BOTSWANA’S PROFILE ON IMPLEMENTATION OF PRINCIPLE … · Botswana’s Profile on Implementation of Principle 10 of Rio Declaration December 2010 Department of Environmental Affairs,

BOTSWANA’S PROFILE ON IMPLEMENTATION OF PRINCIPLE 10

OF RIO DECLARATION

Prepared: Department of Environmental Affairs Phone: 267 3902050 Fax: 267 3902051

P/Bag 0068 Gaborone

Botswana

Botswana’s Profile on Implementation of Principle 10 of Rio Declaration December 2010

Department of Environmental Affairs, P/Bag 0068, Gaborone i

TABLE OF CONTENTS Chapter1: Background Information………………………………………………………...17

Background……………………………………………………………………………….…….17

Objectives of the study………………………………………………………………………...18

Chapter 2: Political System and State Institutions…………………………………...…...19

2.1 The Constitution: Human and Environmental Rights………………………………....19

2.2 Type of Political System and Democracy………………………………………………..21

2.3 Level of Government………………………………………………………………………24

2.4 Legislature and Other Elected Bodies…………………………………………………..24

2.5 The Executive and Administration……………………………………………………....27

2.6 Judiciary System…………………………………………………………………………...29

2.7 Selected Environmental Legislation…………..………………………………….………31

2.8 Environmental Impact Assessment Act, 2005...……………………………….………...31

2.8.1 Authorities…………………………………………………………………………..……32

2.8.2Activities to which the Act Applies-Sec.3 (1)…………………………………………..32

2.8.3 Such Regulations Shall Prescribe-Sec 3(2)………………………………………..……33

2.8.4 Undertaking an Activity Sec. 4(1)………………………………………………………33

2.8.5 Preparation of Environmental Impact Assessment Documentation-Sec. 6-7…...…33

2.8.6 Appeals-Sec 15………………………………………………………………………...….34

2.8.7 Decision Making by Competent Authority- Sec 19………………………………..….34

2.8.8 Right of Resource to the High Court- 22(1)……………………………………………35

2.8.9 Locus Standi- 22(2)……………………………………………………………………….35

2.8.10 Weakness in the EIA Act, 2005………………………………………………………...36

2.9 Waste Management Act, 1998………………………………………………………...…..36

2.9.1 Laws Regulating Pollution Control and Waste Management…………………….....36

2.9.2 Objectives: (see head note to the Act)………………………………………………….37

2.9.3 The Regime Established by the Act……………………………………………….……37

2.9.4 Agencies of Waste Control…………………………………………………………...…38


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2.9.5 Waste Regulation Authorities…………………………………………………………..38

2.9.6 Waste Disposal Authorities……………………………………………………………..39

2.9.7 Duty of Care- Sec 51……………………………………………………………………..40

2.9.8 Waste Management Licensing System………………………………………………...40

2.9.9 Appeals…………………………………………………………………………………....41

2.10 Laws Regulating Land Use and Planning………………………………………..…….42

2.11 Town and Country Planning Act; Cap 32:09…………………………………………..42

2.11.1 Planning Authorities……………………………………………………………...……43

2.11.2 Central Administration………………………………………………………..……….43

2.11.3 The Town and Country Planning Board………………………………………….….43

2.11.4 The Functions of the Board are:-5(3)……………………………………………….…43

2.11.5 Decision Making…………………………………………………………………….….44

2.11.6 Consultation……………………………………………………………………………..44

2.11.7 Publication of Notice………………………………………………………………...…44

2.11.8 Objections to the Plan…………………………………………………………………..44

2.11.9 Minister’s Decision………………………………………………………………….….45

2.12 Tribal Land Act; Cap 32:02………………………………………………………………45

2.13 Wild Life Conservation and National Parks Act ……………………………………...46

2.13.1 Authorities………………………………………………………………………………46

2.13.2 Declaration of National Parks…………………………………………………………46

2.13.3 Appeals…………………………………………………………………………………..47

2.14 Forest Act: Cap:38.03…………………………………………………………………..…48

2.14.1 Authorities……………………………………………………………………………....48

2.14.2 Power of President to Declare Forest Reserve……………………………………….48

2.14.3 Application by Local Authority. Sec 5(1), (2)………………………………...………48

2.15 The Atmospheric Pollution (Prevention) Act; Cap 65:03………………………….….49

2.15.1 Controlled Areas……………………………………………………………………..…49

2.15.2 Appeals………………………………………………………………………….……….49

2.15.3 Auxiliary Powers of the Minister…………………………………………………..…50


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2.15.4 Penalties………………………………………………………………………………….50

2.15.5 Ozone Layer and Global Warning……………………………………………….……51

2.15.6 Compliance with International Conventions……………………………………...…51

2.15.7 Weaknesses of the Act………………………………………………………………….52

2.16 Laws Regulating Water Rights………………………………………………….……....52

2.17 Water Act, Cap 34:01………………………………………………………………..……53

2.17.1 The Regime of the Act…………………………………………………………….……53

2.17.2 Revision of Rights……………………………………………………………..………..53

2.17.3 Suspension………………………………………………………………………………53

2.17.4 Variation…………………………………………………………………………………54

2.17.5 Appeals…………………………………………………………………………………..54

2.18 Water Works Act (Cap34:03)…………………………………………………………….55

2.19 Monuments and Relics Act- cap 59:03………………………………………………….55

2.20 Mines and Minerals Acts- Cap 66:01……………………………………………………57

2.20.1 Application for Prospecting License-Sec.13………………………………………….57

2.20.2 Wasteful Mining and Treatment Practices-46……………………………………..…57

2.20.3 Compensation for Disturbance of Rights-63………………………………………....57

2.20.4 Rehabilitation, Reclamation-65………………………………………………………..58

Chapter 3: National Study on Principle 10…………………...……………………….........59

3.1 National Survey……………………………………………….……………………………59

3.2 Methodology………………………………………………………….…………………….60

3.3 Research Design……………………………………………………………………………60

3.3.1 Sampling Procedure……………………………………………………………………..60

3.3.2 Data Analysis……………………………………………………………………………..63

3.4 Access to Information about the Environment and Environmental Decision Making

Processes of the State………………………………………………………….……………….66

3.5 General Access to Information Legislation and Policies……………………………….66

3.6 Access to Environmental Information………………………………………..………….66

3.7 Access to Legislation…………………………………………………………….………...68


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3.8 Law Enforcement…………………………………………………………….………...…..68

3.9 Institutions……………………………………………………………………….…………69

3.10 Data Availability from Private Sector……...…………………………………..……….69

3.11 Information about Environmental Decision- Making Processes of State

Institutions………………………………………………………….…………………………..69

3.12 Access to Environmental Information Held by Government ………………………..70

3.13 Environmental Data Held by Industry and Private Sector Parties…………………..73

3.14 Inventory of Used Radiation Sources…………………………………………..………73

3.15 Analysis and Assessment……………………………………………………….……….74

3.16 Suggest from the General Public on Access to Environmental Information……..…75

3.17 Overall Conclusion on Access to Environmental Information……………………....76

Chapter 4: Public Participation in Environmental Decision- Making………….……...77

4.1 Public Participation…………………………………………………………………..…….77

4.2 Public Participation in Formulation of Policies, Programs and Plans……...………...78

4.3 Stages of Involvement in Formulation of Policies/Plans and Programs……….…….82

4.4 Forum used for Public Consultation……………………………………………………..83

4.5 Public Concerns……………………………………………………………………..…...…85

4.6 Public Participation in Formulation of Environmental Legislations………………….87

4.7 Stages of Public Involvement………………………………………………………..……88

4.8 Forum used for Public Consultation…………………………………………….……….89

4.9 Who participates more?.......................................................................................................90

4.10 How is participation-Good, Satisfactory or Poor…………………………...…………91

4.11 Project Specific Environmental Decision Making……………………………………..93

4.12 Public Participation in Executive and Administrative Decision Making…………...95

4.13 Public Participation in the Development of National Positions for International

Negotiations and Policy Processes…………………………………………………………...97

4.14Analysis and Assessments……………………………………………………………….98

4.15 Suggestion on Public Participation by the General Public………………………..….98


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4.16 Overall Conclusion on Public Participation in Environmental Decision Making...100

Chapter 5: Access to Justice in Enforcement of National Environmental Law………101

5.1 Access to Justice…………………………………………………………………………..101

5.2 Access to Justice in Matters of Administrative Law Enforcement………………......102

5.3 Access to Justice in Matters of Criminal Law Enforcement…………………………..104

5.4 Access to Justice in Matter of Private/or Civil Law Enforcement……………..…….106

5.5 Access to Justice in Matters Constitutional Law…………………………………..…..106

5.6 Alternative Dispute Resolution………………………………………………………....107

5.7 Situational Analysis of Selected Court Decisions……………………………………...109

5.8 Approaches in other Countries in the Region………………...…………………….....113

5.9 The International Perspective In Access to Justice…..………………………...………115

5.10 Right to life from an Environmental Law Perspective………………….………...…119

5.11 Strengths and Capacity Needs…………………………………………………………121

5.12 Activities of Environmental NGOs………………………………………………........121

5.12.1 Strengths………………………………………………………………………………..122

5.12.2 Challenges……………………………………………………………………….……..122

5.13 Suggestions from the General Public on Access to Environmental Justice………..123

5.14 Recommendations/Action Items……………………………………………………...124

5.15 Overall Conclusion……………………………………………………………………...126

Chapter 6: Implementation of Procedural Environmental Rights for Specific

Environmental Sectors and Problem Areas………………………………………….…...127

6.1 Introduction……………………………………………………………………………….127

6.2 Chemical Management…………………………………………………………………..127

6.3 Nuclear Energy……………………………………………………………………………128

6.4 Botswana and Climate Change…..……………………………………………………...130

6.5 Energy Resources…………………………………………………………………………137

6.6 Biodiversity and Nature Protection………………………………………………….…143

6.7 Department of Town and Regional Planning……………………………………….…152


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6.8 Department of Waste Management and Pollution Control…………………..………155

Chapter 7: Non- Governmental groups involved in Environmental Decision -making

7.1 Introduction……………………………………………..…………………………...……157

7.2 Legislative Recognition and Enabling of the NGOs in Botswana…………………...161

7.3 Organization of NGOs in Botswana………………………………………………….…164

Chapter 8: Evaluation of Existing Capacities and Capacity Constraints to Implement

Principle 10 of the Rio Declaration………………………………………………………...168

8.1 Introduction……………………………………………………………………………….168

8.2 Summary Evaluation of Existing Capacities Related to Access to information……168

8.3 Summary Evaluation of Existing Capacities Related to Public Participation………169

8.4 Summary Evaluation of Existing Capacities Related to Access to Justice…………..170

Chapter 9: Opportunities for Taking Action and Targeted Capacity Building…...…171

9.1 Action Plan………………………………………………………………………………...171

References……………………………………………………………………………………..175

Appendix 1………………………………………………………………………………….......a Appendix 2 Case Study 1……………………………………………………………………...c Appendix 2 Case Study 2……………………………………………………………………….o


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List of Figures Figure 3.1: Principle 10 Initiative surveyed areas (draft)

Figure 3.2: Stakeholders who participated in the survey

Figure 3.3: Evaluation of accessibility of information in districts

Figure 4.1: Evaluation of public involvement in policies/plans and programs

Figure 4.2: Evaluation of public involvement in by civil status

Figure 4.3: Evaluation of public involvement by district

Figure 4.4: Evaluation of stages of public involvement

Figure 4.5: Forums used for public consultation

Figure 4.6: Evaluation of public concerns in decision making

Figure 4.7: Evaluation of public concerns in decision making by civil status

Figure 4.8: Evaluation of public participation in formulation of environmental

legislation

Figure 4.9: Evaluation of public participation in formulation of Environmental

legislation by civil status

Figure 4.10: Stages of public involvement in formulation of Environmental Legislation

Figure 4.11: Evaluation of who participate most between men and women

Figure 4.12: Evaluation of who participate most between men and women by district

Figure 4.13: Public participation rating by civil status

Figure 4. 14: Public participation rating by district

Figure 4.15: Public participation in project specific decision making

Figure 4.16: Public concern by civil status

Figure 4.17: Evaluation of public participation in National Positions

Figure 5.1: Water Sector

Figure 5.2: Dry lands


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List of Tables Table 2.1: Constitutional Rights

Table 2.2: National parliamentary committees involved in environmental decision

making

Table 2.3: Linking types of disputes with court responsibilities

Table 3.1: Availability and accessibility of environmental data held by government

Table 3.2: Radiation Inventory

Table 3.3: Summary evaluation of access to information-Areas and Issues requiring

further attention and capacity building

Table 4.1: Chi-Square Tests Results

Table 4.2: Summary of public participation in executive decision-making

Table 4.3: Overview of non-judicial review opportunities

Table 4.4: Public Participation in Relevant National Process Concerned with

International Agreements and Processes

Table 5.1: Summary of Access to Justice in Administrative Law Enforcement

Table 5.2: Summary of Access to Justice in Criminal Law Enforcement

Table 5.3: Summary of areas of capacity constraints

Table 6.1: Policies, legislatures governing land uses in Botswana

Table 7.1: Summary Table of non-governmental groups

Table A: Evaluation of Public Participation within Districts


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Abbreviations AECB: Association of Environmental Clubs of Botswana

ARAP: Accelerated Rainfed Arable Programme

BCL: Bamangwato Concession Limited

BELA: Bangladesh Environmental Lawyers Association

BOCOBONET: Botswana Community Organizations Network

BOTASH: Botswana Ash

BPC: Botswana Power Corporation

BURS: Botswana Unified Revenue Services

CBNRM: Community Based Natural Resources Management Policy

CBOs: Community Based Organizations

CDM: Clean Development Mechanism

CFCs: Chloro-Floro Carbons

CITES: Convection on International Trade of Endangered Species

CWT: Chobe Wildlife Trust

DEA: Department of Environmental Affairs

DNA: Designated National Authority

DRP: Department of Radiation and Protection

DTRP: Department of Town and Regional Planning

DWNP: Department of Wildlife and National Parks

EAD: Energy Affairs Department

EIA: Environmental Impact Assessment

ESA: Electricity Supply Act

EWB: Environment Watch Botswana

H/C: High Court

INC: Initial National Communication

KAZA: Kavango-Zambezi

KDT: Kuru Development Trust


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KTP: Kgalagadi Trans-Frontier Park

NAMPAAD: National Master Plan for Arable Agriculture and Dairy

Development

NDP: National Development Plan

NGOs: Non Governmental Organizations

OPWT: Okavango Peoples Wildlife Trust

SADC: Southern African Development Community

SNC: Second National Communication

TFCAs: Trans-frontier Conservation Areas

UNDP: United Nations Development Programme

UNFCC: United Nations Framework Convention on Climate Change

UNITAR: United Nations Institute for Training and Research

VDCs: Village Development Committees

WMAs: Wildlife Management Areas


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EXECUTIVE SUMMARY

Principle 10 of the Rio Declaration states that “environmental issues are best handled with

the participation of all concerned citizens, at the relevant level. At the national level, each

individual shall have appropriate access to information concerning the environment that is

held by public authorities, including information on hazardous materials and activities in their

communities, and the opportunity to participate in decision-making process. States shall

facilitate and encourage public awareness and participation by making information widely

available. Effective access to judicial and administrative proceedings, including redress and

remedy, shall be provided”.

The Rio declaration on Environment and Development was adopted by 178

Governments, Botswana inclusive, at the United Nations Conference on Environment

and Development held in Rio de Janerio, 1992. The Principle 10 of the Rio Declaration

calls for public access to information, participation and justice in decision-making for

the environment. The Principle demands that, at the national level, each individual has

appropriate access to information about the environment held by public authorities,

including information on hazardous materials and activities in their communities, and

the opportunity to participate in decision-making processes. States should facilitate and

encourage public awareness and participation by making information widely available.

Effective access to judicial and administrative proceedings, including redress and

remedy, should also be provided.

NATIONAL PROFILE AND ACTION PLAN TO IMPLEMENT PRINCIPLE 10 OF

THE RIO DECLARATION

It was on this background that the Government of Botswana through the Ministry of

Environment, Wildlife and Tourism carried out a project to assess national situations

and capacities for implementation of Principle 10 of the Rio Declaration. This was

achieved with the financial and technical assistance from the United Nations Institute

for Training and Research (UNITAR). The National Profile provides an overview and

documents strengths and weaknesses of national access to information, public


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participation in decision-making and access to justice schemes related to environmental

matters.

The project started in September 2009. The stages in the development of the National

Profile included the establishment of Project Coordinating Committee, a National

Planning Workshop, nationwide surveys and consultations, case studies, National

priority Setting Workshop where national priorities were set and a National Action Plan

was developed. Seven districts out of ten were sampled and the stakeholders who

participated in the survey included central government, local government, privates

sector, civil society and local communities.

Access to Environmental Justice

The study showed that the Constitution of Botswana does not specifically make

mention of the right to the environment. Rather, environmental considerations are

subsumed in certain fundamental rights and freedoms such as the protection by the

law, the right to life, protection from deprivation of property and protection for the

privacy of the home. Moreover, there is no court specifically designated to determine

disputes with an environmental dimension although the study shows that criminal

proceedings with an environmental dimension are reasonably frequent in the courts.

The country has, however several fragmented pieces of environmental legislation that

range from those that regulate resource conservation and exploitation to those dealing

with waste management and air and water pollution. The main challenge of the existing

environmental laws is lack of effective implementation and monitoring.

Recommendations made after this study include amendment of the Constitution to

expressly provide for a right to a clean and safe environment, enactment of rights which

express participatory rights in the formulation of plans, policies and programmes, and

education and awareness.

Access to Information


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It is the mandate of the Government as per subscription to the Rio de Declaration to

ensure that the citizens receive reliable environmental information, and make it easily

accessible. Three different yet related areas of information that are considered relevant

are: environmental information (e.g. air emissions), information affecting the

environment (e.g. road planning) and information concerning legislative, executive and

administrative proceedings concerned with the environment. This concept enables the

public to participate in environmental decisions-making that affects their lives.

The study conducted on “Access to Information” component revealed that six out of

seven districts sampled affirmed that there was access to environmental information

although inadequate. Currently there is no law or regulation which binds public officers

holding information to release it to members of the pubic who seek for it. It was also

observed that there were no environmental information centres where the public could

easily access information. Moreover, the dissemination of information is often not

timely and regular. Obtaining information from companies is almost impossible unless

it is accessed through government departments’ records. It was thus recommended that

there be formulation of legislation which binds environmental information holders to

avail to the public. Furthermore simplification and vernacular interpretation of

technical environmental information, coupled with education and awareness, is likely

to enhance access to environmental information.

Public Participation in Environmental Decision-making Process

Public participation is a democratic process of engaging people in thinking, deciding,

planning and playing an active part in the development and operation of services that

affect their lives. The study evaluated public participation in formulation of policies,

plans, programmes and legislation. It also assessed the levels at which the public is

involved, the forums used and the extent to which the public views, concerns and

advice are taken into consideration when final decisions are made. The survey revealed

that about 73% of the respondents in all the seven districts highlighted that the public


Department of Environmental Affairs, P/Bag 0068, Gaborone xiv

was consulted during environmental decision-making processes. However, the level of

participation which is determined by factors such as public participation instruments,

capacity building activities, availability of information and the inclusiveness of the

participation process was rather unsatisfactory. Two case studies were conducted to

further evaluate public participation during decision-making process. The two case

studies were (i) formulation of Community Based natural Resource Management

(CBNRM) Policy of 2007 and (ii) the two EIA studies focused on the Land fill and the

New Xade access road, both in Ghanzi District. In both EIA case studies the levels of

public participation differed. For instance, there was minimal public participation

during the construction of the land fill (in 2001) but active public participation during

the construction of the access road (in 2009) probably due to the influence of the

Environment Impact Assessment of 2005 that makes consultations with interested and

affected parties mandatory. With regard to the CBNRM policy formulation process, the

public participated in the process. Again the level of participation in the stages of the

policy formulation process differed, with more participation at the

formulation/planning phase and minimal participation at the final/endorsement stage.

This correlates with the findings of the main survey that showed that the public mostly

participated at the implementation stage of policies and programs. Hence a concern that

most plans, policies and programmes are not understandable thus not widely

supported among the people.

The survey further showed that there were concerns of limited forums for public

participation (kgotla most widely used), public opinions not considered when decisions

are made, and no feedback from policy makers on why/why not the public’s concerns

were considered. As a result recommendations for Government to formulate a Public

Participation Act, enhance capacity building initiatives, and engagement of the public in

all stages of decision-making process were made.


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Setting of Priorities and the Action Plan

The surveys that began in February 2010 culminated in the compilation of the National

Profile. The National Profile provides a snapshot of the existing situation in the country,

including details of existing problems, programmes in place, responsible bodies and

officers, and ongoing activities. A national workshop was then held in November 2010

to endorse this profile and set national priorities and develop an Action Plan. The aim

of priority setting was to determine constraints and opportunities for capacity building.

This was done by first considering potential shortcomings and gaps (and strengths) in

the current situation as well as areas/topics which may warrant priority attention.

Based on the capacity constraints and opportunities for capacity building identified,

and action plan was developed.

Implementation of the Action Plan

It is important that the Action Plan is implemented for better handling of environmental

issues as per the Principle 10 of Rio Declaration. A critical prerequisite for successful

implementation is to achieve political and high-level support and will to implement the

action plan. Public support and acceptance are also of paramount importance. In

addition, proficient coordination is a key requirement. The coordination of Botswana’s

Action Plan activities to enhance the Rio Declaration Principle 10 (access to information,

access to justice and public participation) lies with the Ministry of Environment Wildlife

and Tourism. To achieve full effect, the Action Plan activities need to be incorporated

into both national and district/urban planning processes, with all eager and braced to

participate in the implementation process to strengthen Botswana’s performance in the

three objectives of Principle 10 of the Rio Declaration.

The Action Plan is the end product of 12 month long process and has involved the

participation of a great number of stakeholders from around the country. The

implementation of this Plan requires commitment and active engagement by all

stakeholders. The implementation timeframe of the Action Plan is 6 years in general


Department of Environmental Affairs, P/Bag 0068, Gaborone xvi

(2011-2016). The implementation period is aligned to the national Vision 2016 and the

National Development Plan 10(NDP10) although it starts two years after the Plan. NDP

10 makes good provision for environmental activities and most of these activities listed

in the Action Pan can be linked to provisions under NDP 10, and thus funding sources

for government implemented activities.


Department of Environmental Affairs, P/Bag 0068, Gaborone

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CHAPTER 1 BACKGROUND INFORMATION 1.1. Background

The Rio Declaration on Environment and Development was adopted by Heads of States

and Governments at the 1992 Earth Summit held in Rio de Janeiro in Brazil. Amongst

the outputs of the summit were Agendas 21 and 27. Several Principles were also

adopted and amongst these is Principle 10. Principle 10 addresses issues of citizen

participation in decision making processes on environment related matters. The

principle seeks to encourage countries to facilitate and encourage public awareness and

participation on environment related issues through provision of information that can

effectively enhance decision making processes at all levels. According to this Principle,

all the subscribing nations must ensure that each individual has appropriate access to

information about the environment held by public authorities, including information on

hazardous materials and activities in their communities, and the opportunity to

participate in decision- making processes. The states are obliged to encourage public

awareness and participation by making information widely available and provide

access to judicial and administrative including redress and remedy.

As a contribution to capacity development to strengthen access to information and

public participation in environmental decision- making in Africa, the United Nations

Institute for Training and Research (UNITAR) is providing support to three pilot

countries in Africa to develop a National Profile, set priorities and develop an Action

Plan to strengthen national capacities to implement Principle 10 of the Rio Declaration.

The goal of the pilot projects is to catalyze a multi-stakeholder process that assesses

existing capacities at national and local levels and to identify opportunities for targeted

capacity development.



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Botswana has been selected to participate in the pilot project on “Assessing and

strengthening national capacities for effective stakeholder engagement in

environmental management”.

This report presents the National Profile and Action Plan for the implementation of

Principle 10 of the Rio Declaration in Botswana. The country undertook a national

survey, reviewed current legislation and carried out two case studies in an effort to

assess and document the current status of access to environmental information, public

participation and access to justice.

1.2. Objectives

The broad objectives of this project are;

Describe and analyze provisions for access to environmental information.

Describe and analyze opportunities and procedure for the participation of the public in decision making.

Summarise and analyze procedural right for particular economic sectors and

environmental issues. Strengthen collaboration of government and stakeholders in assessing and taking

action on Principle 10 implementation. Since this is the first study in assessing the implementation of the Principle 10, it is

expected to form the basis for in-depth studies on the key areas of this principle.



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CHAPTER 2 POLITICAL SYSTEM AND STATE INSTITUTIONS

2.1. The Constitution: Human and Environmental Rights

Any discussion on the establishment of power relations in Botswana must begin with

the Constitution. As it establishes the important structures of the Presidency, Cabinet,

National Assembly, and Judiciary, it is only fitting to say that it is the basic law of the

land. Constitutions are usually the basic law of any state, yet in Botswana there is no

provision in the constitution which declares it as such. However, the courts have held

that the constitution is the basic law of Botswana, and have thus closed the lacuna

existing by reason of the absence of a clear provision that makes it the basic law of the

land: Dow v Attorney General [1992] BLR 119.

Chapter II of the Constitution, styled ‘Protection of Fundamental Rights and Freedoms

of the Individual’ provides for a Bill of Rights. It runs from section 3-19 and lists the

rights that the state is enjoined to protect, subject only to limitations recognized by law

and which are meant for the protection of the rights and freedoms of others. What

emerges from the Bill of Rights is the absence of any specific mention of the right to the

environment. However, in the Bill of Rights, there are certain fundamental rights and

freedoms under which it may be said environmental considerations are subsumed. For

example, the protection of the law under section 3, the right to life under section 4,

protection from deprivation of property under section 8, and protection for the privacy

of the home and other property under section 9. Thus the absence of a specific right or

freedom to the environment does not mean there is no legal protection at all. It exists

under the more general and wider rights. Additionally the common law recognizes the

significance of environmental considerations and it has been held that they fall under

the rights listed under chapter II (Sesana and Others v Attorney General [2006] 2 BLR 633).

The constitution provides for redress to people who allege violation of the rights set out

at sections 3-16 against themselves. It does so through section 18(1). Section 18 allows

for access to the High Court to a person who alleges a violation of the said rights or



20

freedoms against himself. Thus it is the person who invokes the jurisdiction of the

courts who must be aggrieved, and not any other person. This imports the notion of

locus standi which will be addressed later on. It should be pointed out that the High

Court does not have jurisdiction only in respect of matters in which fundamental rights

and freedoms are in issue. It has jurisdiction in respect of all matters as long as they

arise in Botswana. This point is significant in that even if it may be said matters of the

environment do not fall within the fundamental rights and freedoms protected under

the constitution, any person who suffers harm with an environmental dimension would

still be entitled to invoke the jurisdiction of the court on the basis of the other allowable

channel which permits the High Court to entertain matters of all kinds. Section 95 of the

Constitution gives the High Court ‘original, unlimited jurisdiction’.

In summary this would be the Constitutional scheme. Table 2 - 1 below shows some of

the rights specifically guaranteed under the constitution which may be used to protect

both the public and the environment.

Table 2-1: Constitutional Rights

Type of Human Rights

Relevant Constitutional Provision

Right to a (healthy) environment 3 Other human rights that can be used for the protection of the environment

Right to Health 3 Right to decent living and or working conditions 3, 9 Freedom of speech 12 Freedom of assembly 13 Right to privacy 3 Right to equal protection by the law 3 Procedural human rights that can be used in an environmental context;

Right to access to information 3, 12 Protection of personal data 3, 9 Protection of business, bank, insurance, medical secrecy etc 3, 9 Right to access to justice (natural and/or legal person); right to judicial remedy in case of administrative decisions

3, 18

Right to participate in decision-making process Nil



21

2.2. Type of Political System and Democracy

Section 1 of the Constitution of Botswana declares that Botswana is a sovereign

Republic. This means that the power to administer the country, or put plainly, to rule,

lies with the citizens of the country. While not all citizens can be said to be all rulers at

the same time, the system used is that of representatives selected through

democratically arranged elections. These elected representatives then constitute

themselves into a National Assembly, from which cabinet is then selected by the

President. The President and the National Assembly are collectively called the

Parliament. Cabinet advises the president on matters of policy of government as well as

other matters that the President may refer to cabinet for advice. However, in terms of

section 47, it is in the President that all executive power vests and it shall be exercised

by him/ her either directly or through officers subordinate to him.

Thus the system of government begins with the citizen through the exercise of the

franchise, which is provided for under section 67, as long as one meets the conditions

set out there under. Thus the constitution makes Botswana a multiparty democracy

resting on rule that is selected by the citizens themselves. Botswana is sometimes

described as a Parliamentary Democracy because the government is constituted by the

party with the majority (50% of the total number of seats plus one to be exact) number

of Members of Parliament at every point in time. Even the Presidency, in whom

executive power vests, is determined by the formula referred to above. Thus one could

say it is the identity of Members of Parliament, or the identity of their parties that

determines who is to rule, hence Parliamentary democracy. However, some have

argued that Botswana is a Presidential Democracy considering the fact that all executive

power vests with the President and he/she wields immense powers such as

appointment and dissolution of cabinet, dissolution of Parliament, issuance of writ of

elections, Commander in Chief of the armed forces, being the appointing authority for

various important positions including Judges of the High Court, Attorney General,



22

Permanent Secretaries, and a lot more others. In the exercise of his powers, the

President does not have to take advice from any quarter. He is even shielded or

immune from legal suits for acts done in his personal and private capacity; hence it is

considered a Presidential democracy. Yet there is another school that describes

Botswana as a Constitutional Democracy on the basis that the constitution as the

foundational document whose prescriptions must be followed without derogation save

only under permissible conditions spelt out there under. Since it creates all the

important organs of State, the system should be described in terms of the constitution. It

is fair to describe Botswana as a hybrid of the Parliamentary and Presidential systems as

she exhibits features of both to a greater or lesser degree. What is important is whether

there is observable adherence to principles of democracy. This is something that is

perhaps beyond the scope of this project.

As regards influence in environmental governance, the system operating is one that

establishes a bureaucracy responsible for various aspects of governmental affairs. The

constitution provides that the President shall himself exercise executive power or

through officers subordinate to him (section 47). These officers are constituted under the

constitution itself or through various pieces of legislation. For example, the

Environmental Impact Assessment Act provides for the office of the Director,

Environmental Affairs. Additionally, in terms of section 56 of the Constitution, the

President has the sole prerogative of constituting any office he thinks necessary for the

carrying out of any governmental function. It is in terms of this provision that many

offices in government have been created. In fact the offices of Waste Management and

Environmental Affairs predate the enactment of the Environmental Impact Assessment

Act. Other officers having a role to play include the Directors of Wildlife and National

Parks, Waste Management and Pollution Control, Geological Surveys, Mines, Town and

Regional Planning, Lands etc.



23

As alluded to above, there is no reference to a right to the environment in the

constitution. Any such claim will be founded on rights that are tangentially connected

with the environment. As already demonstrated, Table 2 - 1 demonstrates the various

are connections possible. Where a citizen complains of a violation of any of the rights

depicted at Table 2 - 1, the constitution provides a forum for redress. Section 18 of the

constitution enables that person to seek redress in the High Court. Thus at first instance

the High Court is the only forum through which grievances arising from possible

violations of fundamental rights and freedoms touching on environmental

considerations are addressed. Thus access is provided to the High Court.

As stated above, the constitution is not the only source of environmental rights. The

common law is another. In addition to these, Botswana is a signatory to several

international treaties, some of which she has ratified and in some cases domesticated

and incorporated into domestic law. It is the executive arm of government that

concludes and signs international treaties on behalf of the state of Botswana. Those

international agreements provide another source of environmental rights. For example

Botswana is party to the Convention on Biodiversity, the Convention on Trade in

Endangered Species (CITES), Basel Convention on Hazardous Wastes and many others.

Some of these, like the Basel Convention have been incorporated into domestic law

(through the Waste Management Act). Outside treaties that have become part of

Botswana by incorporation, those treaties not domesticated are also a source of rights

recognized by the courts of Botswana. The latter have held that any statutes or

instruments must be interpreted in a way that is in line with Botswana’s international

obligations. (Dow v AG [1992] BLR 119, Good v AG [2005] 2 BLR 333, Springbok

Investments (Pty) Ltd v Republic of Angola [2005] 2 BLR 159). In this way, international

treaties become a source of law in environmental matters.



24

2.3. Levels of Government Botswana is a unitary state with the central government having responsibility for the

whole territorial expanse of the country as well as all the peoples regardless of whatever

part of Botswana they happen to inhabit. The constitution establishes offices for the

whole country. The whole administration of the country is therefore carried out from

the centre, which is the capital city where the President resides and has his office.

However, due to logistical considerations, offices have been setup in various parts of

the country so as to ease delivery of services. These have been set up purely for

logistical reasons and for purposes of convenience and not as a matter of obligation.

