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Published online by Cambridge University Press: 20 March 2020
This article explores why Botswana's environmental protection regulatory framework is failing to stem environmental deterioration. Based on the observation that such deterioration persists despite the fact that there is a framework in place, the discussion draws from experience with successful environmental protection regulatory frameworks around the world. The discussion establishes that successful environmental protection regulatory frameworks incorporate numerical quality and ecological standards, a command and control approach (with context-sensitive alternatives to account for the approach's limitations), and credible enforcement mechanisms. This article measures the extent to which Botswana's environmental protection regulatory framework incorporates these elements; it identifies that the reason why the framework has failed to stem environmental deterioration is that it does not adequately incorporate these qualities and proposes how this could be addressed going forward.
Senior lecturer, Department of Law, Faculty of Social Sciences, University of Botswana.
1 See: Ministry of Finance “Republic of Botswana: National development plan 11 (April 2017 – March 2023)” (2016), para 7.5; Wiston, M“Commentary: Status of air pollution in Botswana and significance to air quality and human health” (2017) 15/7Journal of Health and Pollution 8CrossRefGoogle Scholar. See K Jefferis and B Kenewendo “Botswana country overview 2012/13”, available at: <http://econsult.co.bw/tempex/BOTSWANA%20COUNTRY%20&%20ECONOMIC%20OVERVIEW%202012.pdf> (last accessed 2 February 2020).
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3 UN General Assembly, UN Conference on the Human Environment, resolutions adopted on the reports of the second committee, 15 December 1972, UN doc A/RES/2994, available at: <https://www.refworld.org/docid/3b00f1c840.html> (last accessed 2 February 2020).
4 UN doc A/CONF.151/26 (vol I) 31 International Legal Materials 874 (1992).
5 Baldwin, Cave and Lodge Understanding Regulation, above at note 2 at 37–38. McEldowney and McEldowney Environmental Law, above at note 2 at 3. F Giner “Environmental regulation and standards, monitoring, inspection, compliance, and enforcement”, available at: <http://siteresources.worldbank.org/INTRANETENVIRONMENT/Resources/GuidanceNoteonEnvironmentalRegulationandStandardsupdate.pdf> (last accessed 2 February 2020). Reviews of Regulatory Reform: Regulatory Policies in OECD Countries (2002, Organisation for Economic Co-operation and Development (OECD)), annex II, available at: <https://www.oecd.org/gov/regulatory-policy/35260489.pdf> (last accessed 2 February 2020).
6 McEldowney and McEldowney Environmental Law, above at note 2 at 3, 10 and 12.
7 UN Department of Economic and Social Affairs “Indicators of sustainable development: Guidelines and methodologies” (3rd ed, 2007), available at: <https://sustainabledevelopment.un.org/content/documents/guidelines.pdf> (last accessed 2 February 2020).
8 McEldowney and McEldowney Environmental Law, above at note 2 at 5 and 11.
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12 Elworthy and Holder, ibid. J Dikgang and M Visser “Behavioural response to plastic bag legislation in Botswana” (Environment for Development discussion paper series, May 2010), available at: <http://www.rff.org/files/sharepoint/WorkImages/Download/EfD-DP-10-13.pdf> (last accessed 2 February 2020). “Botswana” in Southern African Institute for Environmental Assessment SADC Environmental Legislation Handbook 2012, 67, available at: <http://saiea.com/dbsa_handbook_update09/pdf/4Botswana09.pdf> (last accessed 2 February 2020).
13 Bell, McGillivray and Pedersen Environmental Law, above at note 9; Cole, DH and Grossman, PZ “When is command and control efficient? Institutions, technology, and the comparative efficiency of alternative regulatory regimes for environmental protection” (1999) Wisconsin Law Review 887Google Scholar; Fisher, E, Pascual, P and Wagner, W “Understanding environmental models in their legal and regulatory context” (2010) 22 Journal of Environmental Law 251CrossRefGoogle Scholar; Ogus, A “Nudging and rectifying: The use of fiscal instruments for regulatory purposes” (2006) Legal Studies 245Google Scholar; Macrory, R “Regulating in a risky environment” (2001) 54 Current Legal Problems 619CrossRefGoogle Scholar; and N Gunningham and D Sinclair “Designing smart regulation” (1998), available at: <http://www.oecd.org/environment/outreach/33947759.pdf> (last accessed 2 February 2020).
14 Elworthy and Holder Environmental Protection, above at note 11 at 299.
15 Bell, McGillivray and Pedersen Environmental Law, above at note 9. Lofton, JA “The impact of cultural values and attitudes on social regulation” (2001) Environmental Liability 167Google Scholar. Baldwin, Cave and Lodge Understanding Regulation, above at note 2 at 227–95. Ogus, A and Abbott, C “Sanctions for pollution: Do we have the right regime” (2002) 14/3Journal of Environmental Law 281CrossRefGoogle Scholar. E Couzens “Enforcement of environmental law: Good practices from Africa, Central Asia, ASEAN countries and China” (2014), available at: <https://wedocs.unep.org/bitstream/handle/20.500.11822/9968/enforcement-environmental-laws.pdf?sequence=1&isAllowed=y> (last accessed 2 February 2020).
