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The Quality of Botswana's Environmental Protection Regulatory Framework

Published online by Cambridge University Press:  20 March 2020

Tinashe Madebwe
Tinashe Madebwe*
Affiliation:
University of Botswana
*
madebwet@ub.ac.bw
Rights & Permissions [Opens in a new window]

Abstract

This article explores why Botswana's environmental protection regulatory framework is failing to stem environmental deterioration. Based on the observation that such deterioration persists despite the fact that there is a framework in place, the discussion draws from experience with successful environmental protection regulatory frameworks around the world. The discussion establishes that successful environmental protection regulatory frameworks incorporate numerical quality and ecological standards, a command and control approach (with context-sensitive alternatives to account for the approach's limitations), and credible enforcement mechanisms. This article measures the extent to which Botswana's environmental protection regulatory framework incorporates these elements; it identifies that the reason why the framework has failed to stem environmental deterioration is that it does not adequately incorporate these qualities and proposes how this could be addressed going forward.

Keywords

Botswanaenvironmental protectionregulationstandardsenforcement

Information

Type
Recent Developments
Information
Journal of African Law , Volume 64 , Issue 2 , June 2020 , pp. 215 - 228
Copyright
Copyright © SOAS, University of London, 2020

INTRODUCTION

Despite the fact that Botswana is home to some of the most sensitive and endangered environmental phenomena in the world, the country's most recent, and 11th, National Development Plan (which purports to guide the overall development of the country and contains government strategies over the lifespan of the plan) proclaims that the country's environmental protection regulatory framework has not stalled environmental deterioration to acceptable levels.Footnote 1 While the conclusion is accurate, it is reached following a piecemeal and uncoordinated approach to establishing why the country has failed to stall deterioration over the period covered by the previous plan. Considering that the interconnectedness of the environment and shared ownership of the environment are now appreciated and celebrated at a global level, making globally important what happens to the environment of any one state (especially one with an environment as sensitive as Botswana's), this article thus explores, in a more coordinated fashion, why the country's environmental protection regulatory framework has not stalled environmental deterioration. This article begins from the premise that the fact that the environmental protection regulatory framework is failing to stall environmental deterioration, indicates that the problem lies in the constitution and quality of the framework. The article therefore looks to assess the quality of the country's environmental protection regulatory framework, by first establishing what it takes to craft a successful environmental protection regulatory framework and secondly using this to assess the quality of Botswana's framework and, consequently, its capacity to stall environmental deterioration to acceptable levels.

ESTABLISHING AN ASSESSMENT FRAMEWORK

In looking to establish what it takes to craft a successful environmental protection regulatory framework, it is useful to begin by noting that the coordinated movement towards such frameworksFootnote 2 began in earnest after adoption of the Stockholm Declaration (which emerged following the UN Conference on the Human Environment in 1972)Footnote 3 and gathered momentum following adoption of the Rio Declaration (which emerged following the UN Conference on Environment and Development in 1992).Footnote 4 Signatory states to these declarations have been working progressively to protect the environment, using environmental protection regulatory frameworks at the state level.

As expected, early versions of states’ environmental protection regulatory frameworks assumed different forms, reflecting particular states’ circumstances and preferences. As time passed and more frameworks emerged, however, the initial differences in the approaches adopted to constructing these frameworks gave way to convergence in the approach to their crafting.Footnote 5 Furthermore, and importantly for the present purpose, in the modern world such convergence makes it possible to make three broad observations about successful environmental protection regulatory frameworks that can be relied on to serve as objective indicators of what it takes to craft a successful regulatory framework.

First, the realization over time that environmental protection regulatory frameworks have to balance the pursuit of environmental protection against the competing pursuits of economic development and social development has led to regulatory frameworks being based on sustainable development analyses that look to find a sustainable balance among these three competing interests.Footnote 6 Since such a balance is best achieved based on physical and social science knowledge, in more recent times these sustainable development analyses have grown to be informed by sustainable development indicators. These indicators are collectively established statistical values arrived at on the basis of physical and social science knowledge, and can provide early warning of environmental setbacks.Footnote 7 The result is that, in the regulation of media such as air, land or water, successful regulatory frameworks rely on sustainable development analyses informed by sustainable development indicators to formulate baselines that indicate the extent to which different hazardous substances can be sustainably deposited into air, land or water.Footnote 8 These baselines become numerical quality standards relied on to formulate more piecemeal standards, such as technological and emission standards that regulate quantities of hazardous substances that actors in the state can emit into air, land and water.Footnote 9 In much the same way, successful regulatory frameworks rely on sustainable development analyses, informed by sustainable development indicators, to establish baselines indicative of the extent to which species of flora and fauna can sustainably be exploited. Reliance is subsequently placed on these baselines to craft more piecemeal standards that regulate other issues central to the protection of flora and fauna, such as species of flora and fauna that should be protected, controlled or culled, as well as laws governing when the tourism or hunting seasons begin.Footnote 10