This notwithstanding, a system of local administration of affairs has been in place since

independence in 1966. This was not demanded by the constitution but was brought into

place through legislation; the District Councils Act and the Townships Act. In terms of

these Acts, District or Town or City Councils are established in various areas to render

the same services that government would be under an obligation to deliver. A council

would usually have all the important departments necessary for the sustenance of life,

for example education, health, sanitation and town planning. In the environmental

field, such services as sanitation and forestry would be found in the local government

setup. Thus in general the national responsibilities have been cascaded down to local

authorities, with full powers of management and enforcement. The national

government however takes overall political responsibility for the activities of local

government.

2.4. Legislature and Other Elected Bodies In terms of section 86 of the constitution, Parliament has the power to make law for the

peace, order and good government of Botswana. This comprises elected representatives

and is charged not only with making laws but adopting policies as well for the running



25

of the country. As it is not feasible for every citizen to represent themselves in the

National Assembly, is the underlying assumption that the representative system covers

every citizen across the length and breadth of the country. The members of the National

Assembly are there on behalf of the people who got them there through the vote. In

enacting laws and adopting policies, the members of the legislature do so in a

representative capacity, the principals being the voters, the general citizenry. Thus this

is an indirect way in which the citizens participate in the governance of the country

through a process of enacting laws and making policies. This process is supplemented,

in principle, by the requirement that a bill is not to be introduced in Parliament unless it

has previously been publicized in the Gazette (section 89 (2)). This is to afford the

general public to see what law is intended to be passed, as well as to comment thereon.

Such comment, however, is to be through representatives since members of the public

do not have audience on the floor of Parliament. However, the public has free access to

Parliament and will generally listen to Parliamentary debates from the public gallery

specially availed for the purpose. So the upshot of this arrangement is that public

participation in legislative processes, and in particular that touching on the

environment is available in an indirect fashion.

The same happens with elected representatives at local government level. Councils are

empowered under the Local Government (District Councils) Act (Cap 40:01) and the

Townships Act (Cap 40:02) to make Bye-laws for the running of the various councils

over which they have jurisdiction. These bye-laws, styled Statutory Instruments are

made in like fashion as Parliamentary enactments, styled Acts. The Statutory

Instruments Act (Cap 01:05) makes requirements for publication for the same purposes

as those applying to Parliamentary enactments and additionally requires that they be

presented to the National Assembly for inspection. Again participation by the public is

indirect.



26

All laws, be they the Constitution, legislation or statutory instruments have legal force,

breach of which attracts legal censure. In matters with a bearing on the environment,

Parliament can have a role in enacting legislation, as it has done with the Environmental

Impact Assessment Act, and the impending Environmental Management Act, and it can

also adopt policies, as it has done with the Forestry Management and Tribal Grazing

Land Policies. In addition, Cabinet is also a large to make certain prescriptions, usually

styled directives, which have to be followed in the governance process.

As said above, representatives are selected through elections, in the exercise of the

citizen’s constitutional right of the franchise (section 67). So it is the constitution that

demands that there be elections at prescribed intervals. The procedure for elections is to

be found in the Electoral Act (Cap 02:09) which is the legislative vehicle for the

enjoyment of the constitutional right to the franchise. The electoral districts are

determined by a Delimitation Commission established under the Constitution (section

64). Its main purpose is to carve out election constituency boundaries and the

requirement is that “the boundaries of each constituency shall be such that the number

of inhabitants thereof is as nearly equal to the population quota as is reasonably

practicable” (section 65(2)). There are currently 57 constituencies. Each is represented

by one member who is the person who polled the highest number of votes during the

general elections. Through the First Past the Post system, the party in government is the

one that has, subject to the rider above, won the majority of seats or constituencies.

Once sworn in, Parliament immediately commences business.

Through the enactment of laws, adoption of policies or the adoption of motions,

Parliament controls and regulates virtually every aspect of public life. In the particular

case of the environment, Parliament can approve budgets, and withhold their assent or

even outvote environmentally unfriendly bills brought to Parliament for enactment.

However, Parliament has no say in the making or conclusion of international

agreements as that is considered the prerogative of the Executive. Parliament has a role



27

in domesticating those treaties. Table 2 – 2 list national parliamentary committees that

are involved in review of environment related legislations, policies and regulations. The

role of these committees is to advise the parliament on matters relating to the

environment.

Table 2 - 2: National parliamentary committees involved in environmental decision making

Name of Committee

Function

Law Reform Committee Review all legislation passed by the National Assembly

Health Committee Consider and recommend proposals for policies, regulations and laws relating to health

Agriculture and Environment Committee Consider and recommend proposals for policies, laws and regulations relating to agriculture and the environment, as well as to recommend laws and programmes for the harmonization of agriculture and environmental policies

Committee on population and development Advises Parliament on matters relating to the population, as well as population and development

Committee on Subsidiary Legislation, Government Assurances and Motions passed by the National Assembly

To advise Parliament on progress of implementation of motions and government assurances made on the floor of Parliament, and to determine compliance of subsidiary legislation with the parent Act etc

2.5. The Executive and Administration In terms of section 47 of the Constitution, all executive power in Botswana vests in the

President, and subject to the provisions of the Constitution, ‘shall be exercised by him

either directly or through officers subordinate to him’. In the exercise of his executive

functions, and in so far as the constitution has not provided otherwise, he is at liberty to

‘act in his own deliberate judgment and shall not be obliged to follow the advice

tendered by any other person or authority’ (section 47 (2) ). The manner of ascendance

to the office of the President has already been described above. As well, it has been

alluded to that the President has the power to create offices in the public service (section

56). There are indeed offices in the public service that have been constituted to manage

and deal with matters of the environment. Some of those have been spelt out above. In

recognition of the significance of environmental issues, the ministry that superintends



28

over these departments has been re-styled the Ministry of Environment, Wildlife and

Tourism (previously the wording did not have the word ‘environment’).

These departments, manned by personnel that is subordinate to the President, have the

primary responsibility of execution and implementation of environmental laws, policies

and programmes of government. Being manned by personnel with the requisite

expertise in environmental matters broadly, they also advise government on the best

policies and programmes and international best practices on environmental

conservation and management. By convention, custom and practice, in Botswana, draft

legislation in any sphere of human activity originates in the ministries. And in the

ministries, the expectation, and indeed custom, convention and practice is that it is the

relevant department that would have originated legislation. In environmental matters

therefore, it is the Department of Environmental Affairs that has the primary role of

originating legislation with an environmental dimension. Thus it is so centrally and

strongly positioned as it is not only duty bound to oversee the implementation of such

legislation and similar policies, but it would have originated them in any event. It

would know in advance what policies or legislation are in the making so that it gears

itself in readiness for implementation.

The above demonstrates the power axis especially as between the Political leadership

and the Civil Servants who man the various departments of the state. The former make

and adopt policies and law, and the latter implement. The establishment of the Civil

Service is different from that of the political leadership. Civil servants are

presumptively apolitical and are to serve the government of the day regardless of the

party in power. Although they can vote and even be members of political parties, they

are prohibited from openly associating with political parties. They are appointed on

merit, after a transparent process of open advertisement of job opportunities. The jobs

usually require minimum qualifications as they are specialized. Although they are

expected to exercise independent judgment in several matters within their areas of



29

competence, civil servants are nonetheless expected to fulfill their mandate in order to

advance or further the policies of the reigning political order.

2.6. Judiciary System

The constitutional framework of Botswana is based on a system of separation of power

between the three main organs of the legislature, executive and the judiciary. The first

two have already been discussed. The judiciary comprises the courts, whose primary

function is to adjudicate over disputes. At the centre of the judicature system is the

High Court, established in terms of section 95 of the Constitution with unlimited

original jurisdiction. Thus it can hear any matter without any limitations, whether as to

nature of dispute or the amount involved. However, it does have concurrent

jurisdiction with other courts that may be established to adjudicate over specific matters

such as the Industrial court. Notwithstanding its centrality, a party aggrieved by the

decision of the High Court has a right of appeal to the Court of Appeal established

under section 99 of the Constitution. There is also the Magistrates Court, which is

established by an Act of Parliament, the Magistrates Courts Act, Cap 04:02. It also forms

part of the Court system and adjudicates over civil disputes of a limited nature and at

any rate sounding in amounts of money of P40, 000.00 and below, and mostly criminal

matters as long as they are not specifically excluded from its jurisdiction by the

founding statute, which is the Magistrates Courts Act. A person aggrieved has a right of

appeal to the High Court, with a possibility of further progressing to the Court of

Appeal. Thus the relationship of the courts is hierarchical, with the Customary Court at

the lowest level, the Magistrates, High Court and Court of Appeal at the appeal.

Proceedings in all the courts are open to the public. Section 10(10) of the constitution

requires all proceedings to be held in public, unless the parties agree otherwise. The

court may also exclude the public or certain identified individuals in the interest of

justice or where the exigencies of public order, public morality, welfare of persons

under the age of 18 years, or the protection of private lives dictate. Although the



30

proceedings are open to the public, there is no system of formal announcement to the

public as to the nature of matters before court and the dates they will be heard. This

would usually be available only to the parties and their legal representatives who are

entitled to notices of dates of hearing issued from the court registry.

The judiciary is supposed to be independent and impartial, although reference to this

operational principle is found in a provision relating to criminal cases. Section 10

specifically provides that if one is charged with a criminal offence, his case shall be

heard within a reasonable time by an independent and impartial court. This is not however

a requirement limited to criminal cases as the courts operate by the same principles and

within the same constitutional framework. In fact the courts have on many occasions

set aside the decisions of public officers on review.

Judges of the High Court are appointed by the President acting in accordance with

advice given to him by the Judicial Service Commission established under sections 103

and 104 of the Constitution. Their conditions for employment are governed by an Act of

Parliament, the Judges Pensions Act and the Constitution itself. In terms of section 97

they can be removed from their positions only for inability to perform their functions by

reason of infirmity of body or mind or other cause. Thus the conditions for removal of

judges from offices are quite stringent. It is sometimes said therefore that once

appointed, judges enjoy tenure.

There is no court specifically designated to determine disputes with an environmental

dimension. The High court would usually entertain such disputes in the exercise of its

original unlimited jurisdiction as explained above. However, as the report indicates

elsewhere, criminal proceedings with an environmental dimension are reasonably

frequent in the courts, whether in the High court in the exercise of its appellate

jurisdiction or at first instance, or in the Magistrates Court as that court has concurrent

criminal jurisdiction with the High Court. The law applicable, apart from legislation, is



31

the Roman-Dutch common law, which is essentially a hybrid of Roman law and English

law. Table 2 - 3 links types of disputes with court responsibilities.

Table 2 - 3: Linking types of disputes with court responsibilities

Types of Disputes

Court of First Instance

Appeal Court

Review of rules and regulations prepared by the executive

High Court

Court of Appeal

Review of adjudicative administrative decisions High Court

Court of Appeal

Criminal offences Kgotla or customary /Magistrates court/High Court

High Court / Court of Appeal

Nuisance issues Customary court/Magistrates Court/High Court

Customary court of appeal/High Court/Court of Appeal

2.7. Selected Environmental Legislation This section highlights the salient provisions of selected environmental legislation. The

pieces of legislation range from those that regulate resource conservation and

exploitation to those dealing with waste management and air and water pollution. The

aim is to determine the extent to which these pieces of legislation facilitate or enhance

access to environmental justice, i.e. do they empower ordinary citizens to seek redress

in courts or other fora where they believe they would be harmed or prejudiced by the

intended activity?

2.8. Environmental Impact Assessment Act, 2005 This section highlights the provisions of the EIA Act. This Act requires that activities,

which are likely to have deleterious effects on the environment be subjected to an EIA.

Most importantly, it provides for public participation and gives citizens the right to take

legal action where their rights are violated or threatened with same. One of the most

important procedural tools in the field of environmental protection is the technique of

environmental impact assessment (EIA). Based on scientific data and inspections, and



32

featuring public participation in early stages of the process in the form of public

comment and community hearing and notices, the EIA is often a requirement before

development plans can be voted upon by planning authorities.

EIA is intended to integrate socioeconomic goals, scientific facts, societal values, and

ecosystem considerations to provide a balanced analysis of the effects of a range of

development alternatives. It provides a more proactive and preventive approach to

limiting environmental harm. In the final analysis, EIA facilitates production of

environmentally sensitive projects as it enables relevant information on the

environment to be considered as part of the planning process.

The long title of the Act states that the Act is intended to:

• Provide for environmental impact assessment to be used to assess the potential

effects of planned developmental activities;

• Determine and provide mitigation measures for effects of such activities as may

have a significant adverse impact on the environment;

• Put in place a monitoring process and evaluation of the environmental impacts

of implemented activities; and

• Provide for matters incidental to the forgoing.

2.8.1 Authorities

The minister is responsible for implementation of the Act. Local authorities and

government Departments (In this connection, the Department of Environment and

Conservation) have a role to play in implementation of the Act.

2.8.2 Activities to which the Act Applies.- Sec. 3(1)

The act shall apply to activities in respect of which the Minister in consultation with a

competent authority, may, after screening them, prescribe by regulations. The Act, as a

frame-work legislation, does not provide a list of those activities that have to be



33

subjected to EIA. It empowers the Minister, to provide the list by means of regulations.

This gives the Minister flexibility to add to or subtract from the list those activities he

deems fit to include or exclude as and when circumstances so warrant.

2.8.3 Such Regulations Shall Prescribe.-Sec 3(2)

-A list of activities which are likely to cause significant adverse effects on the

environment or the locations that may be environmentally sensitive in respect of which

the statement shall be mandatory;

-Thresh-hold determinations of environmental impact assessment with respect to

activities prescribed under paragraph (a) and….

-Criteria, which shall be used to determine the likely effects of a proposed activity in

order to further determine whether or not a statement is required for the activity

2.8.4 Undertaking an Activity Sec. 4(1)

No person shall undertake or implement an activity prescribed under Section 3(1)

unless an environmental impact of the proposed activity is fully taken into account in

accordance with the provisions of the Act and authorization has been issued under

Section 14.

2.8.5 Preparation of Environmental Impact Assessment Documentation - sec 6-7

The Act requires that there should be included in an application to carry out a

prescribed activity, a preliminary environmental impact assessment on the main effects

the proposed development will have on the environment. The applicant is obligated to

seek the views of the people or communities which are likely to be affected by the

activity. To facilitate public participation, the applicant is required to publicize the

intended activity, its effects and benefits in the mass media. The notice to the public



34

should be no less than 21 days after which the applicant may hold meeting with the

people or affected communities. It is after consideration of all the information submitted

by the applicant, that the Department of Environmental Affairs will decide whether an

environmental impact assessment is required or not.

Where a competent authority is satisfied that all relevant information is available in the

application and the activity can be carried out without any adverse environmental

impact, the Department of Environmental Affairs shall authorize the implementation of

the activity.-sec 6(3)

Where the Department finds that information provided by the application is

insufficient, the competent authority shall require and specify to the applicant the

additional information to be provided.-sec 6(4).

Of particular relevance to this study is the requirement that the applicant must

publicize the activity, its pro and cons and must hold meeting to get the view of the

people likely to be affected. This requirement definitely satisfies the requirement of

public participation and access to information. The public can at this stage lobby and

kill the project if it feels it poses serious threat to them.

2.8.6 Appeals.-Sec 15

Any person aggrieved by a decision of the Department of Environmental Affairs

may appeal to the High Court within 30 days of receiving the decision of The

Department.

2.8.7 Decision Making by Competent Authority.-sec 19

In assessing applications for authorization under this Act and in making a decision

as to whether it ought to issue or renew an authorization under this Act, the

Department of Environmental Affairs shall take into account the contents of the

terms of reference, the statement, the recommendations of other government



35

departments, local authorities and the comments and objections of interested

persons and the public.

This section shows that decisions ought not to be taken unless the views of those

likely to be affected have been considered. In other words, it would make perfect

legal sense to challenge a decision that has been taken without taking into account

the views of those likely to be affected.

2.8.8 Right of Recourse to the High Court – 22(1)

Any person who alleges that any provision of this Act is being or likely to be

contravened in relation to him or her or any other person or group of persons with

substantial interest may apply to the High Court for redress.

Citizens can approach the High Court for redress where they feel their concerns have

not been taken on board.

2.8.9 Locus standi - 22(2)

While the Act can be lauded for giving members of the public the right to take action

where there is contravention of the Act or threat thereof, it is interesting that the Act

expressly states that standing to bring action shall be established in accordance with the

common law rules of standing.

The rules of locus standi exist to regulate access to the courts. (Reg v Paddington

Valuation Officer Exparte Peachy Property Corporation Ltd (1966)QB 380 at 401 per

Lord Denning MR; Dow v AG [1992] BLR 113; Tsogang Investments (Pty) Ltd v Phoenix

Investments (Pty) Ltd [ 1989] BLR 512) The objective is to prevent abuse of the court

process and to discourage meddlesome interlopers (busy bodies) from invoking the

jurisdiction of the courts in matters not concerning them. The application of the locus

standi rules manifests itself in two ways: (a) whether the particular litigant has the



36

necessary legal capacity to bring proceedings (for example, minors, lunatics, un-

rehabilitated insolvents may not have legal capacity in some cases); and (b) whether the

litigant has a legally recognized interest to assert or protect.

Thus a person who wants to bring action must show that she/he stands to suffer harm

if the activity is permitted.

For the general position on the question of locus standi in Botswana, see B. Maripe,

‘Locus standi and access to judicial review: Statutory interpretation and judicial practice

in Botswana, 1999 (62) THRHR 390.

2.8.10 Weaknesses in the EIA Act, 2005

Section 3 of the EIA Act, gives the minister power to prescribe activities to be subjected

to an EIA by regulation. Four years later the minister has not prescribed any list. It has

to be pointed out here that the Ministry responsible is aware of this shortcoming and

has put in place a process to produce the list of prescribed activities as required by the

Act. This effectively means the Act cannot be implemented in its current form.

Although not meeting all the formal legal requirements for implementation, the Act has

nonetheless been used to guide development projects and appears to enjoy some

obligatory force.

2.9. Waste Management Act, 1998

2.9.1 Laws Regulating Pollution Control and Waste Management

This section highlights the salient provisions of legislation dealing with Waste

Management. The question once again is to determine the extent to which this Act

promotes access to environmental justice. Put simply, can an individual bring action

where he feels his rights are being violated? For example, can individuals bring action

against say, the local authority where the local authority has failed to collect waste from

his rubbish bin? Can a community sue a local authority where a dumping site is



37

established within their vicinity? It will be shown hereunder that the Act is wanting in

its provision for access to environmental justice.

2.9.2 Objectives: (see head-note to the Act)

• Regulation of management of controlled waste

• Prevent harm to human, animal and plant life

• Minimize pollution of the environment

• To conserve natural resources

• To apply international standards as are provided for in the Basel Convention in

regulating trans-boundary movement of hazardous wastes and their disposal.

2.9.3 The Regime Established by the Act

First, it establishes the administrative institution, namely, the Department of Sanitation

and Waste Management, (sec. 3)( commonly referred to as the Department of Waste

Management and Pollution Control, which will in due course gain statutory after

proposed amendment to the Act). The Director is responsible for the administration of

the Department. The overseeing authority is the Minister, (sec. 4 (2)). The director is

assisted by environmental officers.

The functions of the Department are: (Sec. 6)

• Provision of policy direction and leadership;

• Ensure implementation of sanitation and waste management plan;

• To register person(s) who manage controlled waste;

• Register and license waste carriers, waste disposal sites and waste management

facilities;

• Require and monitor the collection, disposal and treatment of controlled waste

by local authorities and the private sector;



38

• Approve waste carrying vehicles;

• Monitor trans-boundary movement of controlled waste

• Restrict or prohibit waste management operations in or near rivers, ponds, lakes

or underground water;

• Order immediate closure of any existing waste management facility on the

grounds of risk of pollution of the environment or harm to human, animal or

plant life;

• Cause land to be inspected from time to time to detect environmental pollution

or harm to human, animal or plant life.

2.9.4 Agencies of Waste Control

Local authorities are empowered to collect waste or make arrangements with third

parties for disposal, removal and establishment of waste management plans.(S.29(1)).

Local authorities also contribute to the drawing up of the national waste management

plan, section 9(1).

2.9.5 Waste Regulation Authorities

Each local authority has the power to deal with controlled waste in its locality. They are

each under a general duty to investigate what arrangements, including a licensing

system, are needed for the purpose of treating or disposing of controlled waste in their

area, so as to prevent or minimize pollution of the environment or harm to human

health.

These arrangements must include preparing a “waste disposal plan” covering issues

such as site licensing policy and disposal options. In preparing these plans, local

authority may make arrangements with any waste management industry in the private

sector to:



39

1. Recycle waste

2. Use waste for the purpose of producing from it heat or electricity, or both

3. Collect and dispose of controlled waste.

The Director of the Department of Sanitation and Waste Management is the general

supervisor of local authorities and ensure that there is compliance.

Proposal: To require the local authorities or district councils in their

capacity as planning authorities, rather than as Waste

regulation authorities, to draw up “waste disposal

development plans”. These plans would have a different

function from waste disposal plans and would concentrate

more on land use and planning issues.

2.9.6 Waste Disposal Authorities

Local authorities are responsible for waste disposal within their jurisdiction.

Any person who operates a waste disposal site shall be registered and issued with a

certificate by the Director of Sanitation and Waste Management S.14 (1)). Each local

authority shall deliver for disposal, waste which is collected by it to a licensed waste

management facility with the excepting of any household waste, which the local

authority may decide to retain for recycling, sec 31(1).

A local authority may inspect land on which waste has been deposited to detect

whether the state of such land is in a condition to cause pollution of the environment or

harm to human, animal or plant life and to take steps as appear to it reasonable to avoid

pollution of the environment and harm to human, animal or plant life (S.31 (2) (b)).

5.19. Waste Collection authorities.



40

Waste collection authorities are usually the city, town or district council. They have a

general duty to arrange for the collection of household waste (S.29 (1)) in their area and,

if requested by the occupier of premises, to arrange for the collection of waste, other

than household waste for a prescribed fee. (S.29 (2)).

No person is allowed to move controlled wastes or the trans-boundary movement of

controlled waste without being registered as a waste carrier (S.12 (6)).

2.9.7 Duty of Care. - Sec 51

A duty is placed on any person who imports, produces, carries, keeps, treats or disposes

of controlled waste or who, as a broker, has control of such waste, to take all such

measures applicable to him in the circumstances to prevent the escape of the waste from

his control;

• To ensure the person to whom the waste is being consigned is

licensed.

• To prevent the escape of the waste from his own or another

person’s control. It seems this duty of care does not apply to an

occupier of domestic property as respects his own household waste

(S. 51).

2.9.8 Waste Management Licensing System

No person shall cause or effect the movement of controlled waste within Botswana

without being registered as a waste carrier. (S.12 (2)). Any application for registration

must stipulate;

a) The nature of the waste that is expected to be transported

b) The registration of the vehicles to carry the waste



41

c) Details of persons to drive the vehicles as registered above

Registration will be evidenced by a certificate issued by the Director or any exemption

thereof (S.12 (4)).

The Director shall issue a waste carrier certificate to every person registered or

exempted from registration as a waste carrier, which certificate shall be prima facie

evidence of registration or exemption from registration of the waste carrier as the case

may be.

2.9.9 Appeals

Appeals by an aggrieved person must be in 30 (thirty) days to the minister or the court

on a matter of law.

Appeal may be made to the minister on:

a) Refusal of the Director to issue waste carrier license

b) Refusal to register waste disposal sites

c) Against variation of conditions

d) Against refusal of transfer of waste management facility license

e) Against suspension

f) Against revocation

g) Against refusal to surrender.

It will be seen that the Act establishes institutional arrangements for regulation of waste

disposal. It does not give individuals standing to enforce it or bring personal action

founded on the act. In this respect, while the Act may be said to establish a sound

institutional arrangement for waste management, it does not have substantive

provisions that can be said to promote access to environmental justice. The Act overly

relies on criminal sanctions for its enforcement. However, it can be argued that anyone

who fails the duty of care as described in section 51 can be sued. In other words, a local

authority can be sued if it failed to observe a duty of care in dealing with waste. The

Act thus provides for inadequate access to justice.



42

2.10. Laws Regulating Land Use and Planning

This section highlights the salient provision dealing with land use. Issues relating to

land use have recently dominated headlines of the print media and commissions of

enquiry have been instituted to investigate concerns regarding land use. At the heart of

many environmental issues lie decisions concerning land use, so that the most common

environmental problem one is likely to encounter in one or other controversy regarding

a proposed development where environmental considerations are cited as a reason to

prevent it. Issues of this nature were at the heart of the judicial commission of inquiry to

state land allocations in Gaborone (2004) (Lesetedi Commission). The Town and

Country Planning Act is the major Act in this area. Below we take a closer look at its

provisions in order that we determine the extent to which it facilitates access to

environmental justice.

2.11. Town and Country Planning Act; Cap 32:09

The regime established by the Act provides for a comprehensive control over land

development in Botswana. It seeks to regulate physical alterations to land or changes in

its use. This regulation is exercised by means of the grant, or refusal of permission. If

development of land is carried out without permission the Minister has power to take

enforcement action, which ultimately culminates in criminal sanctions.

According to its long title it is an Act to make provision for;

i. The orderly and progressive development of land in both urban and rural

areas;

ii. To preserve and improve the amenities thereof;

iii. The grant of permission to develop land

iv. Powers of control over use of land and for purposes ancillary to and

connected with matters aforesaid.



43

2.11.1 Planning Authorities

The duties of ensuring the implementation of the objectives of the Act are bestowed on

the Minister. It shall be the duty of the Minister to secure consistency and continuity in

the framing and execution of a comprehensive policy with respect to the use and

development of land in Botswana in accordance with the development plans for

Botswana. – Sec 3.

2.11.2 Central Administration

The Minister is at the helm of the hierarchy of land administration. He is charged with

the duty to secure consistency and continuity in the framing and execution of a

comprehensive policy with respect to the use and development of all land in Botswana.

- Sec. 3. Accordingly, he has power, from time to time, to declare, by order published in

the Gazette, areas of land in Botswana to be planning areas- Sec. 4.

2.11.3 The Town and Country Planning Board

The Act establishes the Town and Country Planning Board. - Sec 5(1). This is a very

important organ in the administration of land use and matters connected therewith. It is

actually the organ through which the Minister executes his mandate. Except in

exceptional cases as provided for in the Act, all matters are dealt with by the Board and

appealable to the Minister.

2.11.4 The functions of the Board are:- 5(3)

The Town and Country Planning Board have two primary functions;

• To determine applications for permission to develop land submitted to it;



44

• To advise the Minister on any matter within its knowledge or on which the

Minister may seek its advice.

2.11.5 Decision Making

The decisions of the Board shall be by majority of votes of members present and voting,

and in addition to an original vote, the chairman shall have a second casting vote in any

case where voting is equal.-Sec. 7(4).

2.11.6 Consultation

The Minister shall in the course of preparing a development plan relating to any land,

or proposals for the revision of any such plan consult with any local authority in whose

district such development plan will have effect and may consult with such other

persons or authorities as he thinks fit.- Sec.8(1). This provision makes it possible for

people consulted to make a case for or against the proposed project. There is an element

of public participation here.

2.11.7 Publication of Notice

Consultation is required to be done with the public through publishing in the Gazette of

a draft development plan and the preparation and publishing of a final plan after

considering the public comments on the draft development plan.

The Act requires publication of Notice in the Gazette and in one newspaper circulating

in the planning area that the Minister has prepared a draft plan and to state place or

places where the copies of such plan or proposals may be inspected by the public.-Sec

8(2). The two preceding paragraphs provide clear evidence for public participation.

2.11.8 Objections to the Plan



45

Objections or representation with respect to any such proposals or the revision of any

such plan must be made in writing to the Minister within one month of the publication

of notice in the Gazette. The Minister shall take into consideration the objection(s) or

representation and having done so, shall make development plan with or without

modification of the draft plan or proposals. - Sec 8(3)

Of significance is the fact that the public is provided with an opportunity to inspect

proposals for a particular activity and register their concerns with the minister who will

take their concerns into account in making a final decision.

2.11.9 Minister’s Decision

The decision of the Minister on any application referred to him shall be final and shall

not be challenged in any court; any such decision shall be communicated to the Board.-

Sec.14 (3). This type of ouster clauses are common however, the courts have

notwithstanding their existence proceeded to hear cases brought before them on review

(Smith’s Transport and Others v Index Motors and Another [1981] BLR 167; Leipego v

Moapare [1993] BLR 229; see generally, Nsereko DDN, Controlling Executive Power in

Southern Africa: The role of the Courts and Administrative Tribunals, in Corder and

Maluwa (eds) Administrative Justice in Southern Africa, UCT (1997), 95-116. Access to

justice cannot be denied by presence of an ouster clause as indicated above thus

arguably; there is access to environmental justice under the Act al beit limited.

2.12. Tribal Land Act; Cap 32:02

The Tribal Land Act vests all rights in formerly tribal land in the Land Boards (section

10). The Land Boards consults with the district councils on matters of land. The Act

makes no provision for consultation with communities on matters of land.

However, section 33(3) specifically gives individuals the right to approach the court

where they dispute the amount of compensation they were awarded where their land



46

had been taken from them and given to the state by the Land Board. This clause

arguably satisfies the requirements for access to environmental justice. But the Act is

significantly wanting when it comes to access to environmental information and public

participation. The Land Board can deal with the land without consulting communities.

This is a short coming. Land is a very important asset and it is desirable that

communities ought to be consulted on issues of land.

2.13. Wild Life Conservation and National Parks Act

1. The Act provides for the conservation and management of the wildlife of

Botswana;

2. It aims at giving effect to CITES and other International Conventions for the

protection of fauna and Flora to which Botswana is party;

3. To provide for the establishment, control and management of national parks and

game reserves and to matters related thereto.

2.13.1 Authorities

In terms of the Act a public officer will be designated as the Director of Wildlife and

National Parks. The Director shall also be the Scientific Authority and Management

Authority for the purposes of CITES. (S. 3).

2.13.2 Declaration of National Parks

There are areas declared to be national parks, for the propagation and protection and

preservation therein of wildlife, vegetation and objects of geological, ethnological,

archaeological, historical or other scientific interest for the benefit and advantage and

enjoyment of the inhabitants of Botswana. The president is empowered to declare any



47

area of state land or any land bequeathed or donated to him or any person to be a

national park, either on its own or adding it to existing national park. The declaration

by the president is not absolute. After the order has been made, a notice is published

calling for any intended objections to such order. The objection should be in writing and

laid before the president for his consideration. Such order is also subject to be laid

before the parliament and confirmed by resolution of parliament. (S.5 (4)(5)(6)).

The requirement of publication of notice to people in the area to be affected and the

calling for objections, if any, satisfies the requirements of public participation. Section

5(6) requires that the order be laid before parliament and that it must be confirmed by

resolution of parliament and if not confirmed shall lapse and cease to have any effect.

This once again gives people the right, through their representatives in parliament, to

reject or make contributions to the proposal.

2.13.3 Appeals

Appeals for grievances shall lie to the minister for refusal by the licensing officer or

director to grant license or imposition of new terms and conditions. The Minister’s

decisions in this instance shall be final. (S.42). Any person aggrieved by the refusal of

the Director to issue any professional guide license may appeal to the Minister whose

decision shall be final. (S. 43 (5)).

Any person aggrieved by the refusal of the Director to issue a trophy dealers licence or

cancellation thereof may appeal to the minister whose decision shall be final. (S. 65 (6)).

As already indicated above, the presence of an ouster clause will not prevent citizens

from asserting their right. Therefore, to the extent that citizens can still approach courts

for redress, there is access to environmental justice though limited by the fact that there

is no express provision in the Act which grants the specific right to access the court.



48

2.14. Forest Act: Cap:38.03

The Act to provide for the better regulation and protection of forests and forest produce

in Botswana.

2.14.1 Authorities

The President, the Minister, Forest officers, Local authorities and land Boards are the

key role players.

2.14.2 Power of President to Declare Forest Reserve

The President may, by statutory instrument, make an order to declare any area on state

land to be a forest reserve.- section 4

2.14.3 Application by Local Authority. Sec 5(1), (2)

A local authority may propose to the Minister that a forest reserve be established in any

area of its land. Upon being satisfied that the proposed establishment of a forest reserve

has been approved under the provisions of the Town and Country Planning Act, the

Minister shall refer such proposal to the President

Application by the Land Board.-Sec.6

Acting in accordance with the advice of the local authority, a land board may propose

to the President that a forest reserve be established on any land within its area.

The President may after considering any proposals referred to him above, by order

published in the Gazette declare the area referred to therein to be a forest reserve.-

Sec.7(1). It is worth noting that the Act makes no provision for consultation with

communities whatsoever. There are no provisions aimed at promoting environmental

justice.



