART IV
Financial Provisions
18. Revenues of Council
19. Financial year
20. Accounts and audit
21. Annual report
PART V
General
22. Indemnity
23. Transitional provisions
24. Winding-up
25. Offences and penalties
26. Regulations
Act 11, 2002,
S.I. 81, 2002,
Act 21, 2019,
S.I. 128, 2019.
An Act to provide for the establishment of the Botswana Examinations Council to manage and conduct national examinations, to provide for its powers, duties and functions and for matters incidental thereto.
[Date of Commencement: 22nd November, 2002]
PART I
Preliminary (ss 1-2)
This Act may be cited as the Botswana Examinations Council Act.
In this Act, unless the context otherwise requires—
“authorised officer” means a person so designated under section 17;
“Board” means the Board established under section 4 of the Act;
[21 of 2019, s. 2(a).]
“candidate” means a person enrolled by the Council for purposes of sitting for an examination;
“Chairman” …
[21 of 2019, s. 2(b).]
“Chairperson” means chairperson of the Board appointed under section 4.
[21 of 2019, s. 2(a).]
“Chief Executive Officer” means the Chief Executive Officer of the Council appointed under section 14;
[21 of 2019, s. 2(a).]
“committee” means a committee of the Board appointed under section 12;
[21 of 2019, s. 2(d).]
“Council” means the Botswana Examinations Council established under section 3;
“examination centre” means a school, college, educational establishment, facility or an institution registered and accredited by the Council for the entry and registration of candidates to be examined by the Council under this Act;
[21 of 2019, s. 2(a).]
“examination malpractice” means an act which contravenes examination regulations;
“Executive Secretary” …
[21 of 2019, s. 2(c).]
“member” means a member of the Board appointed under section 4; and
[21 of 2019, s. 2(e).]
“technical and vocational education and training” means an education, training and learning programme which provides knowledge, skills and competencies relevant for employment or self-employment.
[21 of 2019, s. 2(a).]
PART II
Establishment of Examinations Council (ss 3-13)
(1) There is hereby established the Botswana Examinations Council.
(2) The Council shall be a body corporate with perpetual succession and a common seal, capable of suing and being sued in its own name and, subject to the provisions of this Act, of performing such acts as bodies corporate may by law perform.
4. Constitution and qualifications of Board of Council
(1) There is hereby established a Board of the Council which shall—
(a) be the governing body of the Council; and
(b) perform such functions as may be conferred on it under this Act.
[21 of 2019, s. 3.]
(2) The Board shall consist of 7 members, appointed by the Minister from amongst persons whom the Minister considers qualified by reason of their competence, knowledge and experience in the following areas—
(a) curriculum and educational measurement and evaluation;
(b) educational research;
(c) education and training;
(d) finance and audit;
(e) human resource management or related field;
(f) law; and
(g) law enforcement.
[21 of 2019, s. 3.]
(3) The Chief Executive Officer shall be an ex-officio member of the Board.
[21 of 2019, s. 3.]
(4) The Minister shall appoint the Chairperson of the Board and the Vice-Chairperson shall be elected by members from amongst their number.
[21 of 2019, s. 3.]
(5) The Minister may appoint other persons to sit on the Board as alternates to the substantive members of the Board appointed under subsection (2) excluding the Chairperson.
[21 of 2019, s. 3.]
(6) The alternate members appointed by the Minister under subsection (5) shall be appointed, if the Minister is satisfied that such persons meet the requirements for qualifications for members set out under subsection (2).
[21 of 2019, s. 3.]
(7) The Minister shall, by notice in the Gazette, publish the appointment of members and their alternates, specifying the dates of their appointment and the period for which they are appointed to the office of the Board.
[21 of 2019, s. 3.]
(1) The Minister may give the Board directions of a general or specific nature regarding the exercise of its powers and the performance of its functions under this Act.
[21 of 2019, s. 4.]
(2) The directions given under subsection (1) shall not be inconsistent with this Act or with the contractual or other obligations of the Council.
[21 of 2019, s. 4.]
(3) The Board shall give effect to the directions given to it under this section.
[21 of 2019, s. 4.]
5. Powers and functions of Council
(1) The Council shall manage and conduct examinations and assessments in—
(a) general education; and
(b) technical and vocational education training.
[21 of 2019, s. 5.]
(2) The Council shall issue certificates in respect of examinations and assessments referred to under subsection (1).