Secondly and rooted in the realization that regulation based on the common law and contract is costly and more reactive than proactive, which is not ideal in environmental protection, successful environmental protection regulatory frameworks commonly adopt a command and control approach.Footnote 11 A central quality of this command and control approach is that it utilizes systems of prior authorization before undertaking actions with predictable environmental impacts. This approach also grants regulators extensive inspection powers of entry without warrant to perform their duties. Preventing such entry is widely criminalized. In addition, command and control approaches also afford regulators the opportunity to use a mix of criminal and / or civil liability to bring parties into compliance with the law. Furthermore, these laws commonly empower regulators to compel an infringing party to clean up the harm caused. Importantly though, while successful environmental protection regulatory frameworks adopt this command and control approach, it has been acknowledged over time that the success of this approach depends on unpredictable and inconsistent variables. These include the regulator's willpower, material or institutional limitations of organizations, the psychology and professional backgrounds of those charged with regulating, and the degree of investment of capital resources.Footnote 12 Thus, securing the success of a command and control framework is contingent on ensuring that there is a deliberate, centralized and coordinated framework that also relies on context sensitive alternative approaches (such as economic instruments, self-regulation and environmental agreements)Footnote 13 to account for the limitations with the command and control framework.Footnote 14

Thirdly, successful environmental protection regulatory frameworks commonly feature potent enforcement mechanisms that are typically headed by centralized environmental protection agencies.Footnote 15 This centralization places enforcement in the public domain in a way that lessens the likelihood of the capture of regulators by regulated interests, which is a reference to those instances where self-interested regulators look to advance the interests of regulated entities rather than those of the public at large.Footnote 16 Centralization also allows the regulator to determine, based on an assessment of the overall environmental good to be attained, when to waive dogmatic enforcement so that alternatives to the command and control approach may be pursued. Separately, and in deference to complexities encountered in regulating environmental deterioration (such as evidential burdens, prosecution problems and the views of environmental crimes), the potency of successful environmental protection regulatory frameworks is also secured through the move towards responsive enforcement.Footnote 17 This is an approach to enforcement whereby enforcement efforts are based on a range of sanctions that extend from persuasion and warnings at the outset, to civil penalties, criminal penalties, licence suspensions and then licence revocations as appropriate.Footnote 18 In addition to centralization and responsive enforcement, the potency of successful enforcement mechanisms is also secured by ensuring that there is public participation. It is now well accepted that there are three pillars to public participation: access to information, actual participation and access to justice.Footnote 19 Opportunities for participation allow the public to enforce laws by empowering them to leverage the threat of bringing adjudicatory action against an actor who is causing harm, to encourage that actor to comply with the law.Footnote 20

MEASURING BOTSWANA'S FRAMEWORK AGAINST THE ASSESSMENT FRAMEWORK

In light of the preceding discussion, which established the qualities exhibited by successful regulatory frameworks, this section considers why Botswana's environmental protection regulatory framework (consisting of legislative provisions in environmental laws, other laws with environmental protection implications, environmental policies and all relevant institutions) fails to stall environmental deterioration to acceptable levels. It does so by measuring the extent to which Botswana's framework incorporates numerical quality and ecological standards, a command and control approach with alternatives, and a potent enforcement mechanism.

Numerical quality and ecological standards

While it is now well established that successful environmental protection regulatory frameworks are based on sustainable development analyses informed by sustainable development indicators that lead to numerical air, land and water quality standards as well as numerical ecological standards for flora and fauna,Footnote 21 Botswana's environmental protection regulatory framework is not based on such analyses and standards. To illustrate, most of Botswana's prominent air, land and water laws, such as the Atmospheric Pollution (Prevention) Act,Footnote 22 Waste Management ActFootnote 23 and Forest Act,Footnote 24 make reference to what are essentially numerical quality standards but are not based on these standards.Footnote 25 Similarly, major laws regulating flora and fauna, such as the Fish Protection ActFootnote 26 and Fish Protection Regulations,Footnote 27 are not based on numerical ecological standards.Footnote 28 The Wildlife Conservation and National Parks ActFootnote 29 does make reference to standards in sections 24(6) and 32(2), but its approach is not informed by these standards.

Interestingly however, the fact that the regulatory framework is not based on these analyses and resulting standards has not precluded a move towards recognizing that it should ideally be crafted on the basis of numerical air, land and water quality standards, as well as numerical ecological standards for flora and fauna (such as technology standards, emission standards and hunting quotas). For instance, section 15(b) of the Atmospheric Pollution (Prevention) ActFootnote 30 inexplicably makes reference to technology and emission standards, despite the absence of numerical quality air standards. Similarly, the Forest ActFootnote 31 authorizes the president to declare any land as forest land and empowers the minister to declare some trees protected in consultation with land boards or private land owners.Footnote 32 The same holds true in respect of section 32(2) of the Wildlife Conservation and National Parks Act, which provides that the director may consult with appropriate local authorities and land boards in determining the number of animals of each species, or of a particular sex, that may be hunted during any season.