49

2.15. The Atmospheric Pollution (Prevention) Act; Cap 65:03

2.15.1 Controlled Areas

The Minister may declare certain areas to be controlled areas. (S. 7(a))

No person will be allowed to carry any industrial process capable of causing or

involving the emission into the atmosphere of objectionable matter in a controlled area-

(S. 8 (1)).- Unless such person is the holder of a registration certificate authorizing

him/her to carry on that industrial process. (S. 8(i)(b))

The Act provides for appointment of the Air Pollution Control Officer who works

under the direction of the Minister (S. 3(1) (a)). It also provides for appointment of

inspectors. Their area of jurisdiction is not defined and it seems that their mandate is

country- wide. They are also responsible for prosecution of offences arising in terms of

this Act.

Inspectors are persons who are technically qualified and experienced to exercise control

over atmospheric pollution due to industrial processes (S. 3(2)).

2.15.2. Appeals

S. 12(1) established an Atmosphere Pollution Appeals Board consisting of not less than

three persons appointed by the Minister.

Appeals are brought by persons aggrieved by the decision of the Air Pollution Control

Officer on any of the following matters:

- Refusing an application for a registration certificate.

- Cancelling or suspending a registration certificate.

- Requiring the holder of the certificate to take steps to ensure effective

operation of appliances or apparatus.



50

Any person who lodges an appeal shall submit with his appeal written arguments or

explanations of the grounds of his appeal and may further appear before the Board in

person or through a representative [who shall be an advocate or an attorney] and cause

any evidence to be tendered or any arguments or explanation to be submitted to the

Board in support of the written argument or explanations of his grounds of appeal. (S.

12(4)).

2.15.3 Auxiliary Powers of the Minister

The Minister, in order to further the object of preventing, reducing or controlling

atmospheric pollution due to industrial process may (S. 14)

a) Publish and disseminate information and cause educational programs to be

devised and carried out, relating to the control of atmospheric pollution.

b) Arrange and promote the undertaking of studies of the quality of the air, and

investigations into the levels of concentration of matters polluting the air

anywhere in Botswana.

2.15.4. Penalties

Any person convicted under the Act for the first time will be liable to a fine not

exceeding P500 or to imprisonment for a term not exceeding six (6) months or to both.

For a subsequent conviction, the person will be liable to a fine not exceeding P1000 or to

imprisonment for a term not exceeding 12 months, or to both with a further fine not

exceeding P 50 for every day during which any such subsequent offence has continued

(S.16).

The Act is not explicit as to what will happen in the event when the process prescribed

for Air Pollution Control also results in the release of substances to water.

Pollution from Vehicles is not regulated under the Act, - dealing with the emission of

smoke, fumes, vapour, sparks, ashes and grit.



51

European Community initiatives on air pollution fall into 3 main categories

- Emission from vehicles

- Emissions from industrial plant

- Air pollution affecting the Ozone layer and global warming.

2.15. 5. Ozone Layer and Global Warning

A tax on the product or importation of goods made with or containing substances

controlled under the Montreal Protocol should be considered. A level should be set

whereby a particular environment can tolerate without adverse effects.

The Air Pollution Control does not have a sufficient institutional strength and capacity

to carry it out effectively.

Standards should be developed for the control of emissions from both petrol and diesel

vehicles, as vehicle emissions are major contributors’ source to air pollution.

2.15.6 Compliance with International Conventions

It must be noted that the Act was not intended to address issues relating to Ozone

depletion. The first international instrument specifically designed to address issues of

Ozone was signed in 1985(The Vienna Convention for the protection of the Ozone layer,

1985), while the Act was passed in 1971, even before the Stockholm Conference.

In the Montreal Protocol on Substances that Deplete the Ozone Layer, it was agreed that

when selecting alternatives and substitutions for CFCs, the environmental, human

health and safety aspects, technical feasibility, commercial availability and performance

among other factors should be considered.

In pursuance of the Atmospheric pollution (Prevention) Act 1971, the Department of

Mines has put in place an air pollution surveillance and monitoring system under

which monitoring stations are located nationwide especially where mining activity are



52

concentrated. Sampling from Selibe Phikwe where Copper-nickel is mined has

indicated that Sulphur dioxide concentration in the atmosphere around the mine do

sometimes exceed the international accepted level. However, the situation is gradual

being brought under control.

2.15.7 Weaknesses of the Act

i. The Act only applies to controlled areas. This is a major weakness of the Act.

Atmospheric pollution occurring outside a controlled area is not regulated.

ii. Secondly, the Act does not address issues of Ozone depletion even though

Botswana is signatory to major international instruments dealing with Ozone

depletion. There is an urgent need to revisit this Act so that it can also

address the issues of Ozone depletion. However, criticism of the Act should

take into account the fact that the Act was promulgated in 1971 when

environmental issues had not become issues of the moment as they are today.

In fact Ozone depletion was not in the contemplation of the legislature.

There is an on -going process to amend the Act and it is hoped that sooner rather than

later, Botswana will undertake legislative measures aimed at facilitating compliance

with her international obligations regarding protection of the Ozone. She has done

fairly well in other areas, particularly in fauna and flora conservation.

2.16. Laws Regulating Water Rights

This Module highlights provisions of legislation dealing with water rights. Water is a

very important resource and in Botswana it is scarce. It is important to understand laws

regulating allocation of this resource. In this connection, the Water Act and Water

Works Act are outlined below.



53

2.17. Water Act, Cap 34:01

2.17.1 The Regime of the Act.

The water Act defines the ownership of any rights to use of water, to provide for the

grant of water rights and servitudes and other related matters.

It establishes the Water Apportionment Board (S.2)

The Board is appointed by the Minister. It comprises of three to fifteen (15)

persons. The water Registrar is the ex- officio member of the board. The Registrar

is also appointed by the minister.

The board is charged with the responsibility of granting water rights {S.15(3}.

The application for the grant of water rights shall be made to the board through the

water registrar. {S. 15(2)}

Any person guilty of contravening a water right will be subjected to a fine not

exceeding P 1000 (S. 17(2), S. 9 (2), S. 36 (1) and S.37(1)).

2.17.2. Revision of Rights

Where there is insufficient water to satisfy all such water rights, the minister may direct

the Board to review the use, diversion, control and appropriation of public water in that

area-. The board may revise the quantity allowed by any right and terms and conditions

thereof. Where beneficial use of the right has been maintained, the right shall not be

cancelled or reduced except proportionally with other rights in the area. (S. 19).

2.17.3 Suspension

Where water will be insufficient on account of drought or an emergency the board may

authorize the water Registrar at any time to suspend or vary, by notice in writing to the

holders of water rights (S.20).



54

The board can stipulate the quantity of water, where it has been unspecified. Before

doing so the holder of the right shall be granted the opportunity to make representation

for considerations.

2.17.4 Variation

Conditions can also be diminished or varied through the consent of the holder of rights.

Rights granted should be used within three years. If not registrar can call upon the

person to show cause why rights should not be diminished (S.23, 24).

The person should reply within three (3) months of receiving notice. Any person, whose

rights have been diminished by reason of public need (S. 25(1)), shall be entitled to

compensation from the government.

The determination in the absence of an agreement shall be made by the High Court

upon the application of the holder or the minister.

2.17.5 Appeals

Appeals are made to the minister in respect of the following (S.31)

Refusal to record existing rights

Refusal by board to grant water rights

Refusal to renew water rights

Determination, diminution, modification of water rights

Refusal to grant servitude

Disposal of underground water abstracted from any workings

Changes, alteration, demolishing or removal of any works.

The Act makes no specific reference to redress by the courts but as pointed out above,

citizens can approach the courts for redress thus access to environmental justice is not

altogether denied.



55

2.18. Water Works Act (Cap34:03)

This Act provides for establishment of water authority in townships and confers certain

duties and powers upon such water authority and to provide for the acquisition of

existing waterworks and matters related thereto.

The water authorities are empowered to acquire rights to water and to construct and

manage works for supplying water to the inhabitants of the water works area. The

water authority is appointed by the Minister by notice published in the Gazette for

every water works area.

The power of water works authority is to enter premises to inspect and to

supervise proper use of water service (S. 15(1)).

Power to curtail or withhold supply of water (S.16)

Supply water to any premises on application by occupier

Any person who uses water other than for purposes supplied is guilty of an

offence and liable to a fine.

Whoever puts or allows to be put or to remain or to accumulate on any premises

occupied or owned by him or controlled by him or his servant or agent who does not

remove or cause to be removed or take such steps as may be necessary to prevent, upon

notice in writing, from the Water Authority, any foul, noisome or injurious matter or

any earth, deposit or excavated material in such a manner or places shall be guilty of an

offence and liable to a fine not exceeding P50 and for everyday during which such

matter is allowed to remain after notice ( S.29).

The penalties incurred for breach are too low thus not really helping the case for

compliance.

The Act makes no provision for redress by courts in this regard it does not provide for

effective access to environmental justice

2.19. Monuments and Relics Act – Cap59:03



56

The purpose of the Act is to protect and preserve National Monuments, monument,

relics, recent artifacts and heritage areas.

Section 10 empowers the Minister by order published in the gazette and in consultation

with the Commissioner of Monuments and Relics, to declare any monument, relic or

recent artifact to be a national monument.

Before so declaring the monument, relic or recent artifact as a national monument the

Minister is required to give a month notice to the owner thereof in writing that he

proposes so to declare the monument, relic or recent artifact. The owner may lodge with

the Minister objections in writing to the proposed declaration.

This Act provides for administrative environmental justice.

Section 11 also empowers the Minister to declare any structure or building of national

value as an historic building. Similarly, the Minister is empowered to declare any

drawing, painting, carving, ornament, implement, stone tool, bone, pottery, or any

other artifact, of national value a recent artifact. Equally, the Minister can declare an

area of land or region as a protected area if it contains one or more national monuments

or sites.

Section 13 empowers the Minister to acquire for the State, after consultation with the

commissioner, the ownership of any protected heritage area or national monument,

monument, relic or recent artifact together with the site thereof, upon payment to the

owner thereof and to any other person having an interest therein or right there over of

the sum of money to be agreed as fair and reasonable compensation or, failing

agreement, upon payment of such sum as may be determined by the High Court on

application by the Minister or the owner of the protected area, national monument, relic

or recent artifact. It is important to note that over and above administrative

environmental justice alluded to above the Act expressly grants citizens the right to

seek redress from the High Court thus promoting access to environmental justice.



57

2.20. Mines and Minerals Act – Cap 66:01

The purpose of the Act is to regulate the exploitation of the mineral resources of

Botswana. The Act (section 3), vests all ownership of Minerals in the Republic of

Botswana. The Minister is to ensure, in the interests of the Republic, that the mineral

resources of the Republic are investigated and exploited in the most efficient, beneficial

and timely manner.

2.20.1. Application for Prospecting License – sec.13

Any person wishing to obtain a prospecting license shall make an application to the

Minister. The Minister shall grant a prospecting license if the applicant has amongst

other things the proposed prospecting makes adequate and proper provision for

environmental protection – section 14. The Minister may equally reject an application

and where he does, he must give reasons for the refusal – section 15.

2.20.2. Wasteful Mining and Treatment Practices – 46

The Act forbids a license holder from engaging in wasteful mining or treatment

practices or conducting his operations otherwise than in accordance with good mining

practice.

Restriction on exercise of rights under a mineral concession -60

A holder of a mineral concession is prohibited from exercising any right in the

concession if the area involves land dedicated as a burial place, land containing any

ancient monument or national monument without the consent of the president. Equally,

mining is prohibited within 200 meters of any inhabited, occupied or temporarily

unoccupied houses or building.

2.20.3. Compensation for Disturbance of Rights – 63



58

This provision entitles the owner or lawful occupier of any land to compensation for

disturbance of rights of such owner or occupier and for any damage done to the surface

of the land by such operations. In the event of disagreement on the amount of

compensation the Act provides that the dispute should be submitted to arbitration.

This affords administrative justice.

2.20.4 Rehabilitation, Reclamation – 65

The Act requires a holder of a license to submit a comprehensive Environmental Impact

Assessment as part of Project Feasibility Study Report. The holder of the license is to

ensure that his concession area is rehabilitated from time to time and reclaimed as far as

is possible. It is notable that the Act specifically entitles citizens to approach the High

Court in cases disputes (particularly on amount of compensation) which cannot be

settled amicably.



59

CHAPTER 3. NATIONAL STUDY ON PRINCIPLE 10 3.1. National Survey

This section of the report presents the findings of a national survey on Principle 10 of

the Rio Declaration Initiative conducted in February and March 2010 in the following

districts throughout Botswana; Chobe, Ngami, Kweneng, Central, North East, Bobirwa

and Kgalagadi. The main objective of this survey was to generate information that

could inform on progress and reveal gaps in implementing Principle 10 of The Rio

declaration in Botswana. This information will thus help in establishing the country’s

profile with regard to implementing Principle 10 of the Rio Declaration.

The survey’s purpose was to establish general public opinion on issues of public

participation in environmental decision making, access to environmental justice and

access to environmental information. The survey is used as a benchmark to evaluate

effectiveness of decision making process in the country. The survey questions were

derived from broad project objectives provided in the project guidance document. A

broad public-input process in which local authorities and other targeted stakeholders

explored opinions by responding to questions posed was utilized.

The survey was designed with the guidance of the United Nations Institute for Training

and Research (UNITAR) guidance document to address the three critical areas in the

Principle 10:

Access to environmental justice

Access to information about the environment and environmental decision

making processes of state institutions

Public participation in environmental decision making



60

The Department of Environmental Affairs team conducted the survey. Some Non-

governmental organizations were invited to participate in the survey. Targeted groups

included among others local authorities at various settlement levels. Settlements were

selected as per the Botswana National Settlement Strategy of June 1998(cities, towns,

large villages, medium settlements and ungazzetted settlements).

3.2. Methodology

The methodological framework was designed to capture progress in implementing each

of the three key elements: access to environmental information, environmental justice as

well as effective public participation in formulation of policies, plans, programs, and

legislation and project specific environmental decisions.

3.3. Research Design

3.3.1 Sampling Procedure

A random sample of 7 districts representing the country of 10 districts was selected to

participate in the study. A sample of seven districts out of 10 is a good representation of

70% considering the time and resources needed to undertake the survey. The sample is

well distributed and represents diversity of the population. The selected sample was

therefore made because the survey wanted the sample to give a particular response and

obtain an idea on implementation of principle 10.

Purposive sampling strategy was used to select the institutions within the randomly

sampled districts. General knowledge and experience of how consultations are made in

Botswana was used to arrive at the targeted institutions.

The sample comprised of 10 NGOs, and 15 youth groups. A total of 199

stakeholders/institutions were interviewed in this survey. Stakeholders interviewed



61

included among others; tribal administration, land board, government departments,

nongovernmental organizations, youth groups, councils, community based

organizations, businesses and academia.

Data Collection

Data was collected in stages as shown below:

Stage 1 included a literature review with a focus on the three key areas outlined in the

introduction. A consultant with legal background was contracted to review the area on

access to environmental justice.

Stage 2 revolved around a survey to ascertain the current levels of public participation,

access to information and environmental justice. Data was obtained through semi-

structured interviews and Focus Group Discussions (FGD) which were conducted in

districts, government departments and private sector surveys in Botswana in February

and March 2010. Interviews were conducted in area shown in Figure 3 -1. Respondents

comprised Local Authorities as well as members of Community-Based Organizations

(CBOs) and Non Governmental Organizations (NGOs). A list of semi-structured

interviews, as well as respondents participating in the group discussions, is provided in

Appendix 1. Secondary data was obtained from various sources, such as policy

documents, reports, periodicals, and published government materials. The survey

methodology also involved requests for information by formal official requests, internet

and telephone.

Survey participants were provided with a brief overview of principle 10 concepts and

the project in local language. They were then given an opportunity to respond to the

questions through an interview or self administered. Enumerators were available to

clarify issues for self administered questionnaires.



62

Stage 3 of the project involves a national workshop to be held in Gaborone over two

days. Representatives of the stakeholders were invited to attend the workshop to

discuss issues and develop the priority areas.

Stage 4 of the project will entail developing a draft report and in collaboration with the

stakeholders, refine the report and develop an action plan.

3.3.2 Data Analysis

A total of 199 stakeholders were interviewed in this survey. The survey data was run

and analyzed using simple frequencies and percentages. Figure 3-2 presents a list of

stakeholders interviewed and percentages.



63

#

#

# ####

#

#

#

#

#

#

#

#

##

#

### #

#

#

#

#

##

##

#

#

#

# #

##

#

#

#

##

#

#

#

#

#

#

#

##

#

CentralGhanzi

Kgalagadi

Ngamiland

Kweneng

Chobe

Southern

Kgatleng

North east

South east

Tsetsebjwe

MAUN

KANG

BOBONONG

GABORONE

MAHALAPYE

MOLEPOLOLE

FRANCISTOWNTati

Otse

Satau

Khawa

Etsha

Moroka

Sefare

Dibete

Kasane

Shashe

MasungaTsamaya

Shakawe

Seronga

Ditladi

Mookane

Shorobe

Tsabong

Thamaga

Bokspits

Etsha 12

Kachikau

Hukuntsi

Tlokweng

Zwenshambe

Mosolotsane

Botlhapatlou

Mpandamatenga

#

Case Study

200 0 200 400 600 800 Kilometers

N

EW

S

Created by: Dept of Envir Rio Declaration Principle

Major Vi#

Surveye#

DistrictsCentral

Chobe

Ghanzi

Kgalaga

Kgatleng

Kwenen

Ngamila

North ea

South ea

Southern

Lege

Figure 3 - 1. Principle 10 Initiative surveyed areas



64

Civil Status

No

of re

spon

dent

s

5.1%

7.1% 6.6%

1.5%

6.1% 5.6%

24.0%

4.1%5.1%

21.4%

13.3%

0

4

8

12

16

20

24

28

32

36

40

44

48

NGOCentrl Gov

Private SectorYouth

CBOsParastal

Tribal AdminLand board

CouncilVDC

Clubs

Figure 3 - 2: Stakeholders who participated in the survey Figure 3 - 2 above shows that tribal authorities were the most interviewed. A tribal

authority is an umbrella term which includes the traditional leadership in Botswana. It

includes such figures as the Kgosi, the headmen and other village elders. This

leadership is found everywhere in the country. Every settlement in the country has a

leader who occupies this portfolio. This is the leadership that is present in all forms of

settlements. It is hardly surprising therefore that this group makes up to 24% of all the

groups interviewed. Village Development Committees (VDC) was next most

interviewed throughout the survey. These are committees that implement village level

developments. The two target groups are outstanding because they constitute the

formal structures operational in all settlement types throughout the country. They are

also found in all cities and towns throughout the country. Youth groups are not

established in most settlements hence low response rate of 1.5%. The following sections

assess and analyze public perception on the three key areas of Principle 10 as obtained

through the national survey.



65

3.4. Access to Information about the Environment and Environmental Decision

Making Processes of the State Access to environmental information refers to availing information and data held by a

public or private body that is required for use to exercise the right to a clean and

healthy environment. This concept enables the public to participate in environmental

decisions-making that affects their lives.

In order to make informed decisions and exercise rights to live in a clean and healthy

environment, the public need to have access to the information about their

environment. It is the mandate of the government as per subscription to the Rio de

Declaration to ensure that the citizens receive reliable environmental information, and

make it easily accessible.

The public cannot participate meaningfully in environmental decision-making unless

they have access to information relevant to the decision to be made. Ideally, the public

should have access to the same information as the decision-maker.

3.5. General Access to Information Legislation and Policies

Currently there is no law or regulation which binds or obliges public officers holding

information to release it to members of the public who seek for it. Current pieces of

legislation provide for a regulatory framework that excludes citizen participation both

in the formulation and operation of the Acts. The Environmental Impact Assessment

Act No 6 of 2005 can be somehow said to provide limited access to information by the

public. This limited right to assess to information has not been challenged as it only

compels developers to avail information for specific projects.

3.6. Access to Environmental Information



66

The survey prompted stakeholders to ascertain whether there is access to

environmental information in their districts. All stakeholders responded to this

question. A comparison made within each district showed that 50% - 83% in six of the

districts felt that there is access to environmental information, Table A, Appendix 1.

Notable responses within districts are in Mahalapye and North East districts where

88.9% and 68.3% of the respondent felt there is inadequate access to environmental

information.

The same question was subjected to comparison between districts and presented in

Figure 3 -2. North East district shows a significantly higher figure of 38% of respondents

who felt there is inadequate access to environmental information. Mahalapye sub

district follows with 18% and Gaborone with 16%. The higher figure for North East

district in comparison between districts is attributed to a higher sample size. South East

district shows 100% of respondents who felt that access to information are inadequate.

This is also attributed to the sample size. When compared to other districts Francistown

which makes 6% of respondents shows that all respondents felt there is adequate access

to environmental information.



67

Figure 3 – 3: Evaluation of accessibility of information in districts 3.7. Access to Legislation When asked about the accessibility of environment legislation, most respondents could

not differentiate legislation types. The current laws fall short of supporting the public’s

access to legislation. Field observation revealed that the general public do not have

documented legislation hence can be concluded that most people do not have access to

legislation. In addition, there is no access – to- information law or regulation which

binds or obliges public officers holding information to release it to the public. There are

no environmental information centers/ offices.

3.8. Law Enforcement

Law enforcement on environmental issues is the sole responsibility of the government.

The general consensus from the public as per field observation is that this responsibility

a collaboration between the government and the public. Most communities in the

northern parts decried the current arrangements citing lack of involvement by the

government. Participation by government departments and the community in the



68

development of the conservation strategies and enforcements was seen as an

opportunity to forge partnerships for mutually beneficial action. Currently the general

public is informed at planning stages and they are never part of the formulation

committees. Some Community Based Organizations (CBOs) dealing with natural

resources have emphasized the need for commitment by both government and the

public to commit financial resources to develop skills in law enforcement.

3.9. Institutions

Government institutions are equipped to collect and disseminate environmental

information. Head offices are located in towns and cities. Environmental information is

collected in districts and processed in head offices. Despite the fact that observation

statistics and data are collected in districts they are far from adequate and not

systematically and fully collected. The dissemination of information to the public is not

timely and regular. The public have suggested that offices should be located

strategically so that information can reach everyone in time. It has also been suggested

that information should be provided in a usable format.

3.10. Data Availability from Private Sector

Many respondents have complained about their inability to get environmental

information from the private sector. Ideally, the public should have access to the

environmental monitoring information from companies. This rarely occurs as

companies either undertake environmental monitoring or are not comfortable with

their environmental management. Obtaining information from companies is almost

impossible unless it is accessed through government departments’ records.

3.11. Information About Environmental Decision – Making Processes of State Institutions

Government departments are tasked with making decisions about specific

environmental issues concerning their mandates. These decisions are made with



69

involvement of the general public. There are still queries from the general public that

most decisions are made without their concern. Some members of the public have also

raised concern that these decisions are ill-informed as they are not backed by any

information. Examples raised include; allocation of land in hazardous areas, programs

that do not suit their areas and policies that do not conform to the people’s way of life.

3.12. Access to Environmental Information Held by Government

Government departments collect and store different environmental information. This

information is supplied to different stakeholders as per their needs. Table 3 -1 presents

some of the environmental information held by departments and its accessibility.

Table 3 - 1: Availability and accessibility of environmental data held by government

Type of Environmental Information

Institution Holding Information

Available to the Public?

Fees

Comments

Water quality

Department of Water Affairs( Water Quality & Conservation)

Information is provided when the public request for it.

P 120.00 per mega bite

The general public frequent department for the data. The only problem is that the information is not timely updated. Sometimes it takes longer to have this data. the public can send their water samples to the department for analyses.

Air Emissions and Air Quality

Waste Management & Pollution Control (Compliance and Enforcement Division)

Distribution of information is selective; it is given to those who need it.

Free The general public is aware of the availability of the information and now utilizes it.

Inventories Compliance & Enforcement Part of the Free The general public



70




Fees

Comments

of wastes site Division( Department of Waste Management & Pollution Control

information is given to the public. Inventory is kept for future reference for administrative reasons and actions concerning pollution and compliance

is sensitized through government websites, Kgotla meetings and road-shows.

Protected Species/area inventories (cheetahs, crocodile matlhalerwa etc.)

Department of Wildlife and National Parks( Estate Management)

Information is available for public consumption.

Hunting and Regulation Licensing: P6.00 Educational Regulations :P2.00

Kgotla meetings and seminars are used to disseminate information and regulations to the public.

Food Quality Department of Public Health (Nutrition and Food Quality Control)

Information is available for public consumption

Free Several initiatives are in place to sensitize the public about general issues relating to handling of food. Regular Inspections are done by department

Epidemiological data

Department of Public Health (Disease Control Division )

Available to the Public

Free Department arrange workshops with stakeholders and share information on epidemics. Provision of promotional materials which are distributed to the concerned people e.g. calendars, Report for Botswana Global Youth Tobacco, Pamphlets on Chemical Hazards,Cholera,HIV/ AIDS



71




Fees

Comments

Agricultural Policies and Planning

Government Departments e.g. Crop Production, Animal Production ,Veterinary

Information is available to the public

Free Public is sensitized on the policies through meetings and workshops. Information is also provided at Government Printers at avoidable prices. Information centers have been set throughout the country to assist farmers on Agricultural Policies.

Pesticides/ chemicals registers

Department of Crop Production

Information is not for public consumption instead it is shared with other Departments. The matter depends on confidentiality.

Free Department provides training workshops for farmers every year in May. Information brochures are also distributed freely through retailers

Land-use planning

Department of Town and Regional Planning (Settlement Planning Office).

Information is available to the public.

Information is sold at government printers or P120 per MB digital data or P60 hardcopy map.

The public is consulted through Kgotla meetings Public can also make representations through Town and Country Planning Board.

Energy planning

Department of Energy Affairs (Communication Division)

Information is available to the public in the form of Policies and Acts.

Department des not have any section specifically dealing with environment. The public is educated through: Kgotla meetings, newspapers and road-shows



72




Fees

Comments

Transport planning

Central Transport Organization

No information on the environment

3.13. Environmental Data Held by Industry and Private Sector Parties This section outlines information about radioactive sources held in the country. Waste Site Inventories & Waste Quality and Quantity Data Department of Radiation Protection (Environmental Monitoring Section; Radioactive

Waste Management Unit) deals with the use and management of radioactive materials

in Botswana. Mines and hospitals have to comply with the regulations and also provide

management plans on how they use, store, transport and disposal of the equipment.

International Atomic Energy Agency signed an agreement with Botswana in 2001 and it

also works hand in hand with The Joint Convention on the Safety of Spent Fuel

Management and on the Safety of Radioactive Waste Management. These conventions

are concerned with;

• Regularizing planned trade in hazardous material across borders

and Member States should take necessary measures to ensure that

management of hazardous wastes is consistent with the protection

of human health and the environment.

• They declare the illicit movement of such materials to be a criminal

Act.

• They also provide them with training

3.14. Inventory of Used Radiation Sources



73

An inventory of radioactive materials in the country is kept by the Department of Mines

in the Radiation units. Table 3 -2 below presents an inventory of agencies with

radioactive substances.

Table 3 -2: Radiation Inventory

Institution

Disused Sources

Spent Sources

Other Waste(e.g. soil contaminated)

Department of Roads 16

BCL Mine

13

8

Tati Nickel Mine

3

Botash Mine

3

Poseidon

27

Department of Geological Survey

3

Department of Agric Research 9

1

Kgalagadi Breweries 3

Material Investigation Centre 3

1

Consolidated Contractors 4

Total

38

24

28

Department officers travel around the country sensitizing the public about the use of

nuclear technology and radioactive materials in general. This is done through Kgotla

meetings. Other stakeholders are reached through targeted trainings on site. The

information held by the department is availed freely to the public on request.

3.15. Analysis and Assessment If citizens are to have confidence in administrative decisions affecting the environment,

then they need to know that these decisions are based on sound information, have

covered all the relevant issues and have been subjected to a methodical, transparent and



74

accountable decision-making process. Currently there is no legislation that compels

authorities to avail information to the general. The current laws and the constitution are

silent on issues of right to access to environmental information. The country is however

moving towards enactment of the law that will grant citizen right to information.

Table 3 – 3: Summary evaluation of access to information – Areas and Issues

requiring further attention and capacity building Area/ Issue requiring

attention

Relevant Capacity constraint

for problem area

Possible development

Inadequate Collection of

Information

Lack of skilled personnel Intensify training

Monitoring Inadequate monitoring of

environmental issues

Training and engagement of

more personnel

Information Dissemination Lack of skilled personnel and

equipment

Provide more equipment and

personnel

3.16. Suggestions from the General Public on Access to Environmental

Information

Throughout the national survey the general public made suggestions that they felt could assist in improving access to environmental information. Some of the suggestions are listed below;

Every government office should be able to make available environmental

information associated with their areas of work, free of charge. Private actors particularly in the industrial sector should be open for public

access to facility-level information.

Apart from appeal mechanisms, people should have more channels for their convenient access to information.

The government should support alternative media for information dissemination

especially at local level, such as community radio stations.



75

Capacity building and sensitization of stakeholders looking at their level of understanding; simplify the language for easier access and understanding of the issues

Consideration should be given to coming up with legislation addressing issues of access to information and environmental justice

There should be transparency to promote accessibility and availability of

information by the general public 3.17. Overall Conclusion on Access to Environmental Information In conclusion, although government departments have a wealth of environmental

information it does not reach intended stakeholders. Private actors particularly in the

industrial sector do not consider public access to facility-level information their

responsibility. The existing laws related to the environment do no address issues of

access to information; therefore these laws should be amended to address it. Access to

information should be made a right to citizens.



76

CHAPTER 4. PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISION – MAKING

4.1. Public Participation Public Participation is a democratic process of engaging people in thinking, deciding,

planning, and playing an active part in the development and operation of services that

affect their lives - Calouste Gulbenkian Foundation, 1973. This process allows individuals

and groups to exchange views and influence decision-making.

The desire by the public to become more involved in the decision making process of

government has gathered pace over the past years. Historically, the responsibility for

decision making in public life has been vested in elected representatives (politicians),

local authorities in the form of traditional leaders and government agencies. At

community level decisions were mostly made at kgotla (meeting places) while at

government level they are made at departmental or ministerial level and parliament.

The shift towards public involvement in the decision making process is essentially a

change in emphasis - from substance to process (how should choices be made).

Governments recognize the value of involving local communities in decision making

and to take a more active role in managing their local environments. State government

also now realize that community capacity building and enhancement of social capital

can have significant flow–on effects in improving a state’s environmental, social and

economic well being.

The study evaluated public participation in formulation of policies, plans, programs

and legislation. It also assessed the level at which the public is involved, the forum used

and whether the views, concerns and advices are taken into consideration when final

decisions are made. Observations throughout the survey were recorded. Results for the

survey are discussed in the following section.



77

4.2. Public Participation in Formulation of Policies, Programs and Plans There are many pressing issues regarding the environment such as degradation and

pollution in the country. Environmental governance agencies and the government are

making efforts in environmental protection but some fields and sectors have not shown

significant improvement.

Although there has been recent progress in institutionalizing participation in policies

and programs over the past years, such changes have not yet translated into practice by

many government departments. Most departments and investors hold consultations

established in law (EIA Act No. 6 of 2005) merely in order to advance without

hindrance. The outcome of the national assessment survey on public participation in

formulation of policies, programs and plans is presented in Figure 4 -1 below.

Public Involved in Formulation of Policy,Plans/Programs

No

of R

espo

nden

ts

73.2%

23.2%

3.5%

0

10

20

30

40

50

60

70

80

90

100

110

120

130

140

150

Yes No Do'nt kn

Figure 4 - 1: Evaluation of public involvement in policies/plans and programs



78

The assessment results show a positive response in terms of consultation. 73.2% of

respondents felt that the public is consulted. However this does not mean, that

participation is occurring well ― field observation has revealed that of the several

possible forms and levels of participation, even the most elementary one, which is

making relevant information timely available to interested parties, has been inadequate,

and it is frequently manipulated by those in charge of advancing the project or policy,

especially in procedures for public works implementation. This fact was observed, to a

greater or lesser degree, throughout the survey as the public voiced out concerns on the

matter.

A number of policies and programs were cited as examples to show that the process is

not adequately implemented. There were clearly differences in experience and

perception between the stakeholder groups. Some respondents felt that the time for

public participation is always short and does not allow for effective and constructive

engagement with the process, or the relevant department.

An in-depth analysis of the question on public involvement in formulation of policies,

plan and programs was analyzed according to civil status and results presented in

Figure 4 - 2.



79

Figure 4 - 2: Evaluation of public involvement by civil status A comparison among respondents by civil status shows that 17% of those who feel the

public is involved are those in tribal administration followed by VDC with 14%. The

rest of the stakeholders account for between 2 and 10%. The tribal administration and

VDC still make a high percentage of the stakeholders who perceive public involvement

as inadequate by 4 and 5% respectively. 6% of respondents were not aware that public

involvement is in existence and 2% are from NGOs.