[21 of 2019, s. 5.]
(3) Without prejudice to the generality of subsection (1), the Council shall—
(a) provide policy advice on assessment in education;
(b) withhold or cancel examination results of candidates involved in examination malpractice;
(c) award certificates to candidates in respect of examinations or assessments conducted under paragraph (a);
(d) develop standards for the conduct of examinations in all registered examinations centres;
(e) maintain standards in the system of examinations;
(f) generally attend to matters related to the conduct of examinations;
(g) develop examinations and assessments in general education, technical and vocational education and training;
(h) register and accredit examinations and assessments centres for general education or equivalent including centres for technical and vocational education and training;
(i) conduct regional and international comparability studies and other research relevant to its mandate;
(j) conduct training, registration and accreditation of examinations personnel;
(k) make rules regulating the conduct of examinations and assessments;
(l) in consultation with the Minister authorise the release of examination results; and
(m) perform such other functions as may be conferred on it.
[21 of 2019, s. 5.]
(1) The seal of the Council shall be such device as may be determined by the Council and shall be kept by the Chief Executive Officer.
[21 of 2019, s. 6.]
(2) The affixing of the seal shall be authenticated by the Chairperson and Vice-Chairperson or any person authorised in that capacity by a resolution of the Board.
[21 of 2019, s. 6.]
(3) Any contract or instrument which, if entered or executed by a person not being a body corporate, would not be required to be under seal, may be entered into or executed without seal on behalf of the Council by the Chairperson or any other person generally or specifically authorised by the Board to do so.
[21 of 2019, s. 6.]
(1) A member other than the Chairperson shall hold office for a period not exceeding three years as may be specified in the notice appointing him and at the end thereof he shall be eligible for re-appointment.
[21 of 2019, s. 7.]
(2) The Chairperson shall hold office for a period not exceeding five years and at the end thereof he shall be eligible for re-appointment.
[21 of 2019, s. 7.]
Where the office of a member becomes vacant before the expiry of the member’s term of office, the Minister may appoint another person to be member in place of that member who vacates office.
9. Disqualification, removal and resignation
(1) No person shall be appointed as a member or be qualified to continue to hold office as member who has—
(a) in terms of a law in force in any country—
(i) been adjudged or otherwise declared bankrupt or insolvent and has not been discharged; or
(ii) made an assignment, arrangement or composition with his creditors, which has not been rescinded or set aside;
(b) within a period of 10 years immediately preceding the date of his appointment, been convicted—
(i) in Botswana, of a criminal offence;
(ii) outside Botswana, of an offence which if committed in Botswana, would have been a criminal offence,
and sentenced by a court of competent jurisdiction to imprisonment for six months or more without the option of a fine, whether that sentence has been suspended or not, and for which he has not received a free pardon.
(2) The Minister may by notice in writing, remove a member from office where the member—
(a) is absent without reasonable cause from three consecutive meetings of the Board of which he has had notice;
[21 of 2019, s. 8.]
(b) is inefficient;
(c) has been found to be physically or mentally incapable of performing his duties efficiently and his medical doctor has issued a certificate to that effect;
(d) contravenes a provision of this Act or otherwise misconducts himself to the detriment of the objectives of the Board; or
[21 of 2019, s. 8.]
(e) has failed to comply with provisions of section 10.
(3) A member may resign from office by giving 30 days notice in writing to the Minister.
(4) The office of a member shall become vacant after—
(a) a period of 30 days from the date a ruling against the member is made on all appeals made in respect of charges levelled against him under subsection 1(b);
(b) a period of 30 days has elapsed from the date the member has given notice in writing to the Minister in accordance with subsection (3), of his intention to resign;
(c) a period of 30 days has elapsed from the date the member is given notice in writing by the Minister to vacate office; or
(d) a member is summarily dismissed by the Minister on the grounds of contravening a provision of this Act or for misconduct in accordance with subsection 2(d).
(5) For purposes of subsection (2), misconduct includes any act done without reasonable excuse by a member which—
(a) amounts to failure to perform in a proper manner any duty imposed on him as such;
(b) is prejudicial to the efficient conduct of the Board; or
[21 of 2019, s. 8.]
(c) tends to bring the Board into disrepute.
[21 of 2019, s. 8.]