Certainly, nothing precludes anyone with the task of crafting these technology standards, emission standards and hunting quotas from doing so on the basis of sustainable development analyses informed by sustainable development indicators that lead to numerical air, land and water quality standards, as well as numerical ecological standards for flora and fauna.Footnote 33 However, experience with successful regulatory frameworks suggests that this approach is far from ideal. The government effectively acknowledged this when, in developing the Environmental Assessment Act of 2011, it looked to reconceive the Department of Environmental Affairs as a statutory institution. The reconstituted department's tasks were to include: coordinating the formulation and implementation of environment friendly policies, legislation, programmes and projects to ensure that the short, medium and long-term impact on the natural resources and environmental capital of the country are at least neutral and at best highly beneficial; ensuring that the country's environment and natural resources are managed according to nationally and internationally acceptable scientific principles; coordinating environmental research and development efforts between all interested parties; and initiating new research and demonstration projects where gaps exist.Footnote 34 However, this statutorily created formulation of the department did not materializeFootnote 35 and, as the most recent National Development Plan indicates, by 2017 the framework remained deficient in this respect.Footnote 36

Command, control and context-sensitive alternative approaches

A basic appraisal of Botswana's environmental protection regulatory framework points to four features that suggest that the framework is based on a command and control approach.Footnote 37 First, major laws that form part of the environmental protection regulatory framework, such as the Fire Service Act,Footnote 38 Wildlife Conservation and National Parks ActFootnote 39 and Tribal Land Act,Footnote 40 carry provisions styled as commands, with controls provided where commands are not followed.Footnote 41 Secondly, several laws that form part of Botswana's environmental protection regulatory framework require citizens and any actors in Botswana to obtain prior authorization from regulators before conducting any activities that may cause environmental harm.Footnote 42 These laws give regulators extensive discretion to grant permission, attach conditions to the granting of permission or not to grant permission at all.Footnote 43 Thirdly, several laws that form part of Botswana's environmental protection regulatory framework grant regulators extensive inspection powers and, under these laws, it is a criminal offence to obstruct an official performing their duties or deny entry to the official.Footnote 44 Fourthly, laws that form part of the framework afford regulators the opportunity to use a mix of criminal and / or civil liability penalties to bring parties into compliance with the law. For instance, section 22 of the Forest Act provides that, “nothing contained in this Act shall abrogate from or interfere with the right of the State or of any person to sue for and recover damages, or relief against injury, caused by a forest offence”.Footnote 45 In addition, these laws commonly empower regulators to compel an infringing party to clean up any harm caused.Footnote 46

Importantly however, while successive national budgetsFootnote 47 point to Botswana's financial commitment to regulating environmental protection based on a command and control approach, not enough has been done to account for weaknesses with this approach. For instance, while it is well established that these weaknesses mean that securing the success of a command and control framework is contingent on ensuring that there is a deliberate, centralized and coordinated framework, in Botswana there is no framework environmental legislation to coordinate regulatory efforts. Instead, a series of commands and controls occurs in several laws that are not coordinated. In the same way, there is also no centralization and coordination of the command and control approach at the institutional level. Regulation is loosely led by the Ministry of Environment, Wildlife and Tourism, which has created subsidiary institutions such as the Departments of Environmental Affairs, Waste Management and Pollution Control, Forestry and Range Resources, Wildlife and National Parks, Meteorology, and Tourism, as well as the Botswana Tourism Organisation. However, for all its merits, the ministry is not a regulatory body in the mould of an environmental protection agency. The government acknowledged this during the development of the 2011 Environmental Assessment Act, when it sought to empower the Department of Environmental Affairs to preside over environmental protection in an environmental protection agency-style role. However, this did not happen, so there is now no centralized institution presiding over environmental protection in an environmental protection agency-style role. Separately, while it is known that weaknesses with the command and control approach mean that securing the success of the framework is contingent on having context sensitive alternative approaches in place, Botswana's framework does not offer a coordinated system of alternatives. It merely offers an uncoordinated mix of alternatives to the command and control approach. For instance, the Department of Primary Health has previously partnered with the Ministry of Local Government to facilitate community-managed waste collection programmes in communities.Footnote 48 Another alternative has been the initiative to encourage the recycling of cans by paying members of the public money when they hand in prescribed quantities of used cans, led by non-governmental organizations such as Collect-a-Can.Footnote 49 There has also been the move towards community based natural resource management as an alternative. This approach is outlined in the Community Based Natural Resource Management PolicyFootnote 50 and is based on recognition of the fact that members of any community share an interest in improving their livelihoods through sustainable management and equitable utilization of natural resources in their environs. The policy thus looks to complement the command and control approach by promoting partnerships between all stakeholders to secure wildlife management through community participation where possibleFootnote 51 without recourse to the command and control framework in the first instance. Importantly though, as laudable as the move towards alternatives may be, the reality is that these alternatives have not been crafted on the basis of sustainable development analyses informed by sustainable development indicators and the resultant numerical quality standards and numerical ecological standards. While they may lead to some environmental protection victories, they therefore do not contribute to the realization of sustainable development in meaningful and measurable ways.Footnote 52