A Chi-square test (Table 4 – 1) evaluation for civil status responses revealed that there is

insignificant difference in responses on public involvement.



80

Table: 4 - 1 Chi-Square Tests Results

Value df Asymp. Sig.(2-sided)

Pearson Chi-Square 52.868a 44 .169

Likelihood Ratio 57.589 44 .082

N of Valid Cases 199

a. 48 cells (80.0%) have expected count less than 5. The minimum expected count is .11.

Respondents perceptions on public involvement was further compared among districts

and presented in Figure 4 – 3. There are variations on how stakeholders between

districts responded to this question. Responses worth noting are those from Gaborone

and Francistown where 25% of respondents from each city do not know if the public is

involved in formulation of policies, plans and programs. Another interesting result is

from North East and Ngamiland where 38% and 28% of respondents felt the public is

not involved.

Figure 4 - 3: Evaluation of public involvement by district



81

Pearson Chi square test for public involvemnet by district revealed a significant

difference in responses between districts. 70.0% of responses have expected count less

than 5. The minimum expected count is .06.

4.3. Stages of Involvement in Formulation of Policies/Plans and Programs The survey assessed stages at which the public is involved in formulation of policies,

programs and plans. Figure 4 - 4 below presents response from the national survey.

Stages of Public Involvement

No

of R

espo

nden

ts

27.6%

4.5%

35.9%

32.1%

0

4

8

12

16

20

24

28

32

36

40

44

48

52

56

60

Initiation Formulation Implementation All stages

Figure 4 - 4: Evaluation of stages of public involvement

27.6% of respondents felt public involvement is at initiation stage. This is a planning

stage where normally public representative such as ministers and members of

parliament conduct meetings informing the public about the planned initiatives. A

lower percentage (4.5%) of respondents felt that the public is involved at formulation

stage. One of the observed elements regarding participation in formulation of

environmental policies, plans and programs is that participation occurs only in

advanced stages of the decision-making process, with no genuine efforts on the part of



82

the government or (investing sectors) investors to involve the public in the initial

strategic decision-making stages. This element was observed in all of the districts, (with

the exception of responses given by central government departments). This observation

is supported by a higher percentage of 35.9% of the respondents who felt that the public

is only consulted at the implementation stage of policies and programs. Another

observation made in the survey is that some environmental policies, plans and

government programs are not in line with the reality of situations on the ground and

the people’s thoughts, or not understandable and are not widely supported among the

population. The public view some of the government’s policies and programmes as

alien and not in touch with what pertains on the ground. The programmes and policies

end up lacking public buy in and support. Consequently they never get to see the light

of day or they fail. Widely engaging the public in environmental policy-making

therefore is very important to ensure the success of the policies. The general observation

is that the public is never part of the final decision.

4.4. Forum used for Public Consultation The survey established the forum used in consultation and medium used to consult the

public. Figure 4 -5 below presents survey’s results on different forums used for public

consultation.



83

Forum Used for Consultation

No

of R

espo

nden

ts

2.3%

91.5%

5.1%1.1%

0

11

22

33

44

55

66

77

88

99

110

121

132

143

154

165

Media Kgotla Workshop Others

Figure 4 - 5: Forums used for public consultation From the respondents Kgotla is the most widely used forum for public consultation

with 91.5%. Kgotla is a traditional and official public meeting place in the village

structure in Botswana which is normally seen as neutral. This is where all village

matters are held. Some respondents however felt that in some cases some people are not

afforded chance to air their views when they are not in agreement with the authority or

the policies. Some respondents alleged that Kgotla system is not so democratic since it

has a way of silencing those who hold unpopular and divergent views. It is said to be a

system which normally upholds the majority’s view at the expense of the minority.

Lately the Kgotla system has been experiencing its own problems. The respondents also

alluded to the fact that people are reluctant to attend when called for Kgotla meetings

because they feel their input and concerns are never taken on board by government

officials. Rather they call the public to inform them of decisions made by those in

authority.



84

4.5. Public Concerns

Public participation permits people to exercise their capacity to express opinions,

concerns in proposed policy or plan and question decisions made and modify policies

that can affect communities and the environment. Figure 4 - 8 shows mixed responses

between districts concerning whether public concerns are taken on board during

consultations. A comparison within districts reveals that 75% of respondents in both

Kweneng and South East felt that public opinions are not considered when decisions

are made. Respondents in the rest of the districts either felt concerns are taken into

consideration or they do not know.

Figure 4 - 7: Evaluation of public concerns in decision making

Comparison between districts, Figure 4 – 7, however shows some considerable variation

with 35% of respondents in the North East district, 23% in Gaborone and 13% in

Francistown showing no knowledge of decision makers being considerate of public

concerns. This response might have been prompted by the fact that currently there are

no public structures that are involved in final stages of formulation of neither policies



85

nor plans. Pearson Chi Square test for responses on public concern between districts

shows an insignificant difference between districts on public concern.

An observation made during the surveys reveals that the public do not receive feedback

from officials as to whether concerns were or were not integrated into final policies and

plans. This has the effect of weakening the ability of public participation as some have

indicated loss of interest on environmental matters.

Figure 4 - 8 presents public perceptions on integration of public opinion by civil status.

The response shows that 28% of tribal administration and 8% of the government

departments employees felt public concerns are considered when making

environmental decisions. NGOs were no committed to the question making 45% of

those respondents who do not know if public opinion is ever taken into consideration.

Others are clubs making 25%, CBOs 15%, councils 10%.

Figure 4 - 8: Evaluation of public concerns in decision making by civil status



86

4.6. Public Participation in Formulation of Environmental Legislations Public participation in the development of laws and normative legal documents is of

great significance to ensure the practicality of legal provisions and their feasibility. This

study evaluated the involvement of the public in formulation of environment related

legislation. Figure 4 - 9 below presents survey findings. Lumped responses show an

insignificant difference in whether the public participates in formulation of

environmental legislation or not by 45.9 and 44.9% respectively. Only 9.2% of

respondents were none committed to the questions.

Public participation in formulation of environmental legislation

No

of R

espo

nden

ts

45.9%44.9%

9.2%

0

7

14

21

28

35

42

49

56

63

70

77

84

91

Yes No Don't know

Figure 4 - 9: Evaluation of public participation in formulation of Environmental legislation The observation made is that public responses in this section reflect significant

differences between developments of policies, programs, plans and formulation of

environmental legislation. There seems to be confusion between policies and

legislation. Most respondents could not differentiate between the two hence a stalemate.



87

An analysis of public participation by civil status, Figure 4 -10, reveals that respondent

were of the perception/view that public either does not participate or they don’t know.

Responses worth noting are those of tribal administration, VDCs and clubs where 34%,

24% and 16% of respondents felt the public do not participate in formulation of

environmental legislations. The rest of the respondents were not committal to the

question except for 8% respondents from council who felts the public participate.

Figure 4 - 10: Evaluation of public participation in formulation of

Environmental legislation by civil status

4.7. Stages of public involvement Respondents were asked about stages of public involvement in formulation of

environmental legislation. 35%.6 of respondents felt the public is involved at the

initiation stage, Figure 4 – 11. Only 7.8% felt the public is involved at formulation stage



88

of the legislation. Respondents felt legislators only highlight intentions to formulate the

legislation and are not involved throughout the process. In most cases the public

decried the complexity of the whole legislative process because even legislations they

fully support take up too long to be implemented.

Stages

No

of R

espo

nden

ts

35.6%

7.8%

34.4%

22.2%

0

3

6

9

12

15

18

21

24

27

30

33

Initiation Formulation Implementation All stages

Figure 4 - 11: Stages of public involvement in formulation of Environmental

Legislation

4.8. Forum used for Public Consultation The forum used for public consultation is the Kgotla meetings. In all areas surveyed

respondents said they were consulted in Kgotla meetings. Some quarters argued that

this method of consultation has some limitations in that one has to be aligned to the

local authority, there is little time given to people to express their opinions and

sometimes ethnicity plays a role during discussions hindering participation. Other

forums included workshops and seminars. The later was said to be ineffective in that it

caters for few and the general public sometimes do not get feedback.



89

4.9. Who participates more? A question of who participates most between men and women during consultations

was posed to respondents. Cumulative analysis indicated women participate most at

43%, Figure 4 - 12. The reasoning was that women mostly attend out Kgotla meetings

unlike their male counter parts and even meetings dealing with environmental issues

are no exception. 35% of respondents felt both men and women participate in

environmental matters.

Who participate most in environmental decisions

No

of R

espo

nden

ts

43.8%

20.8%

35.4%

0

5

10

15

20

25

30

35

40

45

50

55

60

65

Women Men Both

Figure 4 - 12: Evaluation of who participate most between men and women

The question was further analyzed by comparison within district and presented in

Figure 4 - 13. In Ngamiland district men dominated women by 68% when it comes to

participation. Culture was cited as one of the reasons why men dominated in

participation in this part of the country. Men’s voice is deemed to carry more weight

than women. In Chobe, North east and Francistown response showed that both men



90

and women participate equally. Recent developments in women empowerment were

cited among reasons why women are actively participating in environmental matters.

Figure 4 - 13: Evaluation of who participate most between men and women by district 4.10. How is participation – Good, Satisfactory or Poor Respondents were asked to rate public participation in environmental matters using –

good, satisfactory or poor. The responses were analyzed between civil status, Figure 4 –

14. Tribal administration (28%), council (12%) and CBO (12%) rated public participation

poor while parastatals and NGOs felt it is satisfactory. The rest rated public

participation as good. Even though the study did not ask respondents to state reasons

for ratings tribal administration in some instances they cited lack of attendance of

Kgotla meetings as one of the reasons for the poor rating of public participation.



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Figure 4 - 14: Public participation rating by civil status Out of seven districts surveyed five rated public participation as poor, Figure 4 -15. It is

worth noting that in Ngamiland respondents felt public participation is poor. This is an

area rich in natural resources especially wildlife. Communities in this area generally feel

wildlife and other natural resources are given priority by government when it comes to

conservation. The general perception is that the government formulates policies and

plans without full involvement of the local communities who live among these

resources. The end result is that the policies and plans do not take into consideration the

local livelihoods and traditions.



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Figure 4 - 15: Public participation rating by district 4.11. Project Specific Environmental Decision Making At the project level, the study evaluated public participation in the environmental

decision making in projects that are implemented in their areas either by the

government or individual companies. The public participation in decision making at

project level is provided for by the EIA Act No. 6 of 2005. The general public takes part

in the public consultations organized by the project proponent. The results from the

consultations are included in the environmental assessment report, in order to be taken

into account for evaluation by Department of Environmental Affairs. The evaluation of

this section is presented below.

Figure 4 -16 shows that out of seven districts surveyed, five districts strongly responded

in the affirmative. Ngamiland, Mahalapye and North East felt public participation in

projects need to be improved. Although public consultation meetings are undertaken as



93

provided by the EIA act, a general feeling throughout the survey is that it is carried out

after decisions had already been made. It is undertaken with the intention to comply

with the regulation rather than to allow people to participate in the decision-making

process. This mean the public view is not taken into account as decision would have

been made.

Figure 4 - 16: Public participation in project specific decision making An observation has revealed that it occurs more as a reaction against an initiative that

has already been established by the government or the private developer. It was noted

in the survey that in some cases projects have not been made public prior to their

execution raising fear that public concerns might not be taken on board during

implementation.



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Figure 4 – 17: Public concern by civil status An evaluation per civil status, Figure 4 -17 shows that at project level tribal

administration are the only ones who felt the public is involved in project specific

decision making. Village development committees do not feel the public is involved in

project specific decisions. Most of the VDCs felt public opinions are sidelined when

final decisions are made.

4.12. Public Participation in Executive and Administrative Decision – Making The general public does not take part in executive and administrative decision making.

This has the effect of weakening the ability of public participation to foster

accountability. Observation from the survey showed that the civic society has been slow

to pressure for participation. They mostly react against initiatives that had already been

established by the government.



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Table 4 - 2: Summary of public participation in executive decision - making Area / issue Requiring attention

General obligation for Public participation (Yes/No)

Relevant legal provision

Development of plans, policies and programmes

Yes 12,13,14 EIA Act and sections 8 Town & Country Planning Act

Executive preparation of draft statutory legislation and bills for parliament

No N/A

Development of generally applicable rules and regulations (delegated law-making)

Yes 3 EIA Act & sec. 9 of Statutory Instruments Act

Development of administrative guidelines

Yes 3 EIA Act

Standards development Yes 10 EIA Act & sec 10 of Standards Act

Adjudicative/project specific decision-making

Yes 15, 22, EIA Act

Table 4 - 3: Overview of non – judicial review opportunities

Area / issue Requiring attention

Possibility for Non-Judicial Review

Relevant Constitutional or Legal Provision

Development of plans, policies and programmes

Yes

15 Town & Country Planning. Ombudsman Act, sec. 3-14

Executive preparation of draft statutory legislation and bills for parliament

No N/A

Development of generally applicable rules and regulations (delegated law-making)

Yes 3 EIA Act & sec. 9 of Statutory Instruments Act

Development of administrative guidelines

Yes 8, 10 EIA Act

Standards development Yes 10 EIA Act Adjudicative/project specific decision-making

Yes 15, 22 EIA Act



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4.13. Public Participation in the Development of National Positions for International Negotiations and Policy Processes Figure 4 – 17 below presents an evaluation of the involvement of the public when national positions on environment are adopted.

Public Involvement in National Positions

No

of R

espo

nden

ts

21.0%

79.0%

0

11

22

33

44

55

66

77

88

99

110

121

132

143

154

165

Yes No

Figure 4 – 17: Evaluation of public participation in National Positions 79% of the respondents cited lack of public involvement in development of national

positions on environmental issues. Throughout the surveys respondents were of the

view that they are never involved in development of national positions for international

negotiations and formulation of such policies. The public is of the view that since these

policies and agreements have a direct bearing on them they must be involved in

decisions when adopting them. Some respondents wanted to know what informs these

policies as no studies or consultations are ever conducted in their areas. Such

Agreements such as CITIES were perceived by those in wildlife rich areas as those

which should have involved them intensively.



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4.14. Analysis and Assessment To be completed at priority setting workshop Table 4 -5: Summary evaluation of public participation areas and issues requiring further attention and capacity building To be completed at priority setting workshop

4.15. Suggestion on Public Participation by the General Public

The following are some of the suggestions made by the general public during the survey;

The government should make an effort to establish the Pubic Participation Act to

guarantee the public’s right to participate in the preservation and balanced

exploitation of natural resources, to receive information and express their

opinions, to participate in the decision-making process, and to present petitions.

The government should also promote and encourage public participation in the

preservation, maintenance and balanced exploitation of natural resources.

Public participation should be carried out (1) before a decision is made, (2)

during the project implementation, and (3) after the project is completed

(monitoring process).

An independent body should be set up with responsibilities in particular for the

EIA process. The independent body would also monitor whether the project

complies with the approved EIA.

Training / capacity development at all levels of society for better understanding

of the issues

Public participation at the earliest time during consultations to ensure that

stakeholders are part of real decision making process.



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Ensure high level of participation to promote ownership at the inception stage

Recognition of various public and community structures; inclusion of Ntlo ya

Dikgosi (House of Chiefs), Village Development Committees, parliament e.t.c.

can enhance stakeholder participation especially at community level.

Collaboration amongst various sectors is essential for effective engagement

Multi stakeholder collaboration

The process should encourage full involvement of interested and affected parties

to avoid conflicts at a later stage.

Each ministry should have an environmental liaison officer to link the sector

with the Ministry of Environment, Wildlife and Tourism

Multisectoral collaboration is very important; private sector, academia,

communities, politicians, NGOs, Dikgosi (Chiefs), development partners

Training / capacity building initiatives to address issues of access and

participation

Issues of public participation are best handled through bottom-up approach at

community level

Public participation during environmental assessments should be done

timeously

There is need to come up with effective and efficient feed back mechanisms to

ensure effective information flow

Identify various ways of reaching out to the public, e.g. churches, health

facilities, kgotla (Traditional meeting place for consultations), educational

institutions

Continuous monitoring and evaluation for feed back and improvement in the

project implementation mechanism

There should be targets and milestones to effectively monitor implementation



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4.16. Overall Conclusion on Public Participation in Environmental Decision Making

The overall conclusion drawn from this study is that public participation in

environmental decision making in Botswana needs to be strengthened.

Opportunities granted to the public still follows a conventional form of participation

where the general public is informed at the initial stages and do not form part of the

formulation stages. This situation is not helped by lack of legislation that makes it

mandatory for public involvement.

It is therefore imperative for the constitution of Botswana to guarantee the public’s

right to participate in environmental decision making. The government should make

an effort to establish the Public Participation Act to guarantee the public’s right to

participate in the in the decision-making process, and to hold defaulters

accountable.



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CHAPTER 5. ACCESS TO JUSTICE IN ENFORCEMENT OF NATIONAL ENVIRONMENTAL LAW

5.1. Access to Justice

Access to justice is the ultimate guarantee of the implementation of the rules relating to

access to information and public participation. It means that any member of the public

can seek judicial relief if his/her rights are violated. In addition access to justice is an

important component towards providing the public with opportunities to ‘‘participate’’

in enforcement of procedural and substantive environmental issues covered by

administrative, criminal and or private/ civil law.

It is one of the tenets of constitutional democracy that the rule of law be observed. In

brief this means that where there are prescriptions of law, they must be observed, not

only by the general citizenry to whom such prescriptions are directed, but as well, by

those responsible for the enforcement of the rules as well as those in leadership. This

brings out the notion of equality before the law, which notion demands equal treatment

of the law and non-discrimination, save in justified circumstances. The rule of law is

also based on the notion that where disputes of rights and interests arise, the aggrieved

must be able to obtain relief or redress from impartial and independent bodies. Those

independent or impartial bodies are usually the courts.

The question that arises here is whether all citizens have equal opportunities of

accessing the courts in the event they are aggrieved by action or conduct or any

decision that causes damage or has negative consequences of an environmental nature.

As already mentioned in the General Background above, there is, save in very limited

circumstances, no rules of law, either in the constitution or in legislation, that are

specific to matters of the environment. The rules that apply to every other area of the

law would be applicable to the environment, as long as one establishes a wrong or what

in law is generally described as a cause of action. Every individual has a right to



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approach the courts as long as they satisfy the locus standi requirements which do not

only include that they demonstrate harm to oneself but also such minimum

requirements as to age and so on. The law of Botswana provides for access to courts,

and by extension access to justice in that general sense. In sum therefore there is public

access to justice in environmental matters. This however, is subject to the fulfillment of

conditions of locus standi as explained above. Indeed this is the only condition as there

is no requirement that a litigant must be represented by an attorney.

5.2. Access to Justice in Matters of Administrative Law Enforcement

As already alluded to in the background to political institutions, the High Court would

be the court having primary jurisdiction to entertain environmental disputes. It does so

at the instigation of an affected or aggrieved person, one who has negatively been

affected negatively by action which has a deleterious effect on the environment. Our

law does not recognize public interest litigation, in the sense of allowing one person or a

group of persons to speak on behalf of the public or to assert public rights. A person

must only go to court to assert a right in respect of harm or damage that is peculiar to

themselves; see AG v Dow [1991] BLR 113; Tsogang Investments (Pty) Ltd v Phoenix

Investments (Pty) Ltd [1989] BLR 512.

The proceedings, unless there is strong justification otherwise, are held in public. The

public only participates to the extent that they are spectators. Apart from being parties

to litigation or as witnesses, the public does not generally participate in litigation that

does not affect them.

Although access to court is open to every citizen, it is strongly submitted that this is

only to the extent that a particular individual has suffered harm to oneself. This may

come about in the sense of substantive law in that a person alleges that harm has been

caused to them through a violation of a legally created right or that a procedural



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requirement has not been followed resulting in harm. Thus access exists both in

substantive and procedural law. For example, under the Environmental Impact

Assessment Act, there is a procedure for public consultation if a project, with potential

environmental effects, is planned to be undertaken. If no such public consultation

requirement is complied with, an individual or individual residing in the area where

the project is to take place can challenge the implementation of the project in court. The

cause of action would be a review of the decision to undertake the project in

circumstances where it is done contrary to the requirements of the law. The proceedings

will be instituted against the entity that owns that carries out the project. These are

therefore proceedings in respect of positive action by an identifiable entity. There is also

possibility for inaction against certain identifiable entities in respect of the same kind of

circumstances. For example, under the EIA Act, the authority responsible for

enforcement of the provisions of that Act is the Director of Environmental Affairs. If for

some reason the Director does not enforce the provisions of the Act, a citizen may

challenge the decision not to act in court in review proceedings, for then that inaction

would mean that a project proceeds against the spelt out requirements of the Act. The

Table 5 – 1 below makes a summary illustration of the discussion above.

Table 5 -1: Summary of Access to Justice in Administrative Law Enforcement Type of Legal Disputes Citizen involvement

opportunities (yes/no) Responsible Court Relevant

Conditions

Judicial Review of Administrative Decision Making

Compliance with procedural norms yes

High Court

Locus standi

Compliance with substantive norms yes

High Court

Locus standi

Enforcement Proceedings Against Non- complying Polluters

Enforcement proceedings initiated by the administration

yes

High Court

Locus standi



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Enforcement proceedings initiated by the public

yes

High Court

Locus standi

Enforcement Proceedings Against Administrative Inaction of Matters Required by law

Inaction to develop generally applicable rules and regulation required by a law

yes

High Court

Locus standi

Inaction to require polluters to control in accordance with existing environmental law

yes

High Court

Locus standi

Inaction to initiate law enforcement proceedings against non- complying polluters

yes

5.3. Access to Justice in Matters of Criminal Law Enforcement

Under the Constitution of Botswana, the initiation and conducting of criminal

proceedings is the prerogative of the Director of Public Prosecutions (DPP). It is a

prerogative she enjoys alone and exercises it in her sole discretion. She is the dominus

litis is criminal matters, and has discretion to decide whether to prosecute, or even to

abandon the proceedings. The public does not generally have a right to institute

criminal proceedings against any offending entity. However, the Criminal Procedure

and Evidence Act, Cap 08:02, at section 14, allows for private prosecutions, but only

when the DPP declines to prosecute for an alleged offence. It is apt to reproduce the

relevant portions of the Act here in order to demonstrate the existence of the right of

private prosecution and the conditions that must be satisfied before that right may be

exercised.

Section 14 provides; In all cases where the Director of Public Prosecutions declines to

prosecute for an alleged offence, any private party who can show some substantial and

peculiar interest in the issue of the trial, arising out of some injury which he

individually has suffered by the commission of the offence, may prosecute in any court



104

competent to try the offence, the person alleged to have committed it. The Act proceeds

at section 15 to provide:

The following persons also possess the right to prosecute under section 14 as private

parties-

(a) A husband in respect of offences committed against his wife

(b) The legal guardians or curators of minors or lunatics in respect of offences

committed against their wards

(c) The wife or children or, where there is no wife or child, any of the next of kin of

any deceased person in respect of any offence by which the death of such person

is alleged to have been caused

In terms of section 18, this right may be exercised only upon presentation to an

appropriate court officer of a certificate issued by the DPP that she has seen the

statements or affidavits on which the charge is based and declines to prosecute.

The first condition for the exercise of the right is that the DPP must have declined to

prosecute. Otherwise the DPP retains that right and has the right of first refusal. The

other the private party must have a substantial and peculiar interest in the issue of the

trial. This goes back to locus standi in that the private party must show he has suffered

peculiar damage by the commission of the offence; Mutshegwa Busang v The State [1982]

BLR 10, and Solomon v Magistrate, Pretoria [1950] 3 SA 603 ( a South African decision on

the same issue).

It is quite apparent that section 15 is inclusive rather than exhaustive. If environmental

damage occurred in circumstances where an offence is committed, it will be open to a

person, provided they satisfy the conditions described, to mount a private prosecution.

Thus opportunities do exist to allow citizen involvement and participation in the

initiation of criminal proceedings where there is an environmental law dimension.

Table 5 – 2 below summarizes the type of disputes, the relevant conditions and the

responsible court.



105

Table 5 - 2: Summary of Access to Justice in Criminal Law Enforcement Type of Legal Dispute Citizen involvement

opportunities (yes/no) Responsible Court

Relevant Conditions

Citizen/public initiation of criminal law proceedings through the public attorney

yes

High Court / Magistrates Court

Locus standi

Direct citizen/public initiation of criminal law proceedings

yes


Locus standi plus consent of the DPP

Participation in the criminal proceedings as “public attorney”

yes


Engagement by interested or affected party

5.4. Access to Justice in Matters of Private/or Civil Law Enforcement

Our law does not make specific provision for environmental damage and the possible

redress regime. This is only to be covered under the general head of the law of delict, in

which negligence must be proved or under some such heads as the law of property.

There may be compensation for damage to the environment as long as an individual

demonstrates that such harm has in consequence also occasioned harm of a nature that

is peculiar to the individual. For example, it may be damage caused to land owned by a

person or to his animals or crops or some such link or connection as the person

complaining may prove. For example in Buxton v Minister of Housing where a

landowner complained of the damage caused to his land and his pig farming activities

by the deposit of chalk dust on his land by a neighbor;

5.5. Access to Justice in Matters of Constitutional Law

As said in the general political background, there is no Constitutional Court in

Botswana. Matters with a constitutional law dimension are handled by the High Court

in the exercise of its original unlimited jurisdiction, with the possibility of an appeal to

the Court of Appeal. Any issue of environmental litigation which has a constitutional

dimension will be done in terms of section 18 of the Constitution which allows anybody



106

who alleges a violation of fundamental rights and freedoms to launch proceedings in

the High Court. Again the condition is the same, that of locus standi.

5.6. Alternative Dispute Resolution

While the jurisdiction of the High Court is original and unlimited, this does not mean

the High Court has exclusive jurisdiction over all disputes arising. It usually has

concurrent jurisdiction with other courts created to deal with specific areas of the law.

Even then, there are also bodies that are also empowered to deal with disputes in

particulars areas of concern, and as statutorily prescribed. Examples here include the

Landboard which is a statutory body created under the Tribal Land Act Cap: 32:02 to

deal with disputes arising with respect to tribal land. Decisions of the Landboard are

appealable, at the instance of an aggrieved party to the Land Tribunal, also a statutory

tribunal created under the same Tribal Land Act. The jurisdiction of the Land Tribunal

is purely statutory, and is strictly appellate, and specific to decisions of the Landboard.

The decision of the Land Tribunal is appealable to the High Court. Although the Land

Tribunal hears matters on appeal, the High Court has held that in effect the proceedings

before the Land Tribunal are a rehearing of the case before the Land Tribunal. Another

example is that of the Town and Country Planning Board, a statutory body created

under the Town and Country Planning Act, Cap 32;09. This body is empowered to

entertain appeals from decisions of Town and City Councils in the latter’s consideration

of inter alia, planning permission under the Act. The Board does hear appeals on

matters which may and usually have environmental dimensions. A person aggrieved

by the decision of the Board is entitled to appeal to the Minister of Lands and Housing.

The Minister can confirm the decision of the Board or overrule it. He makes a quasi-

judicial decision and thus proceedings before him, in the same fashion as there are

proceedings before the Board, is an alternative means of resolving disputes.

The Ombudsman Act, Cap 02;12 establishes the office of the Ombudsman, a public

official whose functions is to investigate administrative action taken on behalf of



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Government and in particular complaints by members of the public who claim to have

sustained injustice in consequence of maladministration in connection with the

administrative functions of a particular department or authority. The Act also

empowers the Ombudsman to on his own motion, if he considers it necessary, to

investigate any action of a department or public authority on the ground that some

person has or may have suffered injustice. The Ombudsman then recommends

appropriate remedial action to the Head of the Department concerned, failing which to

Parliament, and in the absence of action, finally to the President. He does not himself

take corrective action. Thus this office creates an extra-judicial way of resolving

disputes. Although there is no specific mention that the Ombudsman may investigate

cases of possible environmental injustice, the scope of the term ‘maladministration’ is

wide enough to cover such situations, and in fact the remit of the office was left

deliberately wide enough to cover as many situations as possible. This is therefore one

of the alternative mechanisms existing for the resolution of disputes in the

environmental arena.

Parliament may to some extent offer a plat for resolving disputes. A member of the

public who complaints of environmental justice may approach any member of

Parliament to put forward a parliamentary question. Practice tends to indicate that the

department concerned, having been exposed through the Parliamentary question,

would put measures in place to address the harm complained off. The utility of this

route is yet to be fully assessed as some departments do ignore such questions. The

other is through a parliamentary motion. This is stronger and more effective than a

question as a motion passed calls for certain steps to be taken. It may lead to adoption

of policy. Furthermore, legislation may arise from a motion. Such legislation may

provide redress for situations which produce injustice. For example, the Tribal Land

Act was amended after a motion on the investigation of problems in allocation of tribal

in peri- Urban settlements of Botswana in 1992 (the Kgabo Commission). Parliament

therefore is another alternative way of resolving disputes with an environmental



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dimension. A summary of access to justice in criminal law enforcement is presented in

Table 5 – 2. It outlines the relevant conditions under which disputes can be resolved.

Table 5 – 2: Summary of Access to Justice in Criminal Law Enforcement Type of Legal Disputes Citizen involvement

opportunities (yes/no) Responsible Court Relevant

Conditions

Judicial Review of Administrative Decision Making

Compliance with procedural norms yes

High Court

Locus standi

Compliance with substantive norms yes

High Court

Locus standi

Enforcement Proceedings Against Non- complying Polluters

Enforcement proceedings initiated by the administration

yes

High Court

Locus standi

Enforcement proceedings initiated by the public

yes

High Court

Locus standi

Enforcement Proceedings Against Administrative Inaction of Matters Required by law

Inaction to develop generally applicable rules and regulation required by a law

yes

High Court

Locus standi

Inaction to require polluters to control in accordance with existing environmental law

yes

High Court

Locus standi

Inaction to initiate law enforcement proceedings against non- complying polluters

yes

5.7. Situational Analysis of Selected Court Decisions

This section provides some selected court decisions to demonstrate the right to justice in

Botswana. The right of access to justice is usually expressed in terms of the ability and

entitlement of general citizenry to obtain relief from independent and impartial

institutions which are set up as arbiters in the event of disputes arising between the

citizens themselves, between the citizen and institutions be they state or private, or



109

between institutions themselves. In the field of environmental law, like in any other

sphere of human activity, disputes are bound to arise as measures to conserve and

protect the environment usually clash with other interests. The courts exist for the very

purpose of resolving disputes.

There are no specialized courts whose primary responsibility is to focus on

environmental disputes. The High Court, as described before, has unlimited original

jurisdiction to entertain all kinds of disputes. Thus the court has jurisdiction to hear and

determine environmental disputes. There have not been many cases which focus on the

environment that have come before the courts for adjudication. In fact it may be said

there has not been a single case in which the main issue for adjudication was a matter of

environmental concern. However, some cases that the court has been called upon to

decide do have an environmental law dimension, albeit in some of them this was only

in a tangential fashion. Some of them are briefly described below.

The case of Botswana Quarries (Pty) Ltd v Gamalete Development Trust and others, MAHLB-

000045/08 (unreported) concerned a dispute relating to the use of road that passes

through land held in terms of Deed of Trust. The court decided that a land owner is

entitled to take individual measures to bar the use of a road passing through the land.

The decision has been taken on appeal, and awaits determination. The environmental

issue stemming out from the case expresses itself in the court’s recognition of a

landowner’s right to take measures to prevent third parties from the use and enjoyment

of the land without the owner’s consent.

The other case is Sesana and Another v Attorney General [2000] 2 BLR 33. The case

involved several issues. The environmental law dimensions of the case emerge in the

court’s recognition of a people to bring water into their dwelling place and to have

access to hunting licenses in a place whose ownership and possession may be disputed.



110

In the Selebi Phikwe Town v Minister of Trade and Industry [2004] 2 BLR 453 the court was

called upon to decide whether or not an applicant for a restaurant license had fulfilled

all the requirements including general cleanliness and good sanitation for the place in

respect of which the license was sought. The court held that such issues were critical in

any consideration for a license to provide food to the public.

In Michael Slogrove & Others v Director of Wildlife and Another [1982] 1 BLR 164, an

employee of a company applied to court for an order declaring that he was entitled to a

landholder’s hypothec in terms of the then Fauna Conservation Act, which position

would then confer on him, as either the owner or bonafide employee of the owner, a

statutory licence to hunt game on the land in question. As the landowner was a

company, it was not immediately clear that the same privileges extended to the

employees of the company, hence the application to court. This case demonstrates the

access that citizens have to the courts, and by extension, access to justice dispensed by

the courts.

In Limpopo Safaris (Pty) Ltd v The Director of Wildlife and National Parks and Others [1996]

BLR 441, the applicant, a citizen company, applied to the Director of Wildlife and

National Parks for a culling quota and landholder’s privileges. The Director refused.

The applicant then launched an application to the High Court for a review of the

decision of the Director refusing to grant the applicant the culling quota and

landholder’s privileges. The case was decided on the footing that the Applicant had no

legitimate expectation to be granted the applications he had made as it was

demonstrated that the quotas and privileges that had been extended to it in the past had

been done contrary to law. In other words no legitimate expectation could be founded

on an illegality. The case demonstrates the utilization of the channels provided for

seeking redress in court as well as demand by citizen of rights to which they may

possess under law.



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In Kandu and Others v Director of Veterinary Services and Another [1996] BLR 618, a cattle

farmer launched proceedings against the Director of Veterinary Services for an interdict

restraining the latter from destroying all cattle in the Ngamiland District in pursuit of

preventive and curative measures in the fight against the cattle lung disease (C.B.P.P).

The significance of the case for our purposes is that it demonstrates that ordinary

people affected by official decisions, even those that have the sanction of cabinet, are

still free to seek justice in the courts of law. This demonstrates the extent of access to

justice.

In Quarries of Botswana (Pty) Ltd v Tlokweng Land Board [2003] 1 BLR 113, the applicant

company, whose business is the quarrying for road and building stone, applied to the

respondent land board for leasehold rights for the purpose of establishing a quarry at

Lemonyane hill in the area of jurisdiction of the respondent Land board. The landboard

refused the application on several grounds, inter alia, that it would be of no benefit to

the tribe, that it would be a health hazard to residents and animals, and that the

environment would be adversely affected. As an Environmental Impact Assessment Report

that had been earlier prepared had not been made available to the land board, the court

directed that the applicant meet with the chief and the community to get their views on

the issue and generally that the EIA report as well as all relevant issues be considered

by the land board. Thus the effect of the order of court is to emphasize the existence of a

right of access to justice, as well as to underpin the significance of public participation

in matters affecting them.

It has to be stated here that there are several cases before the land Tribunal in which

ordinary people, as well as companies, question the decisions of land boards in refusing

them applications to do several things in tribal land ( which accounts for about 71%) of

the total land mass of the country. As said above, there is possibility of an appeal to the

High Court, as evidenced by the Quarries of Botswana v Tlokweng Land board case and

eventually the court of appeal. Whether the cases end up in the High Court or not, what



112

emerges is that people do take advantage of the existing channels to have their

grievances determined according to law. They thus enjoy a fair degree of access to

justice.

It is important to state here that there is perhaps no court decision in which the only

issue was a matter of the environment. Many of the cases, examples of which were

given above, deal with the environment as just one of the issues, and in many cases it is

about a wider or broader issue under which environmental issues are subsumed. This is

understandable as generally conditions of life usually take a multitude of facets, and

besides, in a relatively small economy of a developing country, issues of environmental

protection and conservation usually have to be counterbalanced with other necessary

developmental initiatives which may and usually conflict with the exigencies of

environmental primacy.

5.8. Approaches in other Countries in the Region

The configuration of the area in which Botswana falls on the global axis is constituted

by a regional bloc of countries forming the Southern African Development Community.

Although it originated as a political bloc, it has now transformed into a largely

economic bloc, with South Africa, originally the basis for the formation of the bloc, now

a full member of the organization. At independence, South Africa adopted a

constitution which specifically recognizes an environmental right. It provides at section

24;

South Africa

Everyone has the right-

(a) To an environment that is not harmful to health or well-being; and

(b) To have the environment protected…through reasonable legislative and other

measures that…prevent pollution.



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This right has been asserted in a number of cases including Minister of Health & Welfare

v Woodcarb (Pty) Ltd and Another, 1996 (3) SA 155, which concerned a complaint against

the generation of smoke and Hichange Investments (Pty) Ltd v Cape Produce Company (Pty)

Ltd t/a Pelts Products and Others 2004 (2) SA 393, which concerned industrial pollution

It should however be noted that even before the adoption of the 1996 constitution,

rights to clean environmental conditioned were still recognized by the South African

courts. For example, Gibbons v SA Railways and Harbours 1933 CPD 521 where the court

held that the discharge of smoke and soot from a locomotive and running shed on to

Mr Gibbons property constituted nuisance and awarded damages therefore. Likewise,

in Rainbow Chicken Farm (Pty) Ltd v Mediterranean D Woollen Mills (Pty) Ltd 1963 (1) SA

201, the applicant was granted an interdict stopping the respondent from discharging

effluent from its dyeng operations into the river, the court holding that at common law,

the producer of effluent owes a duty of care towards others. In Colonial Government v

Mowbray Municipality and others, the government obtained an interdict against the

Municipality, as its railway line was being damaged by water runoff from a new

housing development, the court holding that the municipality was committing a

nuisance by allowing contaminated water to flow onto the railway line. These are just

few examples of the many cases in South Africa in which the issue concerned the

environment, either directly or indirectly.

Thus awareness of environmental rights, and access to justice to vindicate the same was

long been part of the values of the South African Society. One can therefore conclude

that the level of participation and awareness of rights and channels for redress in the

event of transgressions is higher in South Africa than in Botswana.

Namibia

In Namibia, unlike in Botswana, matters of the environment begin with the constitution

itself. And the constitution of Namibia, at Article 1(6), states that the constitution is the

supreme law of Namibia. Article 95(1) of the constitution provides that-



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..the state shall actively promote and maintain the welfare of the people by adopting, inter alia,

policies aimed at the following:

…(1) maintenance of ecosystems, essential ecological processes and biological diversity of

Namibia and utilization of living natural resources on a sustainable basis for the benefit of all

Namibians, both present and future..’

In terms of Article 91 (c), one of the duties of the Ombudsman is;

‘ …to investigate complaints concerning the over-utilization of living natural resources, the

irrational exploitation of non-renewable resources, the degradation and destruction of ecosystems

and failure to protect the beauty and character of Namibia…’

In addition, the Traditional Authorities Act, of 2000 provides at section 3(2) (c), that a

member of a traditional authority-

…shall that the member of his or her traditional community use the natural resources at their

disposal on a sustainable basis and in a manner that conserves the environment and maintains

the ecosystem for the benefit of all persons in Namibia…’

Thus there are clear constitutional and legislative prescriptions in Namibia on

environmental issues. Although no case has been found, a reading of the provisions of

the constitution clearly indicate that any activity that is inconsistent therewith will

ground a suit at the instance of a party aggrieved. Thus access to justice is to read into

the provisions of the constitution.

The situation is better in Namibia in that the source of rights is the basic law of the land

itself, the constitution, and not a secondary source, whose validity may be contested in

any event, and may be overridden by Parliament through a Parliamentary enactment,

as is the position in Botswana.

5.9. The International Perspective In Access to Justice

Uganda

In the Ugandan case of Advocates Coalition for Development and Environment v Attorney

General, (Miscellaneous Cause No. 0100 of 2004), brought under public interest

litigation, the applicants sought orders declaring inter alia, that the de-gazetting of



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Butamira Forest was in violation of the applicants right to a clean and healthy

environment and protection of the country’s natural resources. This was after a sugar

works company had been granted a 50 year sugar cane growing permit in respect of the

forest reserve. This had been met with protests from the local communities who

depended on the reserve for their livelihood through agro-forestry. The court granted

the application. Thus a whole community that stood to be affected by activities

sanctioned by the state was able, through access to the courts, to stop the activity.

The Philippines

In the Philippines case of Minor Oposa v Factoran, G.R. No. 101083, July 30 (1993), the

issue was whether the petitioners had a cause of action to prevent the misappropriation

or impairment of Philippines rain forests. The complaint was instituted as a taxpayers

class suit. It alleged that the plaintiffs “were all citizens of the Republic of the

Philippines, taxpayers and entitled to the full benefit, use and enjoyment of the natural

resource treasure that is the country’s virgin tropical rainforests”.

The suit was said to be filed for the petitioners and other equally concerned but “so

numerous that it was impracticable to bring them all before the court”. The minors

asserted that they “represented their generation as well as generations yet unborn”.

They sought orders to:

i. Cancel all existing timber license agreements in the country;

ii. Stop approving new timber license agreements

The defendant sought the dismissal of the suit on the grounds that there was no cause

of action as the petitioners had not alleged a specific legal right violated by the

respondent and that the issue raised was a political question which properly pertained

to the legislative branches of government. The petitioners argued that granting timber

license agreements to cover more areas for logging than what was available was a

judicial question, as it involved an abuse of discretion.



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The court held that the case was a class suit as the subject matter of the complaint was

of common and general interest not just to several, but to all citizens of the Philippines.

Consequently, since the parties were so numerous, it was impracticable, if not

impossible, to bring all of them before the court. The court held further that, the

petitioners could for themselves, for others of their generation and for the succeeding

generations, file a class suit. Their personality to sue on behalf succeeding generations

could only be based on the concept of intergenerational equity in so far as the right to a

balanced and healthy ecology was concerned.

The court held also that the complaint focused on one specific fundamental legal right,

the right to a balanced and healthy ecology, which was incorporated in the

Constitution.

Bangladesh

In Dr. Mohiddin Farooque v Bangladesh ( Civil Appeal No 24 of 1995, 17 BLD (AD) 1997,

the appellant was the Secretary General of the Bangladesh Environmental Lawyers

Association (BELA), an organization working in the field of environment and ecology.

The Court held that it was an aggrieved person because it espoused, both in respect of

fundamental rights and constitutional remedies, a cause of an indeterminate number of

people in respect of a subject matter of public concern. Further, the organization was

acting bona fide and did not seek to serve an oblique purpose. However, the Court

rejected the submission that the Association represented not only the present generation

but also the generation yet unborn. It stated that the finding in the Oposa case had been

on constitutional provisions in the Philippine Constitution, which, did not exist in

Bangladesh.

Malaysia

In the Malaysian case of Kajing Tubek v Ekran Bhd & Other

S, [1996] 2 Malaysian Law Journal (Malaysia), the plaintiffs were residents of

longhouses in Belaga, Sarawak who were affected by the Government’s proposed



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development of a hydroelectric project. They sought a declaration that before the project

could be implemented the defendants had to comply with the Environmental Quality

Act of 1974 requiring an EIA for prescribed activities. By an order the Minister had

excluded the application of this Act to Sarawak and instead subjected the project to a

procedure, which, unlike the 1974 Act, did not provide for public participation in the

EIA process. The defendants challenged the plaintiffs’ standing to bring the suit.

The court held that the plaintiffs’ claim that their homes and land would be destroyed

and their lives uprooted by the project, and that they would suffer far more greatly and

directly than other members of the public as their ‘land and forest are not just as source

of livelihood but constitute life itself, fundamental to their social, cultural and spiritual

survival as native peoples’ were sufficient to justify their having a substantial or

genuine interest to have the legal position declared.

The case above illustrate how courts elsewhere decided to be pragmatic in dealing with

issues of locus standi by looking beyond black letter law to find that plaintiffs had

sufficient interest that gives them locus standi so their grievances could be heard. One

other point to note is the fact that in the absence of constitutional provisions giving

citizens environmental rights, the question of locus standi is one which gives

conservative benches a reason to refuse to entertain matters brought before them. One

can only hope that courts in Botswana will choose the pragmatic approach when cases

eventually reach them, as they certainly will. The case to depart from the traditional

doctrine was more succinctly made by the Court in IRC v National Federation of Self

Employed and Small Business limited [1982] AC 617 which stated;

“It would, in my view, be a grave lacuna in our system of public law if

a pressure group, like the federation or even a single spirited tax payer

were prevented by outdated technical rules of locus standi from



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bringing the matter to the attention of the court to vindicate the rule of

law and get the unlawful conduct stopped.”

Tanzania

The Tanzanian Court summoned up the position thus, ‘in matters of public interest

litigation this court will not deny the standing to a genuine and Bona fide litigant even

where he has no personal interest in the matter’ (Tanzania High Commission Civil Case

No.5 of 1993

5.10. Right to life from an environmental law perspective

Faced with the difficulty of locus standi and absence of environmental rights provisions

within their countries’ constitutions, some petitioners have put their complaint of

violation of right to a clean environment in the context of violation of right to life.

Tanzania

This country appears to be the first African nation in which courts have addressed the

scope of constitutional right to life provisions in the context of environmental

protection. Article 14 of the Tanzanian Constitution provides,

Everyone has the right to exist and to receive from the society

Protection for his life, in accordance with the law.

In Joseph D. Kessy v Dar es Salaam City Council, ( Civil Case No. 29 High Court of

Tanzania), citizens of Tabata, a suburb of Dar es Salaam, brought a suit against the city

council of Dar es Salaam, seeking to restrain the City Council from operating a garbage

dump that created severe air pollution in the nearby neighbourhood. The foul smell and

air pollution had caused respiratory problems to residents in the area, particularly in

children, pregnant women, and the elderly. The court noted that the air pollution

created by the garbage dump endangered the health and lives nearby residents.

India



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The same approach has been espoused by the Indian courts. Article 21 of the Indian

Constitution provides that, ‘no person shall be deprived of his life or personal liberty

except according to procedural issues established by law’. Thus in L.K. Koolwal v

Rajasthan, 1988 A.I.R. (Raj) 2 (Court of Rajasthan), the court found that a city had

violated residents’ right to life by failing to implement adequate sanitation measures.

The court held that maintenance of health, preservation of sanitation, and

environmental protection fall within the purview of Article 21’s right to life. It found the

problem of sanitation to be “very acute in Jaipur City, creating hazard to the lives of the

citizens”.

In Vellore Citizens Welfare Reform v Union of India, the Indian Supreme Court found that

tanneries in the state of Tamil Nadu had violated citizens’ right to life by discharging

untreated effluents into agricultural land making it unfit for cultivation.

Pakistan

In General Secretary, West Pakistan Salt miners Labour Union (CBA) Khwra, Khelum v The

Director, Industries and Mineral Development, Punjab Lahore (Human Rights Case No. 120,

1993 SMCR. 2061 (1994), the Supreme Court of Pakistan found that mining companies

had violated the right to life of citizens residing near mining operations by polluting

local drinking water supplies.

In Shehla Zia and Others v WAPDA, (Human Rights Case No. 15-K of 1992 P.L.D. 1994,

Supreme Court 693(1994), the Pakistan Supreme Court found that the constitutional

right to life is broad enough to include “protection from being exposed to the hazards of

electromagnetic field or any other such hazards which may be due to installation and

construction of any grid station, any factory, power station or such like installations.

The petitioners opposed the construction of a power grid station near the residential

area in which they lived (Islamabad).



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There has not been a test case of this approach in Botswana. It is difficult to tell which

way the court will be inclined. However, it will take a very pragmatic judge to follow

this line of reasoning. It does appear though that with the relaxation of the strict and

technical rules of the locus standi requirement, the courts in Botswana would in an

appropriate case follow the liberalizing trend.

5.11. Strengths and Capacity Needs

The UN Development Programme has defined "capacity" as "the ability of individuals,

institutions and societies to perform functions, solve problems, and set and achieve

objectives in a sustainable manner".

For government and civil society organizations to be able to deliver on their objectives

they must satisfy the elements of capacity as accurately captured by the UNDP.

Capacity Building includes the following:

Human resource development, the process of equipping individuals with the

understanding, skills and access to information, knowledge and training that

enables them to perform effectively.

Organizational development, the elaboration of management structures,

processes and procedures, not only within organizations but also the

management of relationships between the different organizations and sectors

(public, private and community).

Institutional and legal framework development, making legal and regulatory

changes to enable organizations, institutions and agencies at all levels and in all

sectors to enhance their capacities.

5.12. Activities of Environmental NGOs

i. Awareness raising, education and training services;

ii. Undertaking research;



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iii. Undertaking review and monitoring activities;

iv. Participating in project implementation and service provision;

v. Campaigning, mobilizing and organizing citizens in support of a

particular issue or cause;

vi. Lobbying government, business or other stakeholder advocacy;

vii. Working in partnership with the private sector and local authorities to

viii. enhance sustainability/reduce pollution; and

ix. Communicating environmental data

5.12.1 Strengths

From the point of view of government there are a number of positives one can point to:

i. That government has passed legislation for protection of the environment

ii. That some legislation does promote public participation

iii. That some legislation does provide for access to justice both in the administrative

and judicial sense

iv. That legislation establishes institutions for the implementation of the Act

5.12.2. Challenges

There are challenges that need to be address. These challenges include:

i. Lack of skilled manpower

ii. Lack of funds

iii. Inadequate oversight of projects

iv. Lack of clearly defined regulatory framework

None state actors also face serious challenges which include:

i. Lack of funding: NGOs in Botswana rely largely on donor funding. Ever since

Botswana was declared a middle income country, donor agencies gradually



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pulled back as they believed Botswana was no longer a priority country for

donor funding. This pull out of donor agencies from Botswana seriously

impacted on NGOs. NGOs are challenged when it comes to developing their

outreach programmes and even employing and retaining skilled staff.

ii. Lack of skilled Personnel: Because they are challenged financially, it is difficult

for them to employ and retain skilled personnel.

A summary of capacity constraints that hinders access to environmental justice is

presented in Table 5 – 3.

Table 5 - 3: Summary of areas of capacity constraints

Area/ Issue requiring attention

Relevant Capacity constraint

for problem area

Possible development

List of prescribed activities Lack of skilled personnel Intensify training

Monitoring Inadequate oversight Training and engagement of

more personnel

Laws that tend to overly rely on

criminal law sanctions

Lack of skilled personnel Provide for alternative

dispute resolution methods

5.13. Suggestions from the general public on access to environmental justice Some of the suggestions made by the public are listed below;

Environmental laws should be amended to conform with the Constitution, for

example on relation to public participation in land use planning.

As there is a gap in specifying projects that must conduct an EIA, the law should

spell this out more clearly

The general public must have equal access to justice in environmental decision-

making.

A legal system is not the only mechanism to ensure access to justice. Alternative

ways and means should be explored to provide opportunities to the general



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public to actively participate in a decision making process at relevant levels.

Information used in the process must be legitimate and publicly acceptable.

Decisions should made base on consensus, not voting.

There are inadequate legislative instruments to empower citizens on

environmental issues. The Constitution does not directly confer environmental

rights to citizens nor do other pieces of environmental legislation in place.

There is no effective implementation of existing environmental laws resulting in

continued committal of offenses and non-compliances but limited action.

Addressing issues through courts of law is very expensive hence denying many

ordinary citizens to justice.

Promotion of awareness and education to change people’s attitudes should be

given priority because public attitude towards the environment leaves a lot to be

desired, hence the numerous non-compliances and contraventions of the laws.

There is limited public awareness and education on environmental legislation in

place especially at local community levels. This therefore calls for environmental

campaigns to raise people’s level of awareness on environmental legislation.

Existing environmental legislation are fragmented leading to unnecessary

overlaps, inconsistencies and conflicts. There should be an overarching

legislation that can bring together environmental issues to minimize conflicts.

Environmental legislation fines are low compared with those of other sectors of

the economy. This in the process encourages non-compliance and contraventions

of the laws.

5.14. RECOMMENDATIONS/ ACTION ITEMS • Intensify training of personnel to address skills shortage. This is to address the

acute shortage of expertise in the environmental field.



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• Intensify public awareness campaigns to promote public participation. One of

the main reasons for the lack of participation by the general public is lack of

awareness of issues arising in the environmental field and the relevant laws. This

will go a long way in ameliorating this problem.

• Enact laws that provide citizens with express rights to the environment and of

recourse to the courts. This study has shown that where the right to a decent

environment is expressly provided for in the law especially the constitution,

people tend to assert their rights more actively in the courts, and tend to be more

confident than when the right is only implied. The Constitution should be

amended to expressly provide for a right to a decent environment.

• Enact laws that provide for an express right of access to information in the

possession of authorities. People can better assert their right to a decent

environment when they are informed. It is therefore of paramount importance

that they should have access to information in the possession of public officials

and other entities. As well, this will translate into an obligation on the part of

those who possess information to provide it.

• Enact laws with express participatory rights in the formulation of policies, plans

of action and programmes. This will promote public buy-in and enhance

participation by the public.

• Consider introduction of legal aid legislation which will help enable citizens to

access the courts for redress. Currently, legal services are very expensive and

unaffordable to a great of ordinary citizens. This will promote access to

environmental justice.

• Consider resourcing environmental NGOs to enable them to play a meaningful

role in environmental discourse. This will enable NGOs to develop effective



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outreach programmes which will greatly complement government efforts in

addressing environmental issues.

• Intensify environmental education at lower levels of our education system by

introducing more elements or subjects of instruction. This will inculcate a sense

of environmental awareness and responsibility in our school children and

students. In the long run Botswana society will be an environmentally informed

and conscious society.

5.15. Overall conclusion The general trend emerging from this study is that access to environmental justice in

Botswana is inadequate. Some of the reasons for this situation are that there is no

specific provision for such a right in the constitution and many other pieces of

sectoral legislation. This creates some measure of uncertainty on the part of people

who would otherwise assert the right was it clearly spelt out. This has resulted in

people relying on surrogate rights to enforce what in effect is a claim to a decent

environment.

It is therefore very desirable that the laws are framed in such a way that they

provide for express rights to the environment. Allied to this, it has been urged that

an express right to participate be provided for in legislation. The same goes for a

right of access to information. The notion of justice depends on firstly, access to

information, and secondly to awareness of the rights on the part of the citizens. Only

when possessed of that information can the public be expected to participate

meaningfully in the formulation and application of policies, programmes and

generally environmental discourse. Once these are in place, the citizens are enabled

to access justice should they be aggrieved by particular decisions, policies and or

programmes.



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CHAPTER 6. IMPLEMENTATION OF PROCEDURAL ENVIRONMENTAL RIGHTS FOR SPECIFIC ENVIRONMENTAL SECTORS AND PROBLEM AREAS

6.1. Introduction This section document access to environmental information, public participation in

environmental decision making and access to justice for various government

departments in order to assess procedural rules particular to their operations and

mandates. Two case studies were undertaken; one based on the existing legislation and

another on an operational policy in order to make a detailed situational analysis of the

procedural rights.

6.2. Chemical Management

Department of Public Health The mandate of the Department of Public Health is to develop and implement public

health policy as well as ensuring that public health goals are met. The department

manage relevant operations including planning, coordination, setting standards,

monitoring and evaluation of public health services as well as providing technical

support and guidance to partners/stakeholders.

Access to Information Most of the services provided by this department are free of charge. Even though it

implements the public health policy, it does not control the sitting of chemical

industries. It is however tasked with the responsibility of making sure that the public

live in a clean and healthy environment. To sensitize the public on chemical

management the department raises awareness through chemical management seminars,

health fairs, booklets, pamphlets and by publishing articles in newspapers. Labeling of

chemicals is now mandatory.



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Public Participation Campaigns are held throughout the country to sensitize the public on chemical

management. The general public participates in seminars and workshops organized in

their respective areas. The public responds well to efforts by the department and have

even formed committees to combat issues of illicit dumping of chemicals in the

environment.

Access to Environmental Justice There is no legislation at the moment backing chemical management but the chemical

management division uses the Public Health Act. A bill is being developed on Chemical

Substances. Even though the department is striving to reach its goal there are other

constraints of the umbrella legislation to back chemical management issue.

6.3. Nuclear Energy

Department of Radiation Protection Mandate The Department of Radiation Protection was established in April 2008. Its mandate is

to administer the safe use of atomic energy and nuclear technology. To achieve its

mandate, the department carries out licensing and statutory inspections of all facilities

that use nuclear sources and radiation generating equipment such as x-ray machines.

As such, the department is responsible for enforcing the following:

• Medical exposure control, which prevents possible cases of overdose to

patients during cancer treatment,



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• Occupational exposure control for protecting employees working with

nuclear sources against adverse effects of radiation that can lead to cancer,

sterility and other associated illnesses;

• Public and environmental exposure control for protecting the public, flora and

fauna from short as well as long term effects of ionizing radiation.

• And emergency preparedness and response for mitigating the effects of

radiological emergencies that can result in injuries to people, contamination of

the environment and damage to property.

Access to Information The department has 126 radioactive facilities in Botswana including hospitals,

construction companies and mining and manufacturing industries. The department

produces booklets, side boards, brochures which are free of charge to educate the public

on radioactive substances. There are cases where the public has raised complains about

radioactive substances and the department had to intervene.

Public Participation The public participates in most of the department’s exhibitions in different

commemorative days. Some of the information is translated into Setswana for the

public to understand. The department also conducts trainings for different stakeholders

who use radioactive substances.

Access to Environmental Justice The department uses the Radioactive Protection Act and Legislation to deal with

handling and usage of radioactive substances.The challenge that the department is

facing at the moment is on the perception of the public towards radioactive substances.

International Atomic Energy Agency helps the department with expertise and

information.



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6.4. Botswana and Climate change Botswana and climate change Climate change refers to an increase or decrease in average global temperatures.

Natural events and human activities are believed to be contributing to an increase in

average global temperatures. This is caused primarily by increases in “greenhouse”

gases such as Carbon Dioxide (CO2). The arid conditions of Botswana and recurring

droughts make Botswana vulnerable to climate change. The most affected sectors are

water supply and food security.

Botswana has undertaken greenhouse gas inventories as well as vulnerability and

adaptations studies of various sectors of the economy to global warming and climate

change. Technology assessments of technologies and practices to minimize the effects of

climate change have also been identified.

Sectors of the economy that were assessed for vulnerability and adaptation are:

• Health

• Crops

• Grasslands and Livestock

• Water

• Forests

Effects of climate change on different sectors Crop Sector Maize and sorghum are the primary crop food in Botswana, occupying about 75% of

the total agricultural cropland, and is grown by all the farming sectors (about 70 percent

by communal farmers and 30 percent by commercial farmers). An assessment of these

commonly grown crops was undertaken and the results show a 30% decrease in yield

as the temperature increases.



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Source: Department of Meteorological Services Water Sector The study carried out by Zhou and Masundire (1998) on vulnerability and adaptation

to climate change for hydrology and water resources revealed that under normal

population growth rate, all catchments will have a short fall in water whether climate

change occurs or not. A substantive hypothesis was that climate change will alter the

surface water supply in Botswana within the 1990 to 2075 horizon. Water demand may

also rise as a result of climate change induce temperature rise (Zhou and Masundire ,

1998). The catchments supplying Gaborone area will have the highest shortfall.

Grasslands and Livestock The grasslands and livestock is an important sector for Batswana who derive most of

their livelihood from livestock. According to Setshwaelo, (Report on grassland

/livestock vulnerability, 2001) the livestock and grasslands sector under global

warming and climate change will result in losses in productivity of rangeland (and

grass species changes), soils, livestock and resulting in income losses. This is also a

sector affected by water availability and performance in the vegetation/forestry sector.

He also highlighted that where long term climatic changes occurs there will be changes

in plant species and biodiversity as a result of ecosystem’s adaptation to climatic

conditions. The climate change will also result in the reduced productivity of rangeland



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as well as an increase in mortalities among ruminant livestock, animals struggles to

survive utilizing available nutrients top maintain critical life supporting metabolic

functions (Setshwaelo, 2001).

Dry lands Source: Department of Meteorological Services Forestry Sector Climate change in Botswana will cause significant changes in prevalent vegetation and

rangeland cover, and this will consequently affect species types, composition and their

distribution, as well as those who depend on them and further desiccation of the

climate could therefore be expected to degrade the current stands.

Health Sector According to a report done by Bagwasi and Ndzinge in 2002, climate change will shift

the endemic malaria region to the south and increase the prevalence of diarrhoea (an

example is the diarrhoea outbreak over the Central District and the malarial outbreak

on Kweneng during 2005/06 rainfall season) where fatalities were recorded. Diseases

such as Dengue Fever, Rickettsia, Cholera, Yellow Fever and Bilharzia may potentially

be affected by changes in temperature and water availability, as may respiratory

diseases (such as asthma) and heat stress.



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Adaptation measures that can be put in place to address climate change

Water Sector

o Developing more borehole water coupled with desalination for the saline

waters. National Development Plan 7 estimated extractable borehole of

100 000 mega cubic meters (mcm) from various water fields across the

country (Zhou and Masundire, 1998).

o Rainwater harvesting

o The most viable option is water recycle and re-use. The City of Gaborone

is already re-using some of its wastewater. It has been recorded that 70 –

80% of water used in urban Gaborone reaches the sewage plant. The plant

design anticipated for actual recycling in the near future is about 40 000

mega liters per day (Zhou and Masundire, 1998).

o Inter-basin transfers from possible sources such as the Zambezi,

Okavango and Congo basins. The North South water carrier is an

example. These basins have long term run offs 40750 mcm and 99010 mcm

and have enough water sources to meet Botswana’s needs. (Zhou and

Masundire, 1998)

Grasslands and Livestock Sector:

o Providing cattle feed subsidies and subsidies for drilling boreholes for

livestock watering.

o Community based rangeland management.

o Cattle and livestock management could limit the numbers and coupled

with high value stock could still sustain productivity.

Crops Sector:

o Use crop varieties with shorter growing seasons.

o Planting dates also need to be defined and extension services on the

matter provided.



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o Zero tillage and precision farming are adaptation measures.

Forestry Sector:

o Rehabilitation of degraded areas

o Discouraging indiscriminate harvesting of forest resources and

introducing quota system for harvesting of veldt/forest products

o Subsidizing alternatives to forest products

o Tree planting using appropriate species

Health Sector:

o Information monitoring on vector progression and other diseases in order

to advise authorities appropriately.

Challenges

Some of the challenges facing Botswana in terms of adaptation to climate change

include:

• Technology transfer –limitation of forecasting the degree and extend of changes

in climate change factors as well as bio-climate information.

• Public awareness and capacity building.

• Policies – the policies do not necessarily encourage better and sustainable use of

rangelands as a risk management strategy against the impact of future droughts

• financial barriers

• Research and systematic observations

Policies and measures

There is no dedicated policy to respond to climate change in Botswana, but the potential

for future climate change and the associated environmental threats is acknowledged in

the National Development Plan 10. Climate change issues are addressed in a

combination of different policy areas. Underpinning all policy development in

Botswana is the recognition that long term growth must be sustainable. Specific climate



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adaptation and mitigation policies are already in place in some sectors, such as the

strong Governmental support for solar energy technologies in the energy sector.

Policies such as National Master plan on Arable Agricultural Development; Accelerated

Rainfed Arable Programme etc are also such policies that acknowledge climate change.

Implementation of the Convention on Climate Change The Initial National Communication (INC) for Botswana to the United Nations

Framework Convention on Climate Change (UNFCCC) was prepared and submitted to

the UNFCCC Secretariat in 2001. The chapter on vulnerability and adaptation identified

Botswana’s vulnerabilities to global climate change. The INC shows the sensitivity of

different economic sectors to future climate change. However, the National

Communication had spatial scale problems and the methodologies for vulnerability

analysis had little stakeholder participation. The adaptation measures highlighted in the

INC also needed validation from stakeholders.

The INC identified three areas of support from international communities in order to

continue to promote climate change action agenda in Botswana, namely capacity

building, research and systematic observation, and technology needs.

Capacity-building: The development of highly skilled human capacity, particularly in

relation to the understanding of complex human-environment systems such as climate

change is needed. Specifically, capacity support is needed to improve understanding of

Botswana’s vulnerability to climate change, understand the interaction between

economic activities and emissions of greenhouse gases, improve models and

observations specifically suited to Botswana, and finally to enhance the ability of policy

makers to support a sustainable development pattern that takes climate change into

account. Increasing awareness of climate change in the general public is an additional

capacity-building activity that is currently being conducted through radio programmes,

through school and university programmes and general awareness campaigns.



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Financial support is needed to promote and further the progress that has already been

made in capacity building at all ages and levels of Botswana society.

Research and systematic observations: Considerable research is still needed to reduce

uncertainties in the emissions inventory, particularly in the land use change and

forestry sector. The investigations of the vulnerable sectors identified so far revealed a

common need for baseline information to be improved. A comprehensive investigation

into the proposed mitigation options is also suggested in which costs, benefits,

feasibility and cultural acceptance are carefully considered. Support for systematic

observations which provide climate information is also needed.

Technology needs: Access to technology, specifically regarding predictive models,

remote sensing and adaptation, is needed – especially in the agriculture, livestock,

water supply and health sectors. Energy efficient technologies in the mining, industrial,

energy, housing and transport sectors are also called for. Skills in technology

assessment must be developed to enable decision-makers to select and promote

technologies that are feasible, practical and meet the needs of both climate change

considerations and human development.

Preparation of the Second National Communication (SNC) to the UNFCCC and issues being considered: The objective of SNC is to develop and enhance national capacities and facilitate the

process of mainstreaming climate change issues into national planning and policy, thus

enabling the country to deal with climate change and consider it not only as

environmental issue but as an issue of sustainable development. Work under the SNC

will further enhance the national capacities and will raise awareness on the climate

change issues. It will also contribute to putting climate change issues higher on the

national agenda through strengthened cooperation and increased involvement of all

relevant stakeholders in the process.



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Botswana and the Kyoto Protocol Botswana stands to benefit in the area of Carbon Finance. Financial mechanisms of the

Kyoto Protocol namely the Clean Development Mechanism (CDM) provide

opportunities for Carbon Trade. Huge coal reserves that Botswana is endowed with

will help Botswana meet her development objectives. We are seeing energy concerns

and more developments in the sector where the coal reserves will be exploited. To

benefit from this provision of the Clean Development Mechanism of the Kyoto Protocol

of the Climate Change Convention, The Ministry of Environment Wildlife and Tourism

has established the Designated National Authority (DNA) to oversee the Carbon

Trading operation for Botswana.

The Carbon Finance of the World Bank is working with Ministry of Environment

Wildlife and Tourism on the capacity building of the DNA.

6.5. Energy Resources The Energy Affairs Department (EAD) is responsible for the formulation, direction and

coordination of the national energy policy. The overall policy goal for the energy sector

is to provide affordable, environmentally friendly and sustainable energy services in

order to promote social and economic development. Various energy sources in

Botswana are discussed below.

Coal Botswana has vast deposits of coal with a total estimate of 212 billion tonnes. These coal

resources are available in eleven coalfields situated mostly on the north-eastern part of

the country. Currently, there are only two measured (proven) coal reserves at Morupule

and Mmamabula coal basin with a capacity of 7.2 billion tonnes and at the moment

Morupule Colliery, situated in Central district, is the country’s only coal mine in

operation. The coal consumption of Botswana is around 1 million tons per annum. More



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than 50% of it is utilized for power generation by Botswana Power Corporation (BPC).

Other major coal users include BCL Copper Nickel Mine (BCL) and Botswana Ash

(BOTASH). The three industries, BPC, BCL, BOTASH are utilise about 89% of the total

coal produced and the remainder is used in hospitals and in schools.

Electricity The unit coordinates, implements and monitors electricity policy developments,

projects and programmes within the country. It administers the Electricity Supply Act

(ESA) and related regulations such as issuance of electricity generation licenses and

compliance to ESA. Currently access to electricity stands at 58.1% nationally.

Biomass Biofuels and biogas hold enormous potential for Botswana’s energy and agricultural

sectors hence the Department of Energy treats it as an absolute priority. However, in

Botswana the concept or technology of biofuels and biogas is still in its infancy, thus

stakeholders such as the general populace, government officials and private sector are

still learning about it.

In Botswana fuelwood or firewood is regarded as the major source of energy especially

in the rural areas. This energy source accounts for 92% of rural households’ energy

needs and is used by 43% of the urban households. Not only is it utilized by

households, fuelwood also serves as the sole energy resource for some institutions.

Solar energy

Botswana receives over 3200 hours of sunshine per annum and the average daily

radiation on a horizontal surface is 21 MJ/M2. This puts Botswana among the highest

solar radiation regimes of the world. However access to solar energy currently remains

low at 0.3%.



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Oil and gas Currently, Botswana consumes about 833 million litres of petrol, diesel and paraffin.

Petrol and diesel accounted for 415 million and 409 million litres while paraffin demand

accounted for only 9 million litres during 2008. The annual growth in the demand of

petrol and diesel is estimated at about 5%.

Access to environmental information Access to information depends on the nature of information requested, not all

information is for public consumption and usually information on internal processes

and issues is normally not for public unless it’s of public interest. Information on

programmes, projects, the energy policy and public events is accessible to the public on

request and also the Department uses mass media, meetings, workshops and

exhibitions to inform the public about energy issues. Information is availed on request

to the public through, phones, emails, letters and face to face or during exhibitions. The

public can also purchase the Electricity Supply Act from Government Printers.

The public is normally involved from the initial stages of projects, where they are

informed of upcoming developments in their area and they are normally given a chance

to comment on the proposed developments. They also play a part during

environmental impact assessment which is a requisite from the Department of

Environmental Affairs.

Levies/Taxes and Use A levy of 5t/kwh is charged on electricity consumers for purposes of contributing to a

National Electrification Fund. The fund is expected to achieve the following:-

i. Increased access to electricity, thereby improving the quality of life of the

people. The aim is to increase access from the current household’s

connectivity of 58% to a targeted 80% by 2016.



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ii. Fostering equitable sharing of benefits and costs

Contribution towards achieving sustainable economic diversification as adequate

provision of energy is a prerequisite for successful industrialisation.

The Department collects levies and duties from the Oil industry for the importation and

sale of petroleum products. Below is a list of all levies collected in Botswana which all

the filling stations are expected to pay;

a. Fuel Levy – 21 thebe per liter for petrol and 12 thebe per liter for diesel.

This levy is collected by the Botswana Unified Revenue

Services(BURS) at the point of entry (i.e. at the border)

b. Road Fund – 10 thebe per liter for petrol and 10 thebe per liter for

diesel. This levy is collected from the sales of the products by

Department of Roads

c. National Petroleum Fund Levy - 9 thebe per liter for petrol and 9 thebe

per liter for diesel. This levy is collected from the sales of the products

by the Energy Affairs Division. National Petroleum Fund meet the

construction and operational costs of the strategic oil storage facilities

for the government, purchase petroleum products for government

strategic stocks, stabilize petroleum prices, cover insurance policies of

Government strategic oil installations and stocks.

d. Motor Vehicle Accident Fund - 9.5 thebe per liter for petrol and 9.5

thebe per liter for diesel. This levy is collected from the sales of the

products by Motor Vehicle Accident Fund.

The public is aware of these levies as their increase and decrease is constantly

communicated to the public though mass media and meetings. Introduction of any levy

is always communicated prior to its implementation.



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Public participation in environmental decision making Public consultations are carried out through, Kgotla meetings, mass media and

workshops and invitations are normally sent out through letters. The target audience

during consultations depends on the issues at hand and normally most stakeholders are

invited. Energy planning is done by the Department through consultations with

stakeholders. Decisions on sources and infrastructure are based on the following;

• Energy sources available in an area

• Funds available

• Distance from existing infrastructure (e.g. distance from the grid lines for

electricity connection)

General Energy planning decisions The Department of Energy makes analysis of the energy needs in the country and

design projects to address the needs. These projects are approved by the Ministry of

Minerals, Energy and Water resources who in turn seeks for finance from the Ministry

of Finance and Development Planning. Factors that are considered in approving

projects are;

• Environmental impact of the project

• Availability of funds

• Socio economic impact of the project

• Consideration of alternative projects

Licensing Electricity generation license is issued by the Minister of Minerals, Energy and Water

resources. The public is not involved in this process.

Inspections of projects

• Inspection of projects (e.g. generation facilities, rural electrification projects,

construction of coal depot) is done by the Department in some cases with the



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assistance of management companies. The public is not involved in inspections

as most of the projects are technical.

Access to environmental justice

There is currently no holistic energy regulation governing all energy issues including

access to justice concerning public access. Sector specific energy issues are covered in

different sector energy Acts and Regulations.

Petroleum products

Through Control of Goods and Prices and other Charges Act, CAP 43:07, justice on

petroleum products prices are well covered since government controls and monitors

prices. Currently the Department of Energy Affairs is working towards the

development of Petroleum Products and Handling Regulations which will holistically

take into consideration access to justice.

Electricity The issues of public safety and access to justice are fully covered in the Botswana Power

Corporation Act and Electricity Supply Act of 2007 and issue specific regulations.

The other sectors of the energy supply are yet to develop regulations to provide

adequate legal coverage of social justice to access as well as governing and monitoring

the operations supply chain. The establishment of the Energy and Water Regulator will

ensure that the regulations satisfy all the socio-economic interest of our communities.

Evaluation of existing capacities and constraints Human Resources The Department of Energy Affairs faces challenges in its operations as it has shortage of

staff, has experienced high staff turnover as engineers leave for private companies.

However the department has been able to deliver its mandate with the current staff.



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Information Resources The Department has produced a number of publications through its communications

unit that include booklets and studies but storage of such information remains a

challenge as there is no library.

6.6. Biodiversity and Nature Protection The Department of Wildlife and National Parks has the primary mandate to promote

the conservation and management of Botswana’s wildlife and fisheries resources. The

Department manages an area of about 37% of the country’s surface area comprising of

protected areas, wildlife management areas and several water bodies with fisheries

resources. It effectively conserves the fish and wildlife of Botswana in consultation with

local, regional and international stakeholders for the benefit of present and future

generations. The department promotes and facilitate sustainable utilization of fish and

wildlife resources through active participation of citizens. We place emphasis on

partnership with the private sector to fully develop the potential of fish and wildlife

resources.

What is Biodiversity? It refers to the total sum of variation of all animals and plant life, from ecosystem

variation all the way down the hierarchical ladder to individual genetic variation. It is

the variability within and among living organisms and systems they inhabit.

Botswana has 900 known species of amphibians, birds, mammals and reptiles. Of these,

0.8% is endemic, meaning they exist in no other country, and 1.7% is threatened.

Botswana is home to at least 2151 species of vascular plants, of which 0.8% are endemic.

Between 1990 and 2000, Botswana lost an average of 118,300 hectares of forest per year.

The amounts to an average annual deforestation rate of 0.86%. Between 2000 and 2005,



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the rate of forest change increased by 9.5% to 0.94% per annum. In total, between 1990

and 2005, Botswana lost 12.9% of its forest cover, or around 1,775,000 hectares.

Measuring the total rate of habitat conversion for the 1990 - 2005, Botswana lost 3.7% of

its forest and woodland habitat.

Despite a number of increasing threats, the abundance, distributions, and movements

of mammalian wildlife are poorly understood. Further, local economies rely on wildlife

almost exclusively through subsistence hunting and gathering and ecotourism

including photographic and hunting safaris. Current knowledge of wildlife population

trends is based upon surveys conducted from an airplane. Due to poor coverage and

numerous visibility biases inherent in aerial surveys, they provide very rough estimates

of wildlife populations. All species are undercounted and many species are never

detected at all.

Policies: Wildlife Conservation Policy of 1986 This document is the overarching policy document pertaining to the conservation and

sustainable utilization of wildlife in the country. The specific objectives of the current

policy are to: realize the full potential of the wildlife resource which, in periods

unaffected by drought, is running far below its sustainable yield capacity; develop a

commercial wildlife industry in order to create economic opportunities, jobs and

incomes for the rural population and to enable more rural dwellers to enter the modern

wage economy; and Increase the supply of meat as a consequence of the further

development of wildlife commercial utilization.

However, many new ideas and concepts have evolved over the past years, while

wildlife conservation and sustainable utilization have advanced considerably. These

developments necessitate a review of the existing policy. It focuses on issues like



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biodiversity conservation, species management, public participation and investment in

conservation.

Game Ranching Policy & Ostrich Farming Policy

Through the Game ranching and ostrich policies (2002) there has been a marked

increase in the number of game ranches/farms from the initial 40 to the current 81.

These in fact add to the total area of the country put under wildlife conservation.

Rhino Management Strategy

Botswana is a Rhino Recovery State that has been successful with reintroductions

through efforts from the Department of Wildlife and National Parks (DWNP) and

stakeholders. A number of rhinos in the country are owned by stakeholders and the

DWNP oversees the management of all the rhinos in the country. The implementation

of the Rhino management strategy (2005) has resulted in building up the rhino

population that became almost extinct in the 1970s to a national herd of over 90 animals

currently.

Community Based Natural Resources Management Policy (CBNRM)

The approved Community Based Natural Resources Management Policy (CBNRM of

2007) is giving impetus to the philosophy of tying rural development to natural

resources conservation, a practice that has been ongoing for the past 15 years. Already,

18 Community Based Organizations (CBOs) are benefiting from the programme. Many

rural households have engaged in fish and wildlife.

Exotic Species Policy

A variety of exotic animal and plant species that have been brought into the country

either intentionally (as pets or for farming/ranching purposes) or unintentionally,

particularly insects, rodents, seeds. These pose a threat to indigenous species as they

may alter their genetic integrity or easily out-compete them. The extent of genetic



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contamination that may have occurred due to them inter-breeding between exotics and

indigenous species is unknown.

A policy is being drafted that will endeavour to rationalize the existence of existing

exotic species and institute measures that will minimize their interaction with free-

ranging indigenous wild populations. It will also provide a framework for regulating

future introductions and the management of exotic species.

Transfrontier Conservation Areas

Botswana has over the past forty years embraced the role of an important player as a

member of the international community. Noting that the wildlife resource base respect

no boundaries and would better be co-managed with her neighbors the country has

entered into the establishment of Trans-Frontier Conservation Areas (TFCAs). The first

TFCA in Africa was the Kgalagadi Trans-Frontier Park (KTP), for which Botswana and

South Africa signed a treaty in 1999 and launched in 2000. Since then the TFCA drive

has gained momentum. A Memorandum of Understanding for the creation of the

Limpopo Shashe TFCA was signed with South Africa and Zimbabwe in June 2006.

Consultations for the establishment of the Kavango–Zambezi (KAZA) TFCA involving

five countries of Botswana, Namibia, Zambia, Zimbabwe and Angola are at an

advanced stage. In addition DWNP has ratified and now implementing two SADC

Protocols, one on Wildlife Conservation and Law Enforcement, and the other on

Fisheries management.

Legislations:

Wildlife Conservation & National Parks Act No. 28 of 1992

The Fauna Conservation Act of 1961 has undergone several reviews over the years

giving birth to the Wildlife Conservation and National Parks Act of 1992, and associated

subsidiary legislation.

Compensation



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Government introduced the payment of monetary compensation for damages to

property caused by wildlife through amendment of Section 46 of the Wildlife

Conservation and National Parks Act of 1992 through Presidential Directive CAB

35/93. Prior to 1994, people were compensated for damage caused by wildlife by being

allowed to keep trophies of the animals that they killed in defence of their property.

When compensation was introduced, it did not impose any limit on the species for

which such compensation would be payable. However, it quickly became apparent that

this unlimited payment of compensation was too unwieldy and required an excessive

amount of manpower for its implementation and was also expensive.

For this reason, Cabinet decided, in 1996, through Presidential Directive CAB 17/96, to

limit the payment of compensation to those animals listed as dangerous animals in

Schedule 9 of the Wildlife Conservation and National Parks Act of 1992. These animals

are lion, leopard, hippo, rhinoceros, elephant, buffalo and crocodile. The primary

reason to limit compensation to dangerous animals was that it is difficult for people to

defend themselves against such animals.

At the beginning of the 2005/2006 fiscal year the number of animals which their

damages attracts monetary compensation were increased from seven to nine. The

additional species are wilddog and cheetah. The increase in compensation rate did not

go through and the rates remained the same.

The Department started paying compensation directly to people who suffered due to

wildlife damage as of July 2004, taking over from District Councils who have been

handling compensation funds and making payments since its inception in 1994. The

new system proves to be far much more efficient as the backlog of unpaid and

unattended cases has reduced drastically.



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Access to Information

i) Designation of protected areas and species:

At independence 17% of the country was set aside as protected areas (game reserves

and national parks). Forward planning has resulted with an additional 20% of the land

area earmarked as Wildlife Management Areas (WMAs). Four Educational Game

Reserves have been established in Gaborone, Maun, Otse and Francistown to provide

recreation for urban dwellers and a learning resource for educational groups. This is in

consonance with the first pillar of Vision 2016, “An Educated and informed Nation”

The vision attest to the fact that Botswana’s natural resources are an important asset to

the nation. Educating Batswana about the value of this public good is paramount.

ii) Rules applying to the selected use (e.g. prohibitions, limitations):

Anti –Poaching

In the year 1988, the Department of Wildlife and National Parks formed the anti-

poaching Unit within the department. Responsible for combating poaching or illegal

off-take of fish and wildlife which is among the threats to the continued existence of fish

and wildlife resources in Botswana. In service and newly recruited officers were

deployed into the unit. By then, there was a lot of poaching in regard to elephants and

rhinos.

iii) Protected species/areas inventories:

The primary role is to ensure and develop National Parks, Game Reserves and

Educational Parks and to implement area specific management plans in accordance

with international principles and standards. The function also embraces coordination

and promotion of conservation of shared wildlife resources that occur in adjoining land

units straddling international boundaries through the establishment of Transfrontier

Conservation Areas. It is further charged with the responsibility of promoting

sustainable utilization of fish and wildlife resources and issuance of permits and

licenses in line with the fish and wildlife legislation.



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Fisheries

DWNP devise strategies for long term development of fisheries in natural systems

within their productive limits, and ensure maximum utilization of man made reservoir

by introducing fish as a non-consumptive use of water in these water bodies. It will also

promote aquaculture development as a complimentary occupation geared towards

employment creation, income generation and provision of high quality protein for

sustaining rural livelihoods.

Public Participation

In the true spirit of partnerships with its stakeholders, DWNP has designed

promammes that have taken a turn to be also people focused. Consultative fora are the

order of the day in which input from civil society, NGO, private sector, academia, both

local and international is sought, particularly in fine-tuning its strategic plans. It is

through this approach that a truly “Prosperous, productive and innovative Nation”

will be born as espoused in the national vision.

DWNP covers a wide area of extension services such as community mobilization and

development, outreach, environmental and conservation education, publications and

broadcasting.

a) Community development

The unit’s main responsibility is to conduct sociological research in order to introduce

wildlife and other natural resources projects of significant value to the rural

populations. It is also responsible for undertaking baseline studies in communities to

determine opportunities and constraints.



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b) Outreach

The unit covers community mobilization and outreach programs that include holding

kgotla meetings, schools address, workshops/seminars for members of the public on

wildlife management and conservation.

c) Community Mobilisation and Outreach Programs

The program is aimed at creating awareness among the people of Botswana on the

importance of wildlife and the need for conservation.

d) School Outreach Programs

The program gives support to schools and other educational institutions through school

addresses, workshops, educational tours and exhibition in fairs.

e) Support Association of Wildlife Clubs of Botswana.

The program covers the support and coordination of activities of the AECB at national

level with the assistance from the district wildlife offices. The program is extended to

schools and individual members through workshops, meetings, publications and

conservation rallies.

f) Information Services

The unit is responsible for the dissemination of information through the publication and

broadcasting of DWNP information. The department’s library has a variety of journals

and books on wildlife issues. The broadcasting of the department’s information is

currently done on the radio only. Plans are at an advanced stage to service the TV slot

that has been allocated to the DWNP and Department of tourism.

i) Designation of protected areas/species and determination of relevant rules (e.g. hunting,

fishing and planting):



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Central to the activities of all National Parks and Game Reserves are management plans

that guide and control the management of protected area resources, the uses of the area

and the development of facilities needed to support and ensure long-term sustainable

use of these areas. DWNP manages three national parks namely Chobe, Kalahari

Transfrontier, Makgadikgadi/Nxai pans and three game reserves namely Central

Kalahari, Khutse and Moremi together with educational Parks at Gaborone,

Francistown, Manyelanong and Maun.

iii) Inspection of activities having repercussions: Fisheries Resource Monitoring in the Okavango Delta.

Three sites (Seronga, Ngarange, and Guma lagoon) have been selected for monthly fish

sampling using a fleet of multi-mesh gillnets. This continues to be a problem area for

the department. While the Chobe River inside the Chobe National Park provides good

fishing for Namibian nationals it remains inaccessible for Batswana fishers because of

varying land use patterns in the two neighbouring countries. Flooding outside the park

in the Chobe enclave lasts for some three to four months providing limited fishing

grounds. In the Linyanti area fishing has to be conducted in consultation with area

concessionaires.

Access to justice

Problem Animal Control

Problem Animal Control is arguably the most controversial in the whole department

as it deals with the security of people’s property. The main goal is to assist people to

protect their property from wildlife. Further, to assess wildlife damages and dispense

compensation within reasonable time frames. The Department also has a programme

for training communities in problem animal techniques.



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In 2000, the Ministry published Statutory Instrument No. 70, which restricted the killing

of lion and cheetah as problem animals. This was out of concern at the rate at which the

two species were being killed as problem animals in some areas. This subsequently led

to Statutory Instrument No. 1 of 2001 banning the hunting of lions. Lions were not

included in the quota for subsequent hunting seasons. The Statutory Instrument No. 70

was partially lifted in 2004 and it allowed the killing of lions as problem animal with

some conditions while cheetah restriction stood. In view of these developments, lions

were included in the 2005 hunting quota.

In October 2005 the Department introduced the control of elephant with chilli pepper to

communities which live adjacent elephant habitats. Training on the use of chilli pepper

to repel elephants was conducted by an official from the Zambezi Elephant pepper

project (Zambia) in Gumare for the Okavango communities and wildlife officers.

Training is provided to areas with elephants. Plans are at an advanced stage to procure

pepper for extensive demonstrations in these areas.

6.7. Department of Town and Regional Planning The Department of Town and Regional Planning (DTRP) was established in 1972 to

manage the growth of urban and rural settlements. The overall responsibility of the

Department is to facilitate orderly and sustainable spatial development in Botswana.

The Department’s main broad functions are;

• To develop sound national physical planning policies and strategies for adoption

and implementation by relevant authorities.

• To administer and give direction on the implementation of the Town and

Country Planning Act.

• To advise the Minister of Lands and Housing and the stakeholders on matters

relating to physical planning.



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In order to carry out these functions effectively, the Department is divided into five

divisions namely Country Planning; Settlement Planning; Research and Information;

Cartography and Draughting, and Administration. These divisions have sections under

which specific functions are carried out more closely.

DTRP currently performs physical development planning at three levels namely;

regional planning, settlement planning and local planning. All physical development

plans are widely prepared for different areas. Content and adopted mapping scales

vary accordingly and they are composed of two major components that is, (i) a written

statement/document and, (ii) a map(s).

Different Land Uses and Trends

Department of Town and Regional Planning carry out studies time and again to

ascertain on land issues. One such study has shown an emerging trend where people

are now changing landuse from residential plots to commercial plots in Molepolole.

Another trend is that in the periphery of Gaborone residential plot are being converted

into Multi-family residential.

Table: Policies, legislatures governing land uses in Botswana.

Land Use/Tenure

Policies

Legislation

Limitation

State land Land Allocation State land Act Developments that were suppose to be left to state lands have now expanded into tribal land

Tribal Land Tribal Act The town and country planning Act is the one which prescribes the planning standards. For there is no legislation that prescribes standards for tribal land

Freehold Farms Tribal Land Grazing Policy

There are no records for privately owned land which sometimes cuts across tribal land and when recommendations are made to buy there are no records of the owners of that private land

National Parks Wildlife Management Wildlife Act Implementation of this policy is



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Area problems because there is mushrooming of settlements by nomadic people in these areas and sometimes Wildlife Management Areas are placed were people live.

Access to information

Digital spatial information is available to the public at a cost of P120 per MB, P15 for

orthophotos and P60 per hardcopy.

DTRP avails all their Acts at the government printers. The activities of the department

are gazetted for public scrutiny. Declaration of all planning areas is gazette. Radio

Programmes such as Lehatshe Boswa airs on radio to inform Batswana about what is

being offered. There are no conditions set for accessing this information and data an

individual can call in or go to the department for information and only Development

plans are sold at an estimate of P350.00.

In terms of development plans in non planning areas, plans are approved by full

council and landboard. In planning areas the approval is done by the minister.

Individuals go to the Town and Country Board for approval.

Public Participation and other stakeholders

DTRP consults people at targeted forums such as Dikgotla and seminars. The

department presents plans in different forums for stakeholder inputs. Plans are posted

in the local media and notice boards for public comments. The boards issues a planning

permission for planning areas but in districts were areas are not planning areas there is

a Building and Control Act which only concentrates at the infrastructure but not

necessarily the environment.



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Access to Justice

Access to justice is provided for in terms of an appeal. An individual can appeal to the

board. A Land Tribunal Court has been set up for grievances and when one is not

happy about the decision made by landboard they can appeal to High Court.

Evaluation of Existing Capacities and Constraints

Department’s constraints in terms of human resources, is that there is limited coverage

hence the department is unable to cover as much as it suppose to because of lack of

human capacity. In terms of Legislation- the Town and Regional Act is being reviewed

because it had loop holes such as duplication of mandates.

6.8. Department of Waste Management and Pollution Control The overall objective of the Department of Waste Management and Pollution Control is

to prevent and control pollution resulting from inappropriate and inadequate waste

management practices.

Information on waste management is accessible to all stakeholders. It can be accessed

by visiting the department and through the internet. The kind of information provided

depends upon the client needs. The department is still working on hazardous waste

inventory. Currently the department has the records for general waste but working on

waste classification.

The country does not have treatment centres as most of the hazardous waste is taken

outside. Recycling of such materials as oils, scrap batteries and chemicals is being

encouraged.



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The department reach out to stakeholders mainly through addressing councils which

who in turn disseminating information to the public through the Environmental Heath

Unit. Also the department holds Kgotla meetings to sensitize the public about waste

management. The department constantly undertakes monitoring of the water quality

using standards set by BOBS as well as the Trade Affluent Agreement. Industries are

required to lower pollutants content before they dispose off their waste, and to submit

their monitoring reports on monthly basis.

The Department of Waste Management and Pollution Control monitors compliance by

industries and give feedback to stakeholders through published reports. This

monitoring exercise is challenged by financial constrains and conflicting policies.

Inadequate human resource also poses a challenge to the department.



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CHAPTER 7. NON – GOVERNMENT GROUPS INVOLVED IN ENVIRONMENTAL DECISION – MAKING

7. 1 Introduction Botswana, like the majority of African countries, started as a colony of one of the

European powers in the 19th century. The country was a protectorate of Britain from

1885 until 1966 when it attained its independence. The transition to full independence

was smooth and peaceful. However there was very little development in terms of

infrastructure like roads, educational and health facilities because the colonial

administration was reluctant to invest in the country. After attaining independence in

1966, the newly independent country faced other development and environmental

challenges of an arid country such as water scarcity, drought, land degradation, along

with the lack of institutional capacity to formulate and implement sound policies and

strategies. This state of affairs provided ideal conditions for the setting up of NGOs in

the country. Since independence in 1966, a number of NGOs set up their offices in

Botswana. The economy of the country has since improved with the discovery of

mineral wealth especially diamonds in the early 1970s. NGOs played an important part

in Botswana’s development endeavors, either as catalysts to Government Policy

formulations, or by keeping the government on the straight and narrow through

constant questioning of some of the government’s actions or as partners in the

implementation of varied development programmes, projects and activities. However,

at the turn of the century, some of the prominent NGOs in the country packed up and

left the country for a variety of reasons. In fact, many of them did so because of

dwindling funds from donors. Others left because they perceived Botswana’s economic

situation to be far much better than that of other countries in the region. As such they

left to offer their services where they were needed most. At the present moment, a

sizable number still remain in the country to continue with their efforts to uplift the

lives of the people. To accomplish this they had to down size their activities and shift

their focus to short term but high impact projects. Some had to change roles and pursue



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new mandates in order to remain relevant. Others are there in name only since they

have become inactive in recent years.

Definition of NGOs

There are broad and ambiguous definitions of what an NGO is, but one thing they all

have in common is that they are not-for–profit-organizations. ‘Although there is

contestation of the definition of an NGO, it is widely accepted that these are

organizations which pursue activities to relieve the suffering, promote interests of the

poor, protect the environment, provide basic social services and undertake community

development (Cleary, 1997). Another simplified definition posits that an NGO is a

legally formed autonomous organization that possesses non-profit making status and

whose primary motivation is to improve the well being of the people. In this way,

NGOs become the voice of the voiceless since they have the capacity and the capability

to provide and disseminate information to the public and at the same time involve the

public better in decision making in all issues affecting them. NGOs are able to do this by

organizing themselves in the form of pressure groups and lobby, protest and even

organize boycotts in order to pressurize the government to listen to them. In this way

they are able to influence decision making processes and they are able to make use of

access to information and justice provisions.

Non-Governmental Organisations in Botswana and some of their activities.

Botswana Council of Non-Government Organizations (BOCONGO)

A consortium of Botswana NGOs, based in Gaborone. BOCONGO has over one

hundred and fifty members in the country ranging in a variety of issues, such as human

rights, health, youth, religious and women. The main mission of the organization is to

provide an enabling environment for the NGO sector to become a recognized partner in

the development process in Botswana and internationally.



158

Botswana Society

The Botswana Society is a non-governmental body founded in 1969, that advances

knowledge of Botswana in all disciplines and on all aspects of the nation’s cultural,

scientific and environmental heritage. The society publishes an annual journal

(Botswana notes and records) and other publications and holds lectures, workshops and

symposia on vital questions of national development. It is based in Gaborone.

Conservation International (CI)

It is an NGO engaged in conservation and rural development activities with particular

emphasis on the Okavango Delta and on the Western Kgalagadi Conservation Corridor.

It is based in Gaborone.

Ditshwanelo (the Botswana Center for Human Rights)

It is an NGO that promotes human rights of all and individuals in Botswana, with

particular emphasis on those who are disadvantaged. It is also based in Gaborone.

Forestry Association of Botswana (FAB)

an NGO involved with establishment of agroforestry programs, research into

indigenous species, and extension work; it is based in Gaborone.

Ghantsi Craft

This is an NGO that is involved with the promotion, purchase, and marketing of crafts

of San and other people; some of the work of Ghantsi Craft focuses on training and on

the development of new products and information dissemination about crafts and

cultural issues; it is based in Ghanzi, Ghanzi District.

Kalahari Conservation Society (KCS)



159

Kalahari Conservation Society is an NGO mainly involved with wildlife conservation

but also deals with integrated resources management and conservation education. It is

based in Gaborone with outpost stations in other parts of the country; it was involved

with community-based natural resource management in the Nata Conservation Area in

Central District.

Khama Rhino Sanctuary Trust

It is a community based wildlife project, established in 1992 to assist in saving the

vanishing rhino population, restore an area formerly teaming with wildlife to its

previous natural state and provide economic benefits to the local Batswana community

through tourism and the sustainable use of natural resources.

Forest Conservation Botswana

It is an NGO whose mandate is to manage the Tropical Forest Conservation Fund

(TFCF) in Botswana. The main aim of the TFCF is to support community

institutions/organizations in the conservation, maintenance and restoration of forest

areas through activities consistent with the Botswana Forest Act and Policy and the

Tropical Forest Conservation Act. Their offices are based in Gaborone

Kuru Family of Organisations (KFO)

A complex of NGOs involved in multifaceted rural developing and conservation efforts

with particular emphasis on San communities in Ghanzi and North West Districts; it is

based in Maun and Shakawe in the North West District, with branches in D’Kar, Ghanzi

District.

Letloa

This is an NGO that carries out community-based development work in Ngamiland. It

is based in Shakawe, North West District.



160

Maiteko Tshwaragano Development Trust (MTDT)

This is a development oriented NGO working on environmental issues, income

generation activities and community capacity building; it is based in Zutswa, Kgalagadi

District.

Permaculture Trust

This is an NGO that promotes sustainable agriculture, housing, and natural resources

management improvement in rural areas; its main office is in Serowe, Central District,

and there is a branch office in Ghanzi.

Somarelang Tikologo

This is also a member based environmental NGO in Gaborone. The aim of the

organization is to promote sustainable environmental protection by educating,

demonstrating and encouraging best practices in environmental planning, resource

conservation and waste management in Botswana. It started its operations in 1994.

Thusano Lefatsheng

Thusano Lefatsheng is an NGO involved primarily with the protection and utilization

of indigenous species of veld plants such as sengaparile, (Devil’s Claw, Grapple Plant,

Harpogophytum procumbens) and Morama (tsin beans, Tylosema esculentum); it is

based at Thusego Farm near Kolobeng in Kweneng District.

Tshole Trust

Tshole Trust is an organization that deals with waste oil recovery in Botswana. It raises

awareness and provides the necessary infrastructure that can enable efficient and

effective disposal, collection and recycling of waste oil. Since the beginning of its

operations in 2001, it experienced significant growth with the joining of almost all

lubricant marketers in the country.

Veld Products Research and Development (VPRD)



161

This is an NGO that carried out research and development work on wild plant

products, agroforestry, and appropriate technology; t is based in Gabane, Kweneng

District.

Working Group of Indigenous Minorities in Southern Africa (WIMSA):

This is an NGO that concentrates on rural development and advocacy for San peoples;

it is regional in scope and has a main office in Windhoek, Namibia and a Botswana

country office in D’Kar, Ghanzi District.

BirdLife Botswana

BirdLife Botswana (BLB) is a membership-based NGO established in 1980. It was

established to fill the void in knowledge and interest about birds in Botswana. It is the

official representative for BirdLife International (a global alliance of NGOs working

together for people, birds, and overall biodiversity conservation) in Botswana. It is the

only organization in Botswana that carries out research and monitoring of birds, the

results of which are made publicly available through BLB’s various publications. BLB

works closely with DWNP and DEA. The main office is in Gaborone with branch offices

in Maun, Kasane, Ghanzi, Jwaneng and Francistown.

7.2 Legislative recognition and enabling of the NGOs in Botswana NGOs in Botswana operate in a country that gained its independence from Britain in

1966 as one of the poorest countries in the world. However, this changed in a short

period of time such that the country was to enjoy having one of the fastest growing

economies in the world. GDP per capita rose from 40 pula at independence in 1966 to

4900 pula in 1990 (Daryl and Sharna Balfour). The country has also performed very well

in terms of socio-political development and management. The total size of the country

is approximately 581 700 square kilometers, more or less the same size as France in



162

Europe or the state of Texas in North America. The country is well endowed with

natural resources including minerals such as diamonds, copper and nickel as well as

wildlife resources. National earnings accrued from these were used by the government

to develop the economy and provide a variety of social and development services to its

people. The country has also gained a unique quality of being the longest surviving

democracy in the whole of Africa and a very stable economy. Despite this impressive

record, civil society has cropped up to augment the government’s efforts in the up-

liftment of the lives of its people. Botswana has a large and growing NGO sector that is

anchored in the development of the nation and guided by the principles of democracy,

social justice, good governance and sustainable development. The majority of NGOs

found in Botswana today are a result of post-independence development and their

formation was based on community needs (NGO Policy Document).

Botswana’s constitution provides for freedom of association, as such citizens are free to

form societies and register them with the Registrar of Societies (Ministry of Labour and

Home Affairs) in order to begin operations. An application to register a society is made

by a minimum of ten people with a common objective. First they have to request for a

confirmation of the name they wish to be registered by submitting 10 names in order of

preference. The name approval takes only one day. When the name has been confirmed

the applicants will submit their names (membership list), addresses, occupation and

national identity numbers as well as a constitution stating the objectives of the

prospective society and how it is going to be run. The application fee for burial

societies, cultural organizations and sporting and recreational clubs is P250.00 while the

other societies pay P500.00. These fees are non-refundable. The whole process takes

fourteen days. It is after this period that the society can begin its operations. The name

they use becomes their legal personality.

In Botswana, bills are usually extensively debated in parliament before they can be

passed into laws and where necessary country wide consultations are made with the

public to determine whether citizens are agreeable to certain laws being implemented



163

or repealed. The government also seeks input from the local NGOs. Since NGOs

represent the public, their input helps citizens participate and influence the decision

making process in the country. NGOs in Botswana have an umbrella body known as

Botswana Council of Non Governmental Organizations (BOCONGO) whose mission is

to facilitate the strengthening of local NGOs for effective participation in the

development process of Botswana. This body was formed in 1995 after it was realized

that the fragmented and uncoordinated nature of the NGOs development efforts were

to their disadvantage. BOCONGO has designed a Code of Conduct for its members

which aims to: enable NGOs to respond to the challenges of sustaining democratic and

participatory institutions and strengthening an enabling environment in which people

can determine collectively or individually their destiny. (BOCONGO Code of conduct).

The council is also responsible for networking, capacity building and the mobilization

of resources for NGO sector.

There is no distinction in terms of government recognition between NGOS representing

the public interest and those representing the private sector. Both are equally

recognized. NGOs do not pay tax to the government of Botswana. One of the innovative

ways that will encourage private sector support to NGOs is tax exemption for funds

donated to NGOs. (National Policy For Non-Governmental Organizations) However, it

is the employees of the NGOs who pay Income tax to the government just like every

other paid up employee in the country.

Source of funding for NGOs in Botswana

The main source of funding for NGOs in Botswana comes from international donor

agencies, volunteers and other supporters. Some of the donors that have supported and

continue to support NGOs in Botswana include the African Development Foundation



164

(ADF), Danish Cooperation for Environment and Development (DANCED), the Global

Environment Facility (GEF), Organization of Netherlands Volunteers (ONV), United

States Agency for International Development (USAID), Japan International Cooperation

Agency (JICA) and the British Council. This dependence on donors has affected their

management because of dwindling donor funding due to Botswana’s re-classification as

an upper-mid income country. This has not been helped by the recent economic

recession which reduced donor funding even further. Lack of funds means that some of

the NGO in Botswana are unable to carry out their mandates fully, for instance, they

may be forced to scale down their activities and even reduce the number of employees

they have. Other forms of assistance rendered to NGOs include skilled personnel,

equipment and training. There are other NGOs in the country which receive part of

their funding from the government of Botswana and augment it with some funding

from donor agencies. A good case in point is the Botswana National Youth Council

(BNYC), which was established through a presidential directive of 1974. The members

are elected from the leaders of affiliate youth organizations and district youth councils.

Even the Botswana Council of Non Governmental Organisations, which is widely

known as BOCONGO for short, is partly funded by the government with the other half

provided by the African Development Foundation. BOCONGO is an umbrella body for

NGOs in the country which was set up to consolidate the voices of different NGOs by

representing their different needs to the government of Botswana, the donor

community and the private sector.

7.3 Organization of NGOs in Botswana

NGOs have a structure designed in such a way that there is a Chairman, Vice

Chairman, Treasurer and additional members. These members constitute the main

committee. This committee calls an Annual General Meeting at which the annual report

and audited financial statements are presented. A new committee is also elected at this

meeting with any member of the organization eligible to run for office.



165

Membership to most NGOs is flexible with most asking for a small joining fee on an

annual basis. However there are some which are non-membership NGOs like

Ditshwanelo (Human Rights Watch Botswana). To run their activities, most of them are

financed by donor agencies in the country and even outside. To meet their running

costs some raise their own funds by carrying out certain activities like selling products,

sponsored walks, gala dinners and such. There are some which receive part of their

financing from the government and part from private sector. Others have to do with

whatever little money they can raise from their own activities. In most cases these end

up depending on voluntary staff to run their activities and programmes.

Relationship with the government

The relationship between most NGOs and the government is cordial. The government

consults and involves NGOs in decision making on environmental issues. It involves

them through various fora. For instance, in 1983 consultations were initiated for the

formulation of a National Conservation Strategy which was ultimately approved by

parliament in 1990. To make the policy a reality, the National Environmental Education

Strategy and Action Plan (NEESAP) was developed in 1997. The NEESAP then led to

the establishment of the National Environmental Education Committee (NEEC) which

provides a platform for networking, partnership and cooperation between government

departments and NGOs to coordinate environmental education planning activities. It is

through other platforms like NEEC that NGOs are enabled to participate in

environmental decision making in the country.

NGOs in Botswana serve to supplement the government’s efforts in providing and

enhancing sustainable development, social services and programmes to its people. They

work with people at grassroots level, the poor and the marginalized. They help citizens

participate and influence the decision making process as well as the management of

public affairs (M. Lekorwe). A large number of NGOs in Botswana are based in



166

Gaborone, the capital city and its surroundings, largely because of availability of

services offered by the city. Others are distributed throughout the country owing to the

nature of their interests. For instance, NGOs dealing with the conservation and

utilization of veld products are usually found in areas where such products occur.

Others, like Trade unions, are able to establish several branches across the country

because their financial resources allow them since they are funded through membership

fees.

NGO Code of conduct

During the first quarter of 2000, the Botswana Council of Non-Governmental

Organisations and its members recognized the need to develop a self-regulating

mechanism to guide and monitor the behavior of NGOs in Botswana. This came about

after it was realized that a lot of NGOs in the country faced a number of difficulties,

chief amongst them being, lack of funds, mismanagement of income, problems

retaining qualified staff and collapse of some of the NGOs. Consultations between

NGOs, government, private sector, donors and local communities led to the

development of a code of conduct for NGOs in the country. This code governs the

behavior of NGOs and sets standards for their actions.

The code of conduct addressed issues to do with: establishing an enabling environment,

transparency, governance, accountability, fundraising and resource mobilization,

financial management, communication, partnership, representation at national, regional

and international forums, and programme development and management. It was

finally launched in 2001 and immediately after, NGOs members were expected to start

mainstreaming the code of conduct into all aspects of that work. The development of

the code of conduct has ensured that there is sound, equal and defined partnerships

between NGOs, government, private sector, donors and local communities.



167

Summary evaluation of Non-Governmental Groups’ participation and participation constraints Area / issue requiring attention

Relevant capacity constraint for problem area

Possible capacity Development activity

Lack of funds/ dwindling donor funding

Short term projects Resource mobilization for both local and external funding sources. Engage in fund raising activities

High staff turnover Lack of funds Offer better packages to hire and retain more qualified staff

Duplication of roles and activities

Lack of enforcement of the code of conduct for NGOs in Bo0tswana

Strengthen the management and improve coordination of NGOs in Botswana



168

CHAPTER 8. EVALUATION OF EXISTING CAPACITIES AND CAPACITY

CONSTRAITS TO IMPLEMENT PRINCIPLE 10 OF THE RIO DECLARATION

8.1 INTRODUCTION At the national priority setting workshop representatives of government and various interested groups met to systematically discuss key issues and determine national priorities to strengthen participatory environmental governance and principle 10 implementation in the country. An assessment of all the three components of Principle 10 was carried out to identify existing capacities and capacity constraints to implement Principle 10 of the Rio Declaration. The outcome of the exercise is captured below. 8.2 Summary Evaluation of Existing Capacities Related to Access to information

Priority Issues Scale of Problem

Level of Concern

Ability to Adequately Address Issue

Capacity constraint

Priority ranking

Access to information 1. Lack of legislation which binds environmental information holders to avail it to the public 2.Communication barrier in dissemination of and access to environmental information (language and technical) 3.Inappropriate information dissemination methods to the majority

National National National

High High Medium

High Medium Low

Lack of Awareness and expertise Lack of Finances and technological resources Lack of finance and personnel resources

1 2 2



169

8.3 Summary Evaluation of Existing Capacities Related to Public Participation


Level of Concern


Capacity constraint

Priority ranking

1.Inadequate capacity building initiatives 2.No relevant legislation to enhance public participation in environmental decision-making process 3.Limited opportunities to enhance effective public participation in environmental decision-making(e.g. limiting forums, weak feedback mechanisms)


Very high High High

Low High Low

Skills, cost, time Lack of awareness, Lack of financial resources Lack of financial resources, time

1 1 1



170

8.4 Summary Evaluation of Existing Capacities Related to Access to Justices


Level of Concern


Capacity constraint

Priority ranking

Environmental justice 1. Lack of skilled personnel in environmental law 2.Fragmented and conflicting environmental laws 3.No specific provision in the constitution for right to a clean and safe environment


High High High

Medium Low High

Environmental Law programmes not provided in academic institutions locally, Post Graduate Environmental law programme not provided locally Lack of integrated planning in promulgation of the law Lack of awareness, lack of finance

3 2 1



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CHAPTER 9 OPPORTUNITIES FOR TAKING ACTION AND TARGETED CAPACITY BUILDING 9.1 ACTION PLAN

GOAL

SPECIFIC OBJECTIVE

ACTIVITIES

LEAD IMPLEMENTOR

LEAD STAKEHOLDER(S)

TIMEFRAME

1. To establish effective public participation in environmental decision making processes

1.1To establish collaborative strategies for enhancing capacity building for public participation

1.1.1 Conduct workshops 1.1.2 Training the public 1.1.3 Identify the areas of collaborations with stakeholders for easy allocation of responsibility.

MEWT

MYSC

2011-2013

1.2 To empower the public to enable them to participate meaningfully in environmental decision making

1.2.1 Educate the public 1.2.2 Cluster Campaigns 1.2.3 Employ current IT technology e.g. Use of sms 1.2.4 Conduct workshops

MEWT

MSYC

2011-2013



172

1.3 To formulate strategies to implement legislation with the aim to enhance public participation in environmental decision making

1.3.1 Formulation of strategies 1.3.2 Review of existing strategies 1.3.3 Implementation of strategies

MEWT

MDJS

2011-2013

1.4 To provide alternative forums to enhance public participation in environmental decision making

1.4.1 Identify and evaluate existing forums

MEWT

MoESD

2011-2013

1.5 To develop mechanisms that oblige the consultants(e.g. EIA) to provide feedback to the public

1.5.1 Draft guidelines that would oblige consultants to provide feedbacks.

MEWT AGCs

2011-2013

1.6 To establish partnerships

1.6.1Identify media stakeholders 1. 1.6.2 Train media

MWET MCST 2011-2013



173

with the media in disseminating environmental information

stakeholders through workshops and seminars.

2.Ensure Environmental Information is availed to the public

2.1 Formulate legislation which binds information holders to avail it to the public

2.1.1 Stakeholders audit and need assessments 2.1.2 Public consultations at all stages 2.1.3 Formulation and communication of act.

MEWT,

MMWER, AGCS,MOA,NGOS

APRIL 2011-MARCH 2013

3. Improve the communication of environmental information

3.1 To disseminate information in a three formats that are simple and understandable. 3.2 To disseminate information in 3 formats that are accessible.

3.1.1 To translate environmental information into the national language. 3.2.1 To simplify the information 3.2.2 to conduct a needs assessment structure on the most appropriate formats

DEA

4.Increase skilled personnel in environmental law

4.1 Avail environmental training (quality, quantity)

4.1.1 Training in- service officers in environmental law 4.1.2 Collaborate with UB and MoESD to avail modules on environmental law 4.1.3 Create a funding window for environmental law

AGCs,

MoESD,DEA,Development Partners

2012



174

5. To have none fragmented and conflicting environmental laws

5.1 To harmonize all environmental laws

5.1.1 Review all environmental laws and identify conflicting laws

MWET AGCs 2012

6. Have a provision in the constitution for right to a clean and safe environment

6.1 To advocate for amendment of the constitution to include the right to a clean and safe environment

6.1.1 Initiate processes for submission to the law reforms Committee 6.1.2 Consult cabinet

AGCs Office of the president, DEA

DEC 2013



175

REFERENCES

1. Botswana National Settlement Policy, Draft Government Paper of June 1991 Government Printers, Gaborone

2. Elder P.S; environment protection through the common law 12 West Ontario Law Review 107 (1973)

3. Fombad CM and Quansah; The Botswana Legal System, Lexis Nasis, Duban (2006)

4. Glazewski Jan; Environmental Law in South Africa (2005)

5. Harding Andrew; Access to Environmental Justice: A Comparative Study (2007)

6. Hinz O. Manfred and Oliver C. Ruppel; Biodiversity and The Ancestors: Challenges to Customary And Environmental Law (2008)

7. Khan M.R and H.J. Gijzen; Environmental Pollution and its Management in Eastern Africa (1989)

8. Kidd Michael; Environmental Law (2008)

9. Lebotse Kabelo Kenneth; Partnership for the Development of Environment Law and institutions in Africa: Training Manual on Environmental Laws of Botswana (2005)

10. Maripe B and Lebotse K; The State of Environmental Law of Botswana (2009) Italian Environmental Law Review

11. Maripe B., Enhancing Public Participation, access to information and access to justice in Environmental Management Issues: Paper presented at the train the trainers course for the Judiciary Senior Lecture in Law, University Of Botswana

12. Maripe B., Land Administration, Politics and Governance in



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Botswana, in CM Fombad (ed) Essays on the Law of Botswana, Juta and Company Ltd, Capetown (2007)

13. Maripe B., ‘Locus standi and access to judicial review: Statutory interpretation and judicial practice in Botswana, 1999 (62) THRHR 390

14. Molokomme A; The reception and development of Roman Dutch Law in Botswana Lesotho law journal (1985) Vol 1

15. Ngongola C H S, land problems in some Peri - Urban villages of Botswana and problems of conception description and transformation of tribal land tenure, J A L Vol 36, No.2 (1992)

16. Nsereko D.D.N; Controlling Executive power in Southern Africa: the role of the courts and administrative tribunals in Corder and Maluwa; Administrative Justice in Southern Africa UCT (1997) pp 95-116. (on reserve)

17. Nsereko DDN; The Constitutional Law of Botswana Pula Press Gaborone (2002)

18. Otlhogile B, Constitutional Development in Botswana in Edge W and Lekorwe M (eds) Botswana: Politics and Society (1998)

19. Penal Reform International and Bluhm Legal Clinic of the Northwestern University School of Law; Access to Justice in Africa and beyond making the Rule of Law a reality (2007).

20. Sanders A JGM; Legal Division in Lesotho, Botswana and Swaziland, (1985) Vol 1, Lesotho Law Journal

21. UNEP/UNDP/Dutch Government Joint Project on Environmental Law and institutions in Africa; Compendium of Judicial Decisions in matters related to environment: National Decisions (1998)



a

APPENDIX 1



b

Table A : Evaluation of Public Participation within Districts

District * Publicinvolved Crosstabulation

Publicinvolved

Total Yes No Don't know

District Kweneng Count 3 1 0 4

% within District 75.0% 25.0% .0% 100.0%

Kgalagadi Count 20 1 0 21

% within District 95.2% 4.8% .0% 100.0%

Ngamiland Count 21 8 1 30

% within District 70.0% 26.7% 3.3% 100.0%

Mahalapye Count 13 5 0 18

% within District 72.2% 27.8% .0% 100.0%

Bobirwa Count 23 0 0 23

% within District 100.0% .0% .0% 100.0%

South East Count 4 0 0 4

% within District 100.0% .0% .0% 100.0%

Gaborone Count 16 6 2 24

% within District 66.7% 25.0% 8.3% 100.0%

Chobe Count 20 7 1 28

% within District 71.4% 25.0% 3.6% 100.0%

North East Count 22 17 2 41

% within District 53.7% 41.5% 4.9% 100.0%

Francistown Count 3 1 2 6

% within District 50.0% 16.7% 33.3% 100.0%

Total Count 145 46 8 199

% within District 72.9% 23.1% 4.0% 100.0%



c

APPENDIX 2 CASE STUDY



d

Case Study 1

Public Participation in Environmental Decision Making – A Case of Ghanzi District in Botswana

1. Introduction

This case study is conducted in pursuit of developing a National Profile to assess

National Capacities in Botswana for implementation of Principle 10 of the Rio

Declaration. Two Environmental Impact Assessment (EIA) reports for studies

conducted in the Ghanzi District are used to evaluate whether public participation,

access to information and environmental justice were granted throughout project

execution.

Environmental impact assessment (EIA) is a policy instrument based in law and used

to prevent harmful environmental impacts, to promote sustainable development,

increase public information access, and improve public participation opportunities in

development. EIA is an open process for discussion and participation of different

actors: it increases the transparency and broadens the information base of

environmental policy planning and decision making (Tampere University Press,

2008). One of the aims of EIA is to incorporate citizens’ views and opinions, concerns

and desires into planning at an early stage. EIA is a process of identifying and

evaluating potential impacts from proposed activities. It is also an interactive and

communicative policy instrument that facilitates direct participation.

In this study EIA is approached as a public participation instrument. Public

participation is the perspective from which the EIA-process is analyzed. The aim of

the study is to examine public participation in the EIA process as an opportunity for

the public to participate and influence environmental decision making development



e

planning process. There were two main research tasks in the study. The first task was

to review available documents to establish the extent to which the public was

involved in decision making during the EIA. The second task was to assess the level of

participation and accessibility of environmental information to the public to make

informed decisions.

2. Background and Contextual Information

The EIA study by Liebenberg and Stander Consulting Engineers for the Ghanzi

landfill and the Ghanzi – New Xade access road by ECOTORI are used in the study.

The landfill study was conducted in 2001 before the EIA act. The decision to

undertake the construction work was interrupted by the enactment of the EIA Act in

2005. The EIA study for the access road project was done in 2009 after the enactment

of the EIA act (2005).

The proponent of the landfill was the Ghanzi District Council. The decision to

construct the landfill in the township was a result of indiscriminate dumping of

different types of waste coupled with absence or inadequate supply of waste handling

and storage facilities. The access road project by department of roads was constructed

as part of the national development plan to provide infrastructural services to the

nation. Both projects were subjected to EIA. The purpose of using the two studies is to

ascertain trend in public participation and accessibility of environmental information.

3. Methodology

The study methodology consisted of a literature review, evaluation of the two EIA

studies, and interviews with members of the community who participated in the process.

A number of experts with extensive experience in stakeholder processes were facilitators

or represented government, industry, or environmental groups. Evaluation by hearing

participants and their level of satisfaction were interpreted to derive the effectiveness of



f

their participation. The accessibility of information was interrogated by interviews and

review of the documents.

Figure 1: The EIA project cycle Impact significance Impact significance

Considerations of alternatives

Action design

Determining whether an EIA is necessary (

Deciding on the coverage of the EIA (scoping)

Preparation of the EIA report

Description of action and environment

Impact prediction

Impact significance

Reviewing the EIA

Decision making

Monitoring action impacts

Migration

Consultation & Participation



g

Source: Wood (2003:7)

4. Overview of decision process

The decision follows the normal EIA assessment procedure below.

In Botswana EIA design is somewhat simplified as shown in Figure 1 Initially the

developer completes a preliminary environmental assessment form and submits it to

Department of Environmental Affairs. After identifying the need for EIA report,

developer hires a consultant/firm to conduct the EIA study. The consultant drafts the

scope of work and put an advert for public consultation. After informing public,

consultant is obliged to organize public meeting where all interested parties can

participate and submit their comments. This is done in accordance with the

requirements of Section 7 of the EIA Act.

According to the Botswana legislation, organizing a public hearing is the responsibility of

a developer. Twenty one (21) days prior to holding a public meeting. The consultant is

obliged to publish a notification about planned development in the local periodic press.

The notification should include following:

• The name, aims and place of the development

• The address, where public representatives can send remarks and comments

• Time and venue of the meeting; and

• The effects and benefits of the activity

During public meetings the developer is obliged to receive and document public

comments and correspondingly incorporate in the final EIA report. Public meeting has to

be held in the public place of a region, where the planned activity is to take place.

Administrative Proceeding



h

Subsequent to holding a public meeting and carrying out the preliminary assessment the

consultant submits to the Department of Environmental Affairs the EIA Scoping report,

which contains public meeting notes and the issues that have been identifies during

consulatations. . The competent authority can now take decision on whether a detailed

study is warranted. Administrative proceeding last for twenty eight (28) working days

and includes assessment of the report and consulting other competent authority. The

competent authority takes all relevant information (including the EIS and the

consultation findings) into account in reaching a decision on the proposed project. EIA

institutional setting and EIA process put more responsibilities on developers in order to

lighten administrative burden on the competent authority, however this does not

guarantee adequate level of participation.

5. Opportunities for and patterns of public participation

In line with the Environmental Impact Assessment Act No. 6 of 2005, the project

proponent has the responsibility to inform local people about proposed project, the

proponent is obliged to provide a forum which enables people to have information about

the project and make inputs in all stages of the decision making process. The forums

proposed for this are public displays and public meetings (UNEP EIA Training Resource

Manual).

The landfill study (before the promulgation of the EIA Act) did not provide opportunity

for the general public to make inputs. The discussions were mainly between government

departments (Department of Water Affairs, Environmental Affairs) and Ghanzi District

Council. There were communications between the Department of Environmental Affairs

and Ghanzi District Council (savingrams dating as far back as 2003) with the latter

expressing environmental concerns while the council was more concerned with the

economics of the project. The EIA study concentrated on technical aspects and ignored

the community within which the project operates. There is no evidence of public

involvement throughout project execution save for the village authorities (village chief



i

and VDC chairperson). The document was also written in a more technical language

which is difficult for lay members to comprehend. Information on the landfill was only

accessed by the steering committee. There were no public displays to make the public

aware of the landfill and the surrounding environment.

On the other hand the project proponent for the Ghanzi – New Xade access road (2009)

provided opportunity for the communities at the scoping stage to make input. The

consultant was engaged to manage the public involvement process but the public

involvement plan was not developed. Several instruments were used to announce the

meetings and opportunities. These included newspaper adverts, public address systems,

questionnaire, focus group discussions and interviews. Individuals who could not

participate in meetings were afforded chance to write to the consultant to make

contributions.

The Ghanzi - New Xade access road study articulates the objectives of the public

participation well in their presentation (scoping report, appendix 2). This is evident in

that the three proposals of where the road could be constructed, the possible impacts, the

schedule and how the proposed project will be built and its purpose. The project

presentation described clearly the purpose of the project, its location, and activities at the

pre-construction, construction and operational stages. Public notices and announcements

were made in all concerned communities prior to the public meetings. The official

languages, that is English and Setswana, were used to announce the meeting. However

the communities in the project area are predominantly San people and the languages

used was cited as a challenge in some instances. The literacy level also proved to be a

challenge as the EIA process is fairly new.

The affected and interested parties made submissions during the public meeting at the

local kgotla. In these meetings people voiced their opinions, and raised concerns,

complaints and questions related to project. However inputs were not directed because



j

the public have not learned about the project prior to the meeting. This is largely

attributed to lack of public displays and trainings prior to public hearings. The

communities were not provided with necessary environmental information to aid their

involvement. Translators were used during public meeting as some people could not

comprehend the language used.

Surveys were also considered as one way communication. People only responded to the

questions raised by interviewers as they were not trained and provided with information.

In other words, the method did not address the real issues. In the evaluation process, the

formal meeting was not good for local people. They could not comfortably air their

concerns. They cannot actualize their concerns and aspirations. This made it hard to

incorporate the people’s input into the final decision.

6. Evaluation of procedural aspects of the decision –making process

The final decision on the landfill project took into consideration the design advice of the

department of Water Affairs. This resulted in change of the design to mitigate anticipated

groundwater pollution impacts. Department of Environmental Affairs efforts to get EIA

done for the project were unsuccessful. The department could not challenge the council’s

decision as there are no regulations hence no guidelines. There was no public influence as

the general public was not engaged.

Ghanzi – New Xade access road final decision did not consider public input even though

it was consulted. There was no feedback to the communities on the final decision despite

the fact that the study report had already been approved. Since the project was not yet

implemented (at the time of the study) general public is still not aware of the final

decision.

7. Evaluation of determinants affecting public participation



k

The communities consulted on the Ghanzi – New Xade access road proposal were all

supportive of the road development. This development was seen as a good start that will

trigger economic developments in the area. Differing views were raised concerning

which of the proposed three alignments to follow. Communities supported the route

options that were closest to their settlements the reasoning being that they would benefit

(transport services).

Detailed information such as maps and alternative road alignments was not availed to

the public before public hearings. This means communities could not adequately use the

information to support their opinions and choices. Despite this, participants

demonstrated a good understanding of anticipated project impacts. Most of them raised

their concerns and cited experiences from past projects. Communities used their

experiences to advise the consultants on how to execute the project.

8. Evaluation of the decision outcome Although public participation is required by law, project proponents usually use their

discretion about the extent of public involvement. Involvement varies widely, from

holding public information-gathering meetings to forming advisory groups to actively

including citizens in making and implementing decisions. The two studies show these

two variations.

The EIA study of the landfill was not carried out in accordance with the standard EIA

procedure which advocate for public involvement in decision making. The study

involved government authorities in the form of Departments of Environmental Affairs

and Water Affairs. Terms of reference (Tender No. GDC/25/2000, Appendix D, page 7)

of the project recommended a detailed environmental impact assessment which includes

involvement of the general public. Exclusion of the general public might be attributed to

the fact that there was no legislation at the time. However there were already some

international guidelines like UNEP EIA Training Resource Manual which outline how



l

environmental impact assessment study should be conducted. These guidelines

emphasize the importance of public involvement in environmental decision making.

Furthermore the project was executed after the enactment of the EIA act. Efforts were

made by the Department of Environmental Affairs to get the proponent to undertake an

EIA in accordance with the act without success. The final decision to undertake the

project was biased towards the hydrological findings and economic interests of the

project (Savingram Ref P/8/IX, lines 2 and 4 and others).

It is evident that the Ghanzi – New Xade access road construction is a welcome

development in the area. Public involvement was carried out as per the EIA Act in the

Ghanzi – New Xade access road study. However, the impact of public participation and

lay people’s expertise was not so essential, while the economic interests of the project and

the role of experts were in central role. There did not seem to be the same importance to

define and incorporate public opinions in the final decision. The contribution of public

was not used in the final decision in a more effective manner. In-fact there is no evidence

at all that it was incorporated during the final decision making. There was no statement

of reasoning or feedback to the communities on the final decision made. The EIA

assumed a more traditional role as an information distribution tool, and as a place for

open discussion and not effective participation. The EIA was used as a means to an end

and not as an end in itself. It is only used because it is a prerequisite for any development

project. Therefore proponents undertake it just to meet requirements and get the green

light to go ahead with projects.

Studies sponsored by U.S. Environmental Protection Agency el at have revealed that

public participation tends to increase the legitimacy of the proponents decisions, which in

turn raises the likelihood that they can be implemented effectively and efficiently. The

process itself builds public knowledge of the scientific aspects of environmental issues,

which increases their ability to engage in future decisions.



m

9. Summary of lessons learned

On the basis of the case study carried out, it is possible to conclude that participation of

other stakeholders in the landfill project (government departments) resulted in a project

which is less harmful in environmental terms. With the knowledge of the environment

and their input, EIA resulted in adoption of a design which is much safer to the

groundwater system. However the general public input was not realized. Changes came

about through dialogue among the authorities. On the other hand the roads project

realized the input of various stakeholders during the public consultation stages. The final

decision however does not reflect the stakeholder inputs.

The study suggests that the legislative base alone cannot guarantee the effectiveness of

public participation. Most important factor is the attitude of main actors. Each EIA

process is unique and general theories of participation in EIA are difficult to create. In

practice, the EIA is more or less an institutional process of power division between

different actors, and the developer has the central role. It is also possible, that policy

instruments like EIA create new elite active expectations concerning participation. At the

same time it is important to estimate the criteria and one can see, that EIA has lot of

deliberative potential, but the main challenges are in the relationship between EIA and

decision making, and in the structures of political power and decision making outside of

EIA.

The study recommends full involvement of the public. Use of advisory groups to

represent the general public with considerations for individual cases is recommended

where there is consensus.



n

References

Construction of Ghanzi Township Landfill Civil, Mechanical and Electrical Engineering

Works. Environmental Impact Assessment. Bergstan Africa, Consulting and

Development Engineers, Gaborone, Botswana.

Development of a landfill in the Ghanzi Township, Tender No. GDC/25/2000. Draft Site

investigation report, November 2001. Liebenberg and Stander (Botswana) Pty Ltd.

Consulting Engineers and Project Managers.

Development of a landfill in the Ghanzi Township, Tender No. GDC/25/2000. Draft

Solid Waste and Feasibility Study Report, November 2001. Liebenberg and Stander

(Botswana) Pty Ltd. Consulting Engineers and Project Managers

Final Scoping, Environmental Impact Assessment for the Design and Construction of the

Ghanzi – New Xade Access Road, 27 August 2009. Ministry of Local Government,

Department of Local Government Technical Services. Ecotori Planners, P.o.Box 21554,

Gaborone.

Final Environmental Impact Assessment Report. Design and Construction of the Ghanzi –

New Xade Access Road, 20 February 2009. Ministry of Local Government, Department of

Local Government Technical Services. Ecotori Planners, P.o.Box 21554, Gaborone.

Public participation in environmental in impact assessment, Tampere University Press,

2008. http://acta.uta.fi

Savingram Ref P8/8/IX, RE: Construction of Ghanzi Township Landfill, 4th May 2007

Sudharto P Hadi, Public participation in Indonesian EIA, UNEP EIA Training Resource

Manual



o

Case Study 2

Public Participation in Environmental Decision-Making- Community Based Natural Resource Management (CBNRM) Policy of Botswana

Section 1: Background

The implementation of Community Based Natural Resource Management (CBNRM)

programme in Botswana effectively started in 1989 when the Government of Botswana

and United States Agency for International Development (USAID) embarked on a joint

Natural Resource Management Project (NRMP). The programme was premised on the

realization and acknowledgement that wildlife conservation in the country was

practically impossible without the involvement of rural communities that reside within or

adjacent to the conservation designated areas such as Wildlife Management Areas

(WMAs) and Controlled Hunting Areas (CHAs). The approach was based on the idea

that communities residing adjacent to game reserves would derive benefits from wildlife

in order to motivate them to look after the resource and reduce human-animal conflict.

Over the years the CBNRM programme has evolved to include the sustainable use and

management of other natural resources, such as forestry resources and veld products

(National CBNRM Forum report, 2006).

CBNRM is both a conservation and rural development strategy, involving community

mobilization and organization, institutional development, comprehensive training,

enterprise development and monitoring of the natural resource base (Arntzen et al, 2003).

The Revised National Policy for Rural Development (2002) seeks to promote the use of

natural resources to generate income and improve the livelihoods of rural communities.

It recommends that CBNRM should be encouraged to manage common resources to

avoid their over-exploitation. The National Strategy for Poverty Reduction of 2003 also

identified CBNRM as one of the six (6) ‘sustaining livelihoods’ programmes in Botswana.

The National Vision 2016 in its environment section states that “communities will be



p

involved in the use and preservation of their environmental assets, and it will benefit

directly from their exploitation” (Vision 2016: 7)

CBNRM approach was born primarily out of the realization that local communities living

with the wildlife and forest resources form a fundamental base to be the custodians of the

environment and its resources, and they are better placed to play a central role in their

conservation and utilization in order to derive a sustainable livelihood out of them. It also

contributes to good governance as communities are charged with responsibility and

custodianship to lead the conservation activities in areas in which the natural resources

occur (Government of Botswana, 2010a). The custodian communities undertaking

conservation activities in the specified areas will be entitled to deriving livelihoods

benefits from the resources through sustainable harvesting and /or eco tourism activities

in order to improve their living standards (Blaikie, 2006).

CBNRM is seen to have improved attitudes of local communities towards wildlife and

other natural resources. Prior to the implementation of the CBNRM programme, most

communal vegetation resources had fallen prey to the so-called open access, where the

use of the resources was not controlled. Lower incidences of poaching have also been

reported by the Community Based Organisations (CBOs). Moreover the CBNRM review

of 2003 revealed that the subsistence value of natural resources in CBNRM project areas

was estimated twelve million four hundred and thirty two thousands pula (P12.432.000)

indicating that CBNRM is very important in the diversification of rural

economy(National CBNRM Forum, 2005).

Despite several achievements of the CBNRM there have been problems that

overshadowed the success of this programme. The problems included mismanagement of

finances, lack of accountability, poor enterprise development skills by the community

trusts, dynamics of power relationships and personal interests in the communities that

jeopardized the welfare of the wider community (Government of Botswana, 2007). As a



q

result, a policy was needed to safeguard the interest of communities in natural resources

management and to attract investment in natural resources based enterprises.

The CBNRM Policy was promulgated in 2007. The overall objective of the Policy was to

create a foundation for conservation-based development, in which the need to protect

biodiversity and ecosystems is balanced with the need to improve rural livelihoods and

reduce poverty. The Policy was intended to guide and facilitate the strengthening of,

support to, existing and future CBNRM activities. It pursues community-private sector

partnerships in which communities assume responsibility for business cooperation and

adequately manage partnerships for the benefit of all community members (Government

of Botswana, 2007).

The objectives of the CBNRM Policy are to:

I. Specify land tenure and natural resources user rights, which may be devolved to

communities

II. Establish a framework that provides incentives for communities to manage natural

resources in a sustainable manner

III. Create opportunities for community participation in natural resources

management

IV. Promote conservation and CBNRM strategies that are based on sound scientific

principles and practices

V. Enhance the relationship between protected areas’ management and CBNRM

VI. Protect the intellectual property rights of communities with regard to natural

resources and the management of such natural resources

VII. Encourage communities to participate meaningfully in the monitoring of CBNRM

VIII. Facilitate capacity building within communities to engage in natural resources-

based tourism

IX. Establish an institutional support framework for the implementation of CBNRM

X. Promote communication, education and public awareness on CBNRM



r

The Ministry of Environment Wildlife and Tourism through the Departments of Wildlife

and National ParkS, Forestry and Range Resources and the parastatal Botswana Tourism

Board (now Botswana Tourism Organisation) have been charged with the responsibility

for coordinating and overseeing the implementation of CBNRM policy (Government of

Botswana, 2010b). However, CBNRM projects are largely cross-sectional in nature and

success will require specific inputs and attention from key stakeholders (communities,

NGOs, Private Sector and Donors). At district level, a district Technical Advisory

Committee (TAC) is charged with the responsibility of overseeing the implementation of

CBNRM. It includes Department of Wildlife and National Parks, Department of

Environmental Affairs, Department of Tourism, Department of Forestry and Range

Resources, Land authority, Council, Tribal and District Administration and any other

relevant departments (Government of Botswana, 2010a).

National Policies and Legislation in Recognition of CBNRM

There is a good body of policy and legislation in Botswana that supports development

based on natural resource use. Since CBNRM is premised on two areas being natural

resource conservation and rural development, several policies that have a bearing on

CBNRM have been established. These policies promote CBNRM, not only in wildlife, but

in other sectors such as forestry and tourism (Government of Botswana, 2010a).

Table 1.1: Policies in support of CBNRM (After Government of Botswana, 2010a:15-16)

Policy Purpose Remarks

Tribal Grazing Land

Policy(Government of

Botswana, 1975)

Zoned land use with the objectives of

stopping overgrazing and

degradation of the rangelands and

promoting greater equality of

incomes in rural Botswana. Areas

that were marginal for grazing and

agriculture were referred as

“Reserved Areas” which eventually

To rationalize the previous land use

administration system with the

WMA. in 1989, the government

embarked on a rezoning exercise of

all Controlled Hunting Areas (CHA).

The exercise led to some areas being

zoned for Community use.



s

became Wildlife Management Areas

(WMA) after the adoption of the

Wildlife Conservation Policy of 1986

Wildlife Conservation

Policy (Government of

Botswana, 1986)

Aimed at encouraging long-term

commercial wildlife industries based

on sustained utilization of wildlife

resources, in order to create economic

opportunities, jobs and incomes for

rural population

The policy also initiated WMAs

where residents would eventually be

able to manage existing natural

resources occurring for their benefits

and Botswana’s benefit

National Policy on

natural resources

Conservation and

Development

(Government of

Botswana, 1990)

Commits the government of

Botswana to the achievement of

sustainable development and

conservation of natural resources.

The policy promotes greater

involvement of the people in natural

resources management as well as

incentives for conservation

This policy is of utmost relevance to

CBNRM as it relates to community

activities such as ecotourism, veldt

products harvesting and fishing all of

which involve the use of natural

resources and at the very least have

an impact on the environment and

natural resources

Tourism Policy

(Government of

Botswana, 1990)

Provides local communities with

direct and indirect benefits from

tourism activities so that they will

recognize and appreciate the value of

wildlife and wilderness areas.

Although the policy does not

specifically mention Community-

Based Tourism, the policy does state

an intention to increase the

participation of citizens in the

tourism industry

The policy recognizes wildlife and

wilderness experience as major

tourists attractions in Botswana and

hence an opportunity for CBNRM.

The communities can appreciate the

value of these resources through

participation in wildlife based

industries, including tourism

Table 1.2: Laws affecting Natural Resource Utilization and CBNRM (After MEWT,

2010:16-19) Acts/legislation Purpose Remarks

State Land Act (Government of It defines any land that is not A community on a State land



t

Botswana, 1966) tribal or freehold as belonging to

the government of Botswana. It is

the president, or someone whom

he had authorized, who controls

rights of use or access

wishing to have resource use

rights in a state land would have

to work directly with the

Department of Lands (to get the

Community Natural Resource

Management Lease.

Tribal Land Act(Government of

Botswana, 1968)

Makes provision for the Tribal

Land Board to take care of

allocation and administration of

tribal land. The Act introduced

common law leases, which

allows land to be available to

individuals or groups for certain

commercial purposes including

cattle ranching, wildlife

utilization and tourism

The Land Boards are important

to CBNRM programme as they

are responsible for the granting

of sole and exclusive rights to use

natural resources through the 15

year Community Natural

Resources Management lease to

Communities Based

Organizations.

Agricultural Resources

Conservation Act (Government

of Botswana, 1972)

The Act instructs the occupier of

any land (outside Protected

Areas) to change how they

conduct their activities if this will

lead to better conservation of the

resources

Communities intending to

commercially utilize plant

species have to deal with

Department of Forestry and

Range Resources and their

activities would be governed by

this Act.

Forest Act (Government of

Botswana, 1975)

Provides for the regulation and

protection of forest and forest

produce (timber, firewood, grass,

reeds, fruits and honey, etc) in

Botswana

CBNRM practitioners take this

Act into consideration because it

contains schedules of trees that

are declared protected from time

to time, whether in the Forest Act

or not. This Act is of relevance to

communities utilizing resources

in Forest Reserves and State

Land as their activities are

regulated by this Act.

Fish Protection Act (Government Provides for effective regulation, This Act is relevant to CBNRM



u

of Botswana, 1975) control, protection and

improvement of fish and fishing

in Botswana

initiatives, particularly those

with activities likely to include

sport fishing and/or commercial

fishing with the use of different

levels and types of fishing

equipment and technologies

Wildlife Conservation and

National Parks Act (Government

of Botswana, 1992)

Makes provision for the

conservation and management of

wildlife of Botswana, giving

effect to CITES and any other

international conventions for the

protection of fauna and flora to

which Botswana is a party to

The community CHA, the

majority of which are in WMA,

help decentralize wildlife

management to the local

communities.

Tourism Act (Government of

Botswana, 1992)

Makes provision for the

regulation of the tourism

industry with regard to

promoting its development and

well being

Where CBNRM activities involve

eco-tourism activities, it is

worthwhile for CBNRM

practitioners to take cognizance

of the fact that any such

operation be carried out within

the requirements of the Tourism

Act

Monuments and Relics Act

(Government of Botswana, 2001)

It preserves and protects from

interference any national

monuments, relics, artifacts and

other objects of aesthetic,

archeological and historical or

scientific interest that are part of

Botswana’s cultural, social and

political heritage.

Through CBNRM, government

recognizes communities as the

best custodians of natural

resources as well as of historical

and archaeological sites, and

hence encourages communities

to form CBOs and continue with

these responsibilities.

Section 2: Overview of the CBNRM Policy Decision Process

The move from the preservationist approaches to decentralized in southern Africa in the

late 20th and 21st centuries saw the adoption of Community Based Natural Resource



v

Management (CBNRM) programme as an effective development and conservation

strategy (Hutton et al, 2005). In an attempt to find new solutions for the failure of top-

down approaches to conservation, CBNRM rests on the recognition that local

communities must have direct control over the utilization and benefits of natural

resources in order to value them in a sustainable manner. CBNRM in Botswana was

adopted in the early 1990s as a development approach which had the potential to bring

about improved livelihoods through income and employment generation activities.

However, the adoption was done without the guidance of a formal policy. As a result

dynamics of power relationships and personal interest and misappropriation of funds by

some communities jeopardized the intention of the CBNRM (Botswana, 2010). So to have

a chance of success, the CBNRM programme needed strong guiding principles and

means of translating these principles into a Policy, hence promulgation of CBNRM Policy

in 2007.

CBNRM policy and guidelines process was participatory with input from CBNRM

stakeholders. The policy was subjected to several phases of decision-making process

before it could be finalized and promulgated. These phases are summarized in Table 2.1.

These phases are further discussed in Section 3.

Table 2.1 Key stages of CBNRM policy decision-making process Phase 1: CBNRM policy drafting stage

Period Activity/milestone PP activities Lead agency comments

1999-2000 Merging of draft Veldt Products Policy and draft Wildlife Hunting Quotas policy -1st draft CBNRM policy

Workshops Conferences Kgotla meetings

Ministry of Commerce (Department of Wildlife and National Parks) NB: that was before the establishment of MEWT

Not much happened between 2000-2002. The policy issue was dormant until the establishment of MEWT in 2002

Phase 2: Policy drafting stage Period Activity/milestone PP activities Lead agency comments 2001-2005 2nd draft CBNRM National Ministry of At the national



w

policy conference Environment Wildlife and Tourism(MEWT)

conference only guidelines and topical issues were presented to stakeholders and discussed. However, stakeholders had no access to the whole draft CBNRM policy

Phase 3: Approval stage Period Activity/milestone PP activities Lead agency comments 2006 Cabinet draft policy MEWT + Cabinet At this stage

Cabinet made some recommendations to be included in the Policy, such as the allocation of revenues where Government gets 65% while communities retain 35%

Phase 4: Approval stage Period Activity/milestone PP activities Lead agency comments 2007 Parliament draft Parliament forum Parliament and

MEWT The policy was passed in July 2007

Section 3: Opportunities For and Patterns of Public Participation in CBNRM policy

Formulation Process

CBNRM approach rests on the recognition that local communities must have direct

control over the utilization and benefits of natural resources-wildlife, veldt products-in

order for the communities to value these resources and use them in a sustainable manner

(Nkhata, 2005). In this sense the communities have a say in the programme and policy

decisions that are made (community engagement).

Public participation is a process in which stakeholder and public concerns, views and

values are incorporated into decision-making process. It is not a single event; co-



x

management of a resource necessitates ongoing commitment. There are three broad and

essentially interlinked levels of stakeholders’ participation: information, communication

and collaboration. Effective participation is related to: empowerment, ownership,

communication and responsibility, with the goal of achieving better and more acceptable

decisions (Creighton and Creighton, 2008; IAPP, 2007). ‘Community engagement’ is a

dimension of public participation which supports mutual respect of values, strategies,

and actions for authentic partnership of people affiliated with or self-identified by

geographic proximity, special interest, or similar situations to address issues affecting the

well-being of the community of focus (Jones and Wells, 2007; Fawcett et al, 1997).

There are many other dimensions of participation. Two typologies by Pretty (1995) and

Bass et al (1995) stand out. In conceptualizing how people participate in development

programmes and projects, Pretty (1995) identified seven levels of participation intensity

(Annex 1). They range from ‘manipulative participation’ being coercive, to ‘self-

mobilization’ being voluntary yet empowering. Levels 1 to 4 represent lower form of

participation while 5-7 signifies higher and desirable level of participation. Bass et al

(1995)’s typology of participation in policy making and planning on the other hand

consists of six levels that range from ‘participation by listening only’ to ‘participants

involved in decision making policy, strategy or its components (Annex 2). Levels 1-3

signify low participation while 4-6 indicate high participation. It is in this light that a

clear contextual meaning of public participation is flagged. ‘Participation by consultation’

(see Annex 1) as explained by Pretty (2005) is the adopted meaning of public participation

in this case study. Public includes communities, NGOs, private sector and government.

The decision making process of CBNRM policy went through several phases that have

been summarized into four:

Phase 1(1999-2000)

Policy related consultations with a wide variety of CBNRM stakeholders began around

mid 90s. Community Based Organizations (CBOs) representatives participated in the

decision-making process. Workshops, conferences and kgotla meetings (kgotla is a



y

traditional meeting place) were held to solicit information to include in the policy.

National CBNRM Forum in collaboration with Botswana Community Based

Organizations Network (BOCOBONET) actively participated in the process while the

Government through the Department of Wildlife and National Parks was the process

facilitator. The objective of public participation was to facilitate active involvement of the

public, especially rural communities, in wildlife and natural resource management. A

draft policy was forwarded to the Ministry of Commerce and Industry, where the

Department of Wildlife and National Parks was housed, to further facilitate it.

Phase 2 (2002-2005)

It took a while before the draft policy could be looked into by the relevant organizations.

This was due to institutional restructuring that saw the establishment of the Ministry of

Environment Wildlife and Tourism (MEWT) in 2002 where the Department of Wildlife

and National Parks (DWNP) was moved. It was not until that time when CBNRM policy

formulation issue was considered. Soon after institutional restructuring a new draft

which included some of the recommendations from the 1st draft was drawn. The second

drafting occurred at the time when CBOs were fraught with problems of poor

relationships and misappropriation of funds. Public participated in the decision-making

process during this stage. Kgotla meetings, workshops and conferences were platforms

through which the public participated. A vernacular language, Setswana, was used

during consultation process activities so that communities could freely take part.

Phase 3 (2006)

After consultations with stakeholders a draft CBNRM policy was presented to Cabinet,

an executive branch of government, to endorse it. The draft was endorsed with

additions, such as clause 10.3 that states that:

Thirty-five percent (35%) of the proceeds of the sale of natural resource

concessions and hunting quotas may be retained by the CBO. Sixty-five (65%) shall

be deposited in the Fund for the financing of community based environmental



z

management and eco-tourism projects throughout the country. The minister may

however, vary these percentages depending on the circumstances and needs of a

particular CBO” (Botswana, 2007: 14)

Phase 4(2007)

Draft CBNRM policy was discussed by the Parliament, which later approved and passed

it as a policy. The community representatives however expressed its dissatisfaction with

the 65/35 % revenue share as revealed below:

“The communities clearly expressed their discomfort regarding Government’s decision to

take 65% of CBNRM revenues from communities to establish a national environmental

trust fund. It was emphasized that there was a need to lobby Government against such a

decision. On the other hand, some participants urged their colleagues to invest CBNRM

revenues wisely. The 65 % that Government is threatening to take from CBOs is only

money derived from the sale of quotas, while Government has no control over funds

derived from investment ventures. It was recommended to question the rationale

underlying the proposed 65-35% ratio and generally lobby to Government to consult

communities”

National CBNRM Forum proceedings report, 2006:13).

However, despite this, the policy was passed. Earlier in 2006 at the National CBNRM

Forum the stakeholders recommended that “revenues be allocated at 35% to Government

and 65% to communities” but that was not considered. The government as the main

decision maker had to ensure that the interests of the nation at large were served hence

the 65/35% revenue distribution. Despite this, most of the recommendations that the

public had made were considered. This is participation by consultation type of Public

participation (PP), where the policy makers “are not under obligation to take on board

people’s views” (Pretty, 1995).

Section 4: Evaluation of Procedural Aspects of the Decision-making Process



aa

Procedure in decision-making process is vital. There is a step by step process that

decision makers have to follow before the desired product could be produced. However,

in spite of the way the process is presented on paper, decision making is a nonlinear,

recursive process. That is, most decisions are made by moving back and forth between

the choice of criteria (the characteristics we want our choice to meet) and the

identification of alternatives (the possibilities we can choose from among) (Harris, 2009).

CBNRM policy decision making process was subjected to the same setting. Public

participation in CBNRM policy formulation process started as early as 1999, however it

evolved with time. It began with active participation of public especially the rural

community based organizations through Botswana Community Based Organisations

(BOCOBONET). Kgotla meetings were the main participation activity during the

CBNRM decision process. This PP activity targeted the general public. Workshops

targeted specific groups such as and community leadership such as dikgosi/dikgosana

(chiefs), Village Development Committeess (VDCs) and Board of Trustees. It was at these

platforms that public aired their views. Although the lead agency had made an attempt to

build capacity through holding workshops such as ‘Workshop Nonotsho’ where CBOs

were trained on Project and Financial management, the public highlighted that it was not

enough.

Section 5: Evaluation of Determinants affecting Public Participation

Issues of level of interest of public, organizational capacity and organization, availability

of relevant information and level of knowledge play a vital role in determining the

effectiveness of public participation. Public showed interest in the decision-making

process in the CBNRM policy as it was viewed as a necessary tool that would address

management and operation issues that were prevalent among CBNRM programmes and

Trusts (Johnson, 2009). However, conflicts between the Government and the communities

were not uncommon. For instance, politicians differed with the communities about the

distribution and sharing of benefits accrued from CBNRM programmes that they should

benefit the whole nation instead of a few number of people. Other burning issues



bb

included power balance and joint venture partnerships (the link between companies and

communities is often unsatisfactory due to differences in strategies and lack of

understanding of each other’s motives and strategies), hence the establishment of the

CBNRM National Forum in an attempt to balance these interests and forge a collective

voice around issues. It was meant to provide a platform for broader stakeholder dialogue,

facilitation, coordination, and co-operation on CBNRM in Botswana (Arntzen et al, 2003).

The National CBNRM Forum (consists of CBOs, NGOs, private sector, government and

various International Cooperating Partners)’s primary priority has been on the policy,

initially lobbying for its development through to adoption and implementation

(Magweregwede, 2009). This forum was formed in 2000 and its main aim is to “fill a niche

in the institutional context of CBNRM in Botswana by providing a platform for dialogue,

support and co-operation that brings together all stakeholders on an equal footing and on

neutral ground. The CBNRM Forum is based on the common objective to implement

Community Based Natural Resources Management successfully in Botswana and with

the understanding that the process will be beneficial to all stakeholders”

(Magweregwede, 2009:42).

The Forum however has a core membership which represents the five (5) stakeholder

groups with a maximum of six (6) representatives each, CBOs included (see table below).

At the Biennial CBNRM Conference, the stakeholders decide amongst themselves who

will represent them in the Forum. The BOCOBONET Board (15 members) represents the

CBOs. Districts are represented by District CBNRM Forums.

Table: Stakeholders who participated in CBNRM Conference

CBOs NGOs Private Sector District fora/TAC

Government Departments

All 14 BOCOBONET Board members and the BOCOBONET Executive Officer

BTB KCS BirdLife AWF Kuru Family VPR&D

HATAB BWMA BOCCIM Consultants: Ecosurv Real Africa

Ngamiland Forum Gantsi Forum; TACs in Chobe, Central

MLG (Dept of local govt. and dev.) MOA (Dept. of crop production) MFDP (RDDC) MEWT (DOT.



cc

Services, People and Natural Resources

Kgalagadi Southern and Kgatleng Districts

DWNP, Museum, DFRR and DEA) MLH (DOL)

Source: Magweregwede, 2009:43

The National CBNRM Forum provided a platform upon which CBNRM policy issues

were discussed. Although there was great interest in the CBNRM policy process by

stakeholders, some, especially CBOs did not have enough financial resources to fully

participate in the process. Moreover, despite the large number (over 100) of registered

CBOs and Trusts, very few of them are actually active operating as viable entities,

generating revenue, receiving benefits, managing their natural resources or distributing

their benefits within the community. The declaration of Botswana as a ‘medium-income

country’ internationally led to withdrawal of funding b international donors for the

fledging CBNRM NGOs that had emerged in response to the CBOs need to develop

capacity and this led to the collapse of many NGOs and consequently of CBOs

(Rosemeijer, 2003; Stephen, 2009). Because of these issues only few CBOs participated in

the decision making process. The stakeholders had a collective voice around issues of

concern, but the government had the final say as the main decision maker. Public

participation during CBNRM Policy formulation process was compromised by lack of

knowledge on policy issues and capacity to fully engage with the process and

inaccessibility to relevant information.

Section 6: Evaluation of Decision Outcome

The CBNRM Policy in Botswana was passed by Parliament in July 2007. It is hoped that

the Policy will able to devolve management rights over natural resources directly to

qualifying communities and give communities’ rights to conservation activities leading to

sustainable development and poverty alleviation(Government of Botswana, 2010).



dd

Public participated in the decision-making process but they felt that it was not

satisfactory because not enough was put into stakeholder consultation. The government

on the other hand explained though it was desirable to cover all areas, that was not

possible due to limited resources.

Stakeholders complained that the CBNRM policy was rather reactionary to the then

prevailing problems of misappropriation of funds and dynamics of power relations that

were common among the CBOs due to lack of capacity. As they explained that

government’s voice dominated throughout. Most communities were not happy with the

inclusion of Clause 10.3 (65/35% revenue distribution). There was a feeling that the

Policy is restrictive rather than enabling. Also conflicts between communities and

Technical Advisory Committees (TACs) were reported. TACs (consist of government

officers from District Council, District and Tribal Administration, Ministry of

Environment Wildlife and Tourism (Department of Wildlife and National Parks,

Department of Environmental Affairs, Department of Forestry and Range Resources and

Department of Tourism), Land Boards, Department of Lands, and other relevant

Ministries)’s role is to oversee the tendering process and operation of the Joint Venture

Partnership. It is also involved in the entire process of CBRNM, from planning to

implementation of the projects. According to the CBNRM Policy (Government f

Botswana, 2007), all tendering procedures for the awarding of natural resource use

concessions will be overseen by the TAC who will provide technical appraisals and

analyses of the tender bids submitted. Communities highlighted that they are often

aggrieved by the decisions made by TAC, and recommended that “TAC involvement in

CBNRM should be an interim solution, while a more sustainable “full time” mechanism

is required” (National CBNRM Report, 2006:20). They still feel Government is controlling

and determining what is good for them. Communities made a recommendation that the

membership of TAC be augmented to include NGOs, CBOs and private sector where

necessary. The government on the other hand had to establish this committee to oversee

the CBNRM process in districts since most communities had no capacity to do so.



ee

Community awareness of the new CBNRM policy is another way which could give a hint

about public participation. According to a survey conducted by Johnson in 2009;

• Of the 47 CBOs surveyed, 40% of members of Boards of Trustees were aware of the

new policy, whilst 23% had no knowledge of the new policy, and 34% were

vaguely aware of its existence

• Only 28% of the communities related to the CBOs interviewed were aware of the

new CBNRM policy, 38% were unaware and 32% were somewhat aware of its

existence

• And on whether the new policy has had impacts on their activities, only 28%

indicated that it had had an impact upon their activities, whilst 55% indicated that

it had made no difference to their ongoing CBNRM activities and that only 15%

reported a degree of impact

Taking all these three aspects, it can be assumed that although communities participated

in the decision-making process they were not fully and actively involved. The expectation

is that at least all CBOs should be aware of the new policy since it affects them directly.

However there could be many reasons why the CBOs do not know about the new policy.

Another conclusion drawn from here could be that the new policy was not adequately

introduced to all communities involved in formal CBNRM activities or that the

communities were generally aware of its existence but uncertain of its exact implication

and were adopting a ‘wait-and-see’ attitude as to how it would be implemented by the

Government (Johnson, 2009). It is worth noting that during the surveys some members of

the community highlighted that they do not own the policy as their recommendations

were not considered. They felt that the policy was imposed on them. Hitherto the policy

has not been implemented although the guidelines were endorsed in 2008. Government is

still in the process of formulating a coordination and implementation plan.

Section 7: Lessons Learnt

1. Communities continue to be passive recipients of benefits with no direct

involvement in the management and decisions about the natural resources.



ff

Capacity building is necessary for effective and fruitful participation by the public

in policy decision-making process. This process must be tightly linked to

redefining CBNRM and sharing common understanding among the stakeholders

to avoid conflicting understanding of the concept. Currently, the concept is loosely

defined and hardly digestible to agree on benchmarks. This process must be

considered at the regional level to allow effective sharing of lessons.

2. Minimal interference of the government is required for CBNRM to be an effective

tool. But in the case of Botswana this is a challenge since natural resources are

national assets, thus it has a right to intervene to protect and conserve them where

they are threatened. On the other hand, policy and legislation need to enable

communities themselves to take the key management decisions of who uses and

benefits, how much of the resource should be used, when and how. Failure to do

this will result in CBNRM being seen as an attempt to transform rural

communities into agents of the government. As agents, the communities cannot

make or implement any significant decisions that correspond to their real needs

and aspirations. Ultimately, they are left with no effective say over the valuable

natural resources on which they depend for their livelihoods(Nkhata, 2005)

3. Public participation is the integral part in the formulation of CBNRM policy

process. Although public participated in the decision-making process, it was not

satisfactory.

4. Genuine public participation requires social inclusion, personal security, and

freedom of speech and assembly. A strong civil society, civic education, and good

channels of communication between all levels of society facilitate this process.

Only a considerable commitment of time and resources will make genuine public

participation possible (Burgess and Malek, 2005).

5. It is also important to ensure that communities themselves are aware of their rights

and to impart knowledge and skills for communities and other stakeholders to

identify other policy issues on which they should try to influence change through

undertaking advocacy activities (Jones, 2004).



gg

6. Politicians need to be continuously engaged to secure and/or strengthen political

will. Environmental policy making throughout the world is highly politicized and

problematic endeavor, it is especially so in developing countries (Agbese, 1998). It

is thus imperative that politicians are well conversant with environmental policy

issues.

7. Strong relationships between Government and communities are vital. There is

need to build capacity among the members of the public to effectively contribute in

the decision-making processes. It was observed that community’s contribution was

limited due to poor understanding of policy issues. This often results in conflicts

between government and the public. As long as natural resources continue to play

an important role in the socio-politics, economies and cultures of rural southern

Africa, communities will continue to challenge governments’ decisions that are

purportedly designed to enhance conservation and rural development. What is

required, therefore, is genuine rural enfranchisement (Nkhata, 2005).



hh

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Agbese, P.O., 2005: Environmental challenge facing Africa: Governmental response, in

J.G. Jabbra, O.P. Dwivedi: Governmental Response to Environmental Challenge in

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Management in Malawi and Botswana, World Development, 34(11), 1942-1957

Burgess, H., and Malek, C., 2005: Public Participation,

(www.beyondintractability.org/essay/public_participation/) (03 Aug 2010)

Government of Botswana, Vision 2016

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Policy, Ministry of Environment Wildlife and Tourism, Botswana Government

Printer, Gaborone.

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Government printers, Gaborone.

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and Monitoring of the Implementation of the Community Based Natural Resource

Management Programme by the Ministry of environment, Wildlife and Tourism,

Performance Audit Report No.1 of 2010



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Harris, R., 2009: Introduction to decision-making,

(http://www.virtualsalt.com/crebook5.htm) (02 August 2010)

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narratives in biodiversity conservation, Forum for Development Studies, 2, 341-

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Available: http://www.iap2.org/. (23 July 2010)

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policy and legislation in Botswana, Malawi, Mozambique, Namibia, Zambia and

Zimbabwe, For WWF SARPO Regional Project for Community-based Natural

Resource Management (CBNRM) Capacity Building in Southern Africa.

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http://www.creightonandcreighton.com. (23 July 2010)

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participatory partnered research. JAMA 2007; 297:407–410. p. 408.

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Gaborone.

Fawcett SB, Paine-Andrews A, Francisco VT, Schultz JA, Richter KP, Lewis RK, Williams

EL, Harris KJ, Berkley JY, Fisher JL, Lopez CM. Using empowerment theory in

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jj

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Annex 1: A Typology of Participation: How People participate in Developmet Programmes and Projects Typology Characteristics of each type

1. Manipulative participation

Participation is simply a pretense, with ‘people’s’ representatives on official boards but who are unelected and have no power

2. Passive participation People participate by being told what has been decided or has already happened. It involves unilateral announcements by an administration or project management without any listening to people’s responses. The information being shared belongs only to external professionals

3. Participation by consultation

People participate by being consulted or by answering questions. External agents define problems and information gathering processes, and so control analysis. Such a consultative process does not concede any share in decision-making , and professionals are under no obligation to take on board people’s views

4. Participation for material incentives

People participate by contributing resources, for example labor, in return for food, cash, or other material incentives. Farmers may provide the fields and labour, but are involved in neither experimentation nor the process of learning. It is very common to see this called participation, yet people have no stake in prolonging technologies or practices when the incentives end

5. Functional participation

Participation seen by external agencies as a means to achieve project goals, especially reduced costs. People may participate by forming groups to meet predetermined objectives related to the project. Such involvement may be interactive and involve shared decision making, but tends to arise only after major decisions have already been made by eternal agents. At worst, local people may still be co-opted to serve external goals

6. Interactive participation

People participate in joint analysis, development of action plans and formation or strengthening of local institutions. Participation is seen as a right, not just a means to achieve project goals. The process involves interdisciplinary methodologies that seek multiple perspectives and make use of systemic and structured learning processes. As groups take control over local decisions and determine how available resources are used, so they have a stake in maintaining structures and practices

7. Self-motivation People participate by taking initiatives independently of external institutions to change systems. They develop contacts with external institutions to change systems. They develop contacts with external institutions for resources and technical advice they need, but retain control over how resources are used. Self mobilization can spread if governments and NGOs provide an enabling framework of support. Such self-initiated mobilization may or may not challenge existing



ll

distributions of wealth and power. Source: Sikuku 2002,( after Pretty (1995), and Satterthwaite (1995))

Annex 2: A Typology of Participation in Policy Process and Planning

1. Participants listen only-e.g. receiving information from a government project representative

campaign or open database

2. Participants listening and giving information-e.g. through media activities, “hot-lines”

3. Participants being consulted-e.g. through working groups and discuss policy

4. Participation in analysis and agenda setting-e.g. through groups, round tables and commissions

5. Participation in reaching consensus on the main strategy elements-national round tables,

parliamentary committees etc

6. Participants involved in decision-making on the policy components

Source: Sikuku, 2002, after Bass et al, (1998:46)



mm

Annex 3: Table showing CBOs that participated in the various forums that discussed the CBNRM Draft Policy Name of CBOs Workshop

held 9-11 Jan 1999 1st Workshop

Workshop held 9-12 March 1999 2nd Workshop

Workshop held 10-11 June 1999 3rd Workshop

Conference held 26-29 July 1999 1st Conference

Forum held 30-31 May 2000

Conference Held 14-16 Nov 2001 2nd Conference

Boikago � � Botlhale jwa phala

�

Cgaecgae Tlhabololo Trust

� � �

Chobe Enclave Cons Trust

� � �

Emang � Gaing-O Com Trust

� �

Gwezotshwa Nat Res Trust

� � � �

Molengwane � � Itekeng � Itekeng Mmaothate

�

Kalepa Trust � Kgakabojne Association

�

Kgatleng Nature Com Trust

�

Kgetsi ya Tsie � � Khumaga Trust � Kobokwe Ditso Cultural Village

�

Koinaphu Trust � � Kuangoo

�

Kuru D’Kar Trust

� � �

Mababe Zokotsama Trust

� �

Madinare Dev Trust

�

Mathe-a-Badimo Com Trust

�

Moremi Gorges � Mosu Water �



nn

Springs Mowana Trust � Nata Sanctuary � Nqwaa Khubee Xeya Trust

� � �

Okavango.Com Trust

�

Okavango Jakotsha Com Trust

�

Okavango Kopano Mokoro Com Trust

�

Okavango Polers Trust

� � �

Qaecqae Com Trust

�

Sankuyo Tshwaragano Management Trust

� �

Thari ya Banana � Thokwana Com Trust

�

Khwai Dev Trust

�

Khwai Com Trust

�

Kgobokanyo Group

�

Maiteko Dev Trust

�

Kuru Dev Trust � � Xwiskurusa Nat

�

Comments Data were not available

20% of participts were CBOs’ reps

CBOs were not present

12% of particpts were CBOs reps

9% of particpts were CBOs reps

Source: Sikuku, 2002

Documents

BOTSWANA’S PROFILE ON IMPLEMENTATION OF PRINCIPLE … · Botswana’s Profile on Implementation of Principle 10 of Rio Declaration December 2010 Department of Environmental Affairs,