(1) Where a member is present at a meeting of the Board or any committee of the Board at which a matter is the subject of consideration and in which matter he is directly or indirectly interested in a private capacity, the member shall, as soon as practicable after the commencement of the meeting, disclose such interest and shall not, unless the Board otherwise directs, take part in any consideration or discussion of, or vote on any question touching such matter.
[21 of 2019, s. 9.]
(2) A disclosure of interest made under subsection (1) shall be recorded in the minutes of the meeting at which it is made.
(3) Where a member fails to disclose his interest in accordance with subsection (1) and a decision by the Board is made benefiting such member, such decision shall be null and void.
[21 of 2019, s. 9.]
(4) A member who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding P5 000 or to imprisonment for a term not exceeding six months or to both such fine and imprisonment.
(1) Subject to the provisions of this Act, the Board may regulate its own proceedings.
[21 of 2019, s. 10.]
(2) The Board shall meet for the transaction of business at least three times in a year.
[21 of 2019, s. 10.]
(3) Upon giving notice in writing of not less than 14 days, a meeting of the Board may be called by the Chairperson and shall be called if not less than one half of the members so request in writing.
[21 of 2019, s. 10.]
(4) Where the urgency of any particular matter does not permit the giving of a notice in accordance with subsection (3), a special meeting may be called upon giving a shorter notice.
(5) The quorum at any meeting of the Board shall be one half of the members.
[21 of 2019, s. 10.]
(6) There shall preside at any meeting of the Board—
[21 of 2019, s. 10.]
(a) the Chairperson;
[21 of 2019, s. 10.]
(b) in the absence of the Chairperson, the Vice-Chairperson; or
[21 of 2019, s. 10.]
(c) in the absence of the Chairperson and Vice-Chairperson, such member as the members present may elect from amongst themselves for the purposes of that meeting.
[21 of 2019, s. 10.]
(7) A decision of the Board on any question shall be by the majority of the members present and voting at the meeting and, in the event of an equality of votes, the person presiding shall have a casting vote in addition to that person’s deliberate vote.
[21 of 2019, s. 10.]
(8) The Board may invite any person whose presence it considers necessary, to attend and participate in the deliberations of a meeting of the Board, but such person shall have no vote.
[21 of 2019, s. 10.]
(1) The Board may appoint such committees as it considers appropriate, consisting of its members or other suitably qualified persons.
[21 of 2019, s. 11.]
(2) The Board may delegate any of its powers, functions or duties under this Act, to a committee appointed under subsection (1).
[21 of 2019, s. 11.]
A member shall be paid, out of the funds of the Council, such allowance, as the Minister may from time to time determine.
[21 of 2019, s. 12.]
PART III
Administration (ss 14-16A)
14. Chief Executive Officer of Council
(1) The Minister shall, in consultation with the Board, appoint a Chief Executive Officer of the Council for a fixed contract period not exceeding five years, who may be eligible for re-appointment for a further period not exceeding five years.
[21 of 2019, s. 13.]
(2) A person shall not be appointed as Chief Executive Officer unless he possesses such experience and qualifications as the Minister may determine, and such person has demonstrated that he is competent to carry out the functions of the Council.
[21 of 2019, s. 13.]
(3) The Chief Executive Officer may resign from office by giving three months’ notice in writing, to the Minister through the Board.
[21 of 2019, s. 13.]
(4) The Minister may, in consultation with the Board, remove the Chief Executive Officer from office by giving him three months’ notice in writing, or by paying him three months’ salary in lieu of notice, if the Chief Executive Officer—
(a) conducts himself in a manner that is detrimental to the objective of, or the proper performance of the functions of the Council;
(b) has been found to be physically or mentally incapable of performing his duties efficiently by his medical doctor or psychiatrist, as well as an independent medical doctor or psychiatrist;
(c) becomes bankrupt or is declared insolvent by a court of law; or
(d) absents himself from office without reasonable excuse.
[21 of 2019, s. 13.]
(5) The Chief Executive Officer shall receive such remuneration, allowances and other benefits, as the Board, in consultation with the Minister, may determine.
[21 of 2019, s. 13.]
15. Duties of Chief Executive Officer
(1) The Chief Executive Officer shall, subject to such directions on matters of policy as may be given by the Board, be responsible for the day-to- day management of the affairs of the Council.
[21 of 2019, s. 14.]