Enforcement

To the extent that the third quality of successful environmental protection regulatory frameworks is that they require an effective enforcement approach that lends credibility to the framework, it is interesting to note that Botswana's environmental protection regulatory framework reflects an appreciation of the important role that enforcement plays in the regulatory effort in three important ways.Footnote 53

First, several laws, such as the Fire Service Act,Footnote 54 Wildlife Conservation and National Parks ActFootnote 55 and Tribal Land Act,Footnote 56 reflect the move towards a punitive approach. Laws also make reference to a responsive approach to enforcement.Footnote 57 For instance, under the Mines and Minerals Act, if the minister considers that the holder of a mining lease is using wasteful mining or treatment practices, the minister may notify that holder accordingly and require the holder to cease using those practices, rather than considering suspension or revocation of the licence.Footnote 58 Secondly, and as noted above, the Ministry of Environment, Wildlife and Tourism, which is assisted in its work by several subsidiary institutions, is the lead environmental protection institution in the country.Footnote 59 Thirdly, and due in part to the influence of international law, Botswana's environmental protection regulatory framework looks to make provision for public participation.Footnote 60 For instance, despite the fact that the law does not constitutionally entrench a right of access to information, the framework provides for access to information in several laws. As an example, section 7 of the Environmental Assessment Act makes reference, inter alia, to the publication in the mass media of information on the effects and benefits of activities, using the official languages and promoting the information for a period of not less than 21 days.Footnote 61 Separately, the framework provides for participation in several laws. For example, section 32(2) of the Wildlife Conservation and National Parks Act provides that the director may, after consultation with the appropriate local authorities and land boards, determine the number of animals of each species, or of a particular sex, that may be hunted during any season in any specified controlled hunting area. Section 7 of the Environmental Assessment Act requires that, where activities with environmental impacts are undertaken, meetings should be held with the people or communities who would be affected by the intended activities, to explain the nature of the activities and their effects.Footnote 62 Furthermore, while the framework does not provide a constitutional environmental right, it commonly provides (in the legislationFootnote 63 and through the common law of delict)Footnote 64 for access to justice for people aggrieved by licensing decisions.

While this may paint a picture of a potent enforcement framework, in reality, this is barely the case for three reasons.Footnote 65 First, the fact that laws are not based on sustainable development analyses informed by sustainable development indicators means that regulation is on a piecemeal basis, with separate laws carrying enforcement provisions and the enforcement of the provisions entrusted to specialist officers whose roles are created under the statutes.Footnote 66 In addition, there is no centralized enforcement institution in place. The closest body to such an institution is the Ministry of Environment, Wildlife and Tourism. However, the officials under its several departments have no direct enforcement power, but gain that power when they are designated specialist officers under specific legislation. As the lead institution, the ministry therefore has none of the statutory enforcement power that should vest in such an institution if it is to be an effective enforcement institution. For instance, as currently constituted, it does not have the sort of statutory power to waive and adopt appropriate methods of enforcement based on the shifting circumstances on which effective institutions rely to accommodate the move towards alternatives to the command and control approach; such alternatives deviate from the simplistic enforcement model but, based on a consideration of numerical quality and ecological standards, lead to more effective environmental protection outcomes.Footnote 67

Secondly, the fact that laws are not based on sustainable development analyses informed by sustainable development indicators means that the justification for regulation is not widely disseminated, understoodFootnote 68 or held in high esteem by people and regulators.Footnote 69 This is true even at the highest levels of the enforcement chain, where “the role of the judiciary in environmental matters does not appear to be as fully developed in Botswana as it might be … It would seem useful for education and training to be undertaken so that the courts will be able to more fully discharge their duties under environmental legislation”.Footnote 70 Putting aside the fact that the framework is not founded on numerical quality and ecological standards based on sustainable development analyses informed by sustainable development indicators, regulators have therefore not even been made sufficiently knowledgeable, or concerned, about environmental protection to enable them to make effective use of the range of sanctions that the framework has put in place in order to secure punitive and responsive enforcement.

Thirdly, the potency of the enforcement mechanism has been diminished by the fact that the state's commitment to public participation in environmental protection is questionable, traceable to the fact that the state has made no effort to