16 Baldwin, Cave and Lodge Understanding Regulation, above at note 2 at 43–45 and 107.
17 Ayres, I and Braithwaite, JResponsive Regulation (1992, Oxford University Press)Google Scholar at 25. Baldwin, Cave and Lodge, id at 259.
18 Baldwin, Cave and Lodge, ibid.
19 Newig, J “Does public participation in environmental decisions lead to improved environmental quality? Towards an analytical framework” (2007) 1/1International Journal of Sustainability Communication 51Google Scholar, available at: <https://nbn-resolving.org/urn:nbn:de:0168-ssoar-431965> (last accessed 2 February 2020).
20 Maripe, B “Development and the balancing of interests in environmental law: The case of Botswana” in Faure, M and Plessis, W du (eds) The Balancing of Interests in Environmental Law in Africa (2011, ABC Press) 49Google Scholar at 63–66.
21 Ministry of Finance “National development plan”, above at note 1, para 7.15.
22 Cap 65:03. See sec 15.
23 Cap 65:06, sec 6 (l). See also art 10(2) of the Basel Convention, which is domesticated in sched 1 of the act.
24 Cap 38:03, sec 11.
25 Ministry of Finance “National development plan”, above at note 1, paras 7, 7.2.4, 7.51–52 and 7.68. Maripe “Development”, above at note 20 at 60. “Botswana”, above at note 12. O Koboto Reform of Environmental Laws in Botswana: The Need for an Environmental Framework Act (LLM thesis, 2010) at 34, available at: <https://etd.uwc.ac.za/bitstream/handle/11394/3052/Koboto_LLM_2010.pdf?sequence=1&isAllowed=y> (last accessed 2 February 2020).
26 Cap 38:04.
27 Statutory instrument 16 of 2016.
28 Statistics Botswana “Botswana environmental statistics 2016”, available at: <http://www.statsbots.org.bw/sites/default/files/publications/BOTSWANA%20ENVIRONMENT%20STATISTICS%20REPORT%202016......pdf> (last accessed 2 February 2020).
29 Cap 38:01.
30 See, however, Wiston “Commentary”, above at note 1 at 11. Maripe “Development”, above at note 20 at 58–59; and Ministry of Finance “National development plan”, above at note 1.
31 Cap 38:03, part III.
32 Id, sec 11.
33 Botswana tries to do so through annual wildlife censuses but it falls to the director's discretion how these are used to establish quotas. See: SEA Kabaija “Wildlife statistics 2004” (2005, Central Statistics Office), available at: <https://docplayer.net/55197814-Wildlife-statistics-2004.html#show_full_text> (last accessed 2 February 2020).
34 “Botswana”, above at note 12.
35 Environmental Assessment Act, sec 2 recognizes the department as a “competent authority”.
36 See Ministry of Finance “National development plan”, above at note 1, paras 7.72–73 (on chemicals and waste management) and 7.76 (on species management).
37 NM Moleele and T Ntsabane “Environmental issues and management in Botswana: Have the national conservation plans worked?” (2002, Organisation for Social Science Research in Eastern and Southern Africa) at 12–17.
38 Cap 40:04. See sec 12.
39 See sec 11.
40 Cap 32:02. See sec 39.
41 See for example: Fire Service Act, sec 12; and Wildlife Conservation and National Parks Act, sec 79.
42 See: Waste Management Act, sec 13; Environmental Assessment Act, sec 4; and Wildlife Conservation and National Parks Act, part VII.
43 See: Town and Country Planning Act cap 32:09, sec 11; Waste Management Act, sec 13(7); Mines and Minerals Act, secs 19 and 20; and Environmental Assessment Act, sec 11. Maripe “Development”, above at note 20 at 66.
44 See: Atmospheric Pollution (Prevention) Act, sec 4; Waste Management Act, sec 41; Mines and Minerals Act, sec 6; and Environmental Assessment Act, secs 3 and 4.
45 Also, see: Waste Management Act, sec 42; and Wildlife Conservation and National Parks Act, sec 23.
46 For example: Atmospheric Pollution (Prevention) Act, sec 16; and Waste Management Act, sec 44.
47 Botswana government “Estimated development expenditure by project, 2017–2018”, available at: <http://www.gov.bw/globalassets/amfdp/budget-speeches/2016/development1718.pdf> (last accessed 2 February 2020). Statistics Botswana “Botswana environment statistics”, above at note 28. Ministry of Finance and Economic Development “2018/2019 budget strategy paper” (August 2017), available at: <http://www.gov.bw/contentassets/1c5907f150d144fa81fef3f1cbb72b8d/2018-19_draft_budget_strategy_paper.pdf> (last accessed 2 February 2020).
48 Seanama Conservation Consultancy “Botswana national report for the United Nations Conference on Sustainable Development (Rio+20)” (July 2012) at 23, available at: <https://sustainabledevelopment.un.org/content/documents/1006National%20Report%20-%20Botswana.pdf> (last accessed 2 February 2020).
49 Dikgang and Visser “Behavioural response”, above at note 12. “Collecting a can for money is back” (10 June 2013) Sunday Standard Botswana, available at: <https://www.sundaystandard.info/collecting-a-can-for-money-is-back/> (last accessed 2 February 2020).
50 Government of Botswana “Community based natural resource management policy” (government paper 2 of 2007).
51 See id, part 3.2.3.
52 Bell, McGillivray and Pedersen Environmental Law, above at note 9; Cole and Grossman “When is command and control”, above at note 13; Fisher, Pascual and Wagner “Understanding environmental models”, above at note 13; Ogus “Nudging”, above at note 13; Gunningham and Sinclair “Designing smart regulation”, above at note 13; Macrory “Regulating in a risky environment”, above at note 13; Ministry of Finance “National development plan”, above at note 1, para 7.56; and G Hepburn Alternatives to Traditional Regulation (OECD report), available at: <https://www.oecd.org/gov/regulatory-policy/42245468.pdf> (last accessed 2 February 2020).
53 “Botswana”, above at note 12. MC Kalikawe “Botswana: Integrating biodiversity into the tourism sector” (paper presented at the UNEP international workshop on best practices and country case studies, Mexico City, 29–31 March 2001).
54 See sec 12.
55 See sec 79.
56 See part IIE.
57 See: Mines and Minerals Act, secs 84 and 42. Also see: Waste Management Act, secs 21 and 22; Wildlife Conservation and National Parks Act, sec 41; and Environmental Assessment Act, sec 15. Bell, McGillivray and Pedersen Environmental Law, above at note 9; Lofton “The impact of cultural values”, above at note 15.
58 Cap 66:01.
59 Maripe “Development”, above at note 20 at 62. “Botswana”, above at note 12.
60 There is no explicit environmental right in Botswana's Constitution (chap 1 of 1966). The public's rights are derived from other rights, such as the right to life, or from common law environmental rights such as those secured through the law of delict. Maripe “Development”, above at note 20 at 54–58. Koboto Reform of Environmental Laws, above at note 25 at 25.
61 See Environmental Assessment Act, secs 7, 10 and 11. Also see Environmental Assessment Regs 2012, sec 9.
62 See ibid.
63 Waste Management Act, sec 42.
64 Wildlife Conservation and National Parks Act, sec 42; Waste Management Act, sec 27; Fish Protection Regs, 2016, reg 15; Fombad, CM and Pfumorodze, JThe Law of Delict in Botswana (2019, Kluwer International)Google Scholar at 151.
65 Moleele and Ntsabane “Environmental issues”, above at note 37 at 12–13. Baldwin, Cave and Lodge Understanding Regulation, above at note 2 at 43–45 and 107. See SE Fink “Environmental law in a developing country: Botswana” (2000, LLM dissertation) at 5, available at: <http://uir.unisa.ac.za/bitstream/handle/10500/16784/dissertation_fink_se.pdf?sequence=1&isAllowed=y> (last accessed 2 February 2020).
66 See, for example, fire officers under the Fire Service Act, sec 4; wildlife officers under the Wildlife Conservation and National Parks Act; forest officers under the Forest Act, sec 2; and authorized officers under the Waste Management Act.
67 World Bank “Botswana: Enhancing environmental sustainability in the implementation of the NDP10 (draft policy note, October 2010)”, available at: <114https://www.car.org.bw/wp-content/uploads/2016/06/Botswana-Environment-Policy-Note-October2010-final.pdf> (last accessed 2 February 2020).
68 Baldwin, Cave and Lodge Understanding Regulation, above at note 2 at 43–45 and 107.
69 Koboto Reform of Environmental Laws, above at note 25 at 25. Maripe “Development”, above at note 20 at 63–66. Baldwin, Cave and Lodge Understanding Regulation, above at note 2 at 43–45 and 107.
70 World Bank “Botswana”, above at note 67.
71 Ministry of Finance “National development plan”, above at note 1, para 7.6.
72 See, Constitution of Botswana, sec 12(b), which allows the withholding of information held in confidence. See also the conditions attached to the disclosure of information under Atmospheric Pollution (Prevention) Act, sec 13.
73 Ministry of Finance “National development plan”, above at note 1, para 7.11.
74 Waste Management Act, sec 42.
75 Attorney General v Mwale (CACGB-096-14, CACGB-076-15) (2015) BWCA 1 (26 August 2015); Botswana National Front v Attorney General [1994] BLR 385; Attorney General v Unity Dow [1992] BLR 119; Tsogang Investments (Pty) Ltd v Phoenix Investments [1989] BLR 512.
76 Newig, J and Fritsch, O “Environmental governance: Participatory, multi-level-and effective?” (2009) 19/3Environmental Policy and Governance 197CrossRefGoogle Scholar at 200 and 205–06.
77 Ministry of Finance “National development plan”, above at note 1, paras 7.56 and 7.64.