(2) Without prejudice to the generality of subsection (1), the Chief Executive Officer shall be responsible for—
(a) the appointment, formation and development of an efficient administration of the Council;
(b) the organisation, control and management of all staff of the Council;
(c) the maintenance of discipline in respect of the staff of the Council;
(d) the carrying out of the decisions of the Board;
(e) the management of the support structure of the Council;
(f) all income and expenditure of the Council; and
(g) all assets of the Council and the discharge of all the liabilities of the Council.
[21 of 2019, s. 14.]
(3) The Chief Executive Officer may delegate, in writing, to any senior officer of the Council, the exercise of any powers which he is authorised to exercise under this Act.
[21 of 2019, s. 14.]
16. Appointment of senior officers and other staff
(1) The Board shall, on the recommendation of the Chief Executive Officer, appoint the senior officers of the Council.
[21 of 2019, s. 15.]
(2) The senior officers shall, under the direction of the Chief Executive Officer, assist the Chief Executive Officer in the proper administration and management of the functions and affairs of the Council, in accordance with the policies laid down by the Board.
[21 of 2019, s. 15.]
(3) The Chief Executive Officer shall appoint such other staff as may be necessary for the proper discharge of the functions of the Council.
[21 of 2019, s. 15.]
(4) The terms and conditions of employment of the staff of the Council including the senior officers shall be as may be determined by the Board, in consultation with the Minister.
[21 of 2019, s. 15.]
16A. Appointment of Secretary of Board
(1) The Board shall, on the recommendation of the Chief Executive Officer appoint a full time Secretary, who shall be suitably qualified and experienced.
[21 of 2019, s. 16.]
(2) The Secretary of the Board shall attend meetings of the Board but shall have no right to vote, and shall be responsible for the recording of the Board’s proceedings and decisions.
[21 of 2019, s. 16.]
(3) The Secretary of the Board shall, in the performance of his functions, be under the supervision of the Chief Executive Officer.
[21 of 2019, s. 16.]
(4) The conditions of service, including the remuneration package of the Secretary, shall be set by the Board, on the recommendation of the Chief Executive Officer.
[21 of 2019, s. 16.]
PART IIIA
Registration of Examination Centres and Inspections (ss 16B-17A)
[21 of 2019, s. 17.]
16B. Registration of examination centres
(1) The Council shall register and accredit examination centres for the entry and registration of candidates to be examined for purposes of this Act.
[21 of 2019, s. 17.]
(2) The Minister may make regulations on the requirements for the registration and accreditation of examination centres.
[21 of 2019, s. 17.]
(1) The Chief Executive Officer shall, in consultation with the Board designate such number of the staff as may be necessary to be authorised persons for purposes of inspecting premises for purposes of this Act.
[21 of 2019, s. 18.]
(2) An authorised officer—
(a) shall inspect premises before the premises are approved as an examination centre; and
(b) may enter at all times and inspect premises where—
(i) examinations are being conducted; or
(ii) there is cause to believe that examination malpractice is taking place.
(3) An authorised officer shall—
(a) confiscate equipment found on the premises used to facilitate examination malpractice; and
(b) write a report to the Council where upon an entry in accordance with subsection (2)(b), the authorised officer finds any form of examination malpractice.
(4) Each authorised officer shall be issued with an identity card, in a form to be prescribed, and shall have such identity card in his possession when performing any function under this Act.
(5) A person who obstructs an authorised officer in the discharge of his duties under this section commits an offence and shall be liable on conviction to a fine not exceeding P2 000 or to imprisonment to a term not exceeding one year, or to both such fine and imprisonment.
17A. Ownership of examination papers or materials and associated scores
(1) The Council shall be the sole proprietor of an examination paper or material, and the scores associated with the examination paper or material used in an examination under this Act.
[21 of 2019, s. 19.]
(2) A person, other than a person duly authorised by the Council, shall not issue an examination paper or material, and the scores associated with the examination paper or material.
[21 of 2019, s. 19.]
(3) A person who contravenes this section commits an offence and is liable to a fine not less than P200 000 but not exceeding P500 000 or to imprisonment for a term not exceeding 10 years, or to both.
[21 of 2019, s. 19.]
PART IV
Financial Provisions (ss 18-21)
(1) The revenues of the Council shall consist of—
(a) moneys appropriated by the National Assembly for the purposes of the Council;
(b) fees that the Council may charge for services it may render;
(c) grants and donations that the Council may receive; or
(d) income that the Council may receive from rentals or sale of land, building or educational material.
(2) The Council shall use revenues acquired under subsection (1) to meet the costs incurred in its operations and shall use any surplus accrued for such purpose as it may determine, with the approval of the Minister.
The financial year of the Council shall be a period of 12 months ending on the 31st of March of every year.
(1) The Council shall keep and maintain proper accounts and records of accounts in respect of every financial year relating to the assets, liabilities, income and expenditure of the Council, and shall prepare, in each financial year, a statement of such accounts.
(2) The accounts of the Council in respect of each financial year shall, within three months of the end thereof, be audited by an auditor appointed by the Council.
(3) An auditor appointed under subsection (2) shall report in respect of the accounts for each financial year, in addition to any other matter on which the auditor considers it necessary to comment on, whether or not—
(a) the auditor has received all information and explanation which, to the best of the auditor’s knowledge and belief, were necessary for the performance of the auditor’s duties;
(b) the accounts and related records of the Council have been properly kept;
(c) the Council has complied with all the financial provisions of this Act with which it is the duty of the Council to comply; and
(d) the statement of accounts prepared by the Council was prepared on a basis consistent with that of the preceding year and represents a true and fair view of the transactions and financial affairs of the Council.
(4) The report of the auditor and a copy of the audited accounts shall, within 14 days of completion thereof, be forwarded to the Council by the auditor.
(1) The Council shall within a period of six months after the end of the financial year or within such longer period as the Minister may approve, submit, to the Minister, a comprehensive report on the operations of the Council during such year, together with the auditors report and the accounts audited under section 20.
(2) A report compiled in accordance with subsection (1) shall be laid in Parliament by the Minister within three months of receipt thereof.
PART V
General (ss 22-26)
No matter or thing done or omitted to be done by a member or staff of the Council shall, if the matter or thing is done or omitted to be done bona fide in the course of the operations of the Council, render a member or staff personally liable to an action, claim or demand.
(1) A member of the Council appointed before the coming into operation of this Act shall continue to hold office until the expiry of his appointment as specified in the member’s instrument of appointment.
[21 of 2019, s. 20.]
(2) The person appointed as an Executive Secretary before the coming into operation of this Act shall hold office as the Chief Executive Officer until the expiry of his appointment as Executive Secretary specified in his instrument of appointment.
[21 of 2019, s. 20.]
(3) The person described under subsection (2) shall be eligible for re-appointment as Chief Executive Officer in terms of section 14(1).
[21 of 2019, s. 20.]
(4) A person employed as a member of staff of the Council before the coming into operation of this Act shall continue to hold office as such subject to the person’s terms and conditions as specified in the person’s instrument of appointment.
[21 of 2019, s. 20.]
(5) The Minister may, by Order published in the Gazette, make such transitional arrangements as are necessary for the coming into operation of this Act.
[21 of 2019, s. 20.]
The Council shall not be wound-up except by authority of an Act of Parliament.
A person who—
(a) steals an examination paper or material;
(b) receives an examination paper or material obtained under paragraph (a) and knowing the same to be stolen;
(c) reveals the contents of an examination paper or material to an unauthorised person;
(d) with intent to pass or fail a candidate, alters the work, data, information or scores of the candidate;
(e) attempts to impersonate or impersonates a candidate;
(f) forges a certificate;
(g) wilfully or maliciously damages an examination paper or material; or
(h) is involved in any form of examination malpractice,
commits an offence and shall be liable on conviction to a fine not less than P200 000 but not exceeding P500 000 or to imprisonment for a term not exceeding 10 years, or to both.
[21 of 2019, s. 21.]
(1) The Minister may, following consultation with the Council, make regulations prescribing anything under this Act which is to be prescribed or which is necessary or convenient to be prescribed for the better carrying out of the objects and purposes of this Act, or to give force and effect to its provisions.
(2) Without prejudice to the generality of subsection (1), regulations may provide for—
(a) examination fees and other charges under the Act;
(b) conditions for the award of certificates;
(c) qualification and disqualification of candidates;
(d) approval and registration of examination centres;
(e) withholding or cancellation of examination results;
(f) any other matter relating to the conduct of examinations;
(g) financial procedures of the Council;
(h) procedures to be followed by authorised officers; and
(i) the requirements for designating staff as authorised officers for purposes of the Act.
[21 of 2019, s. 22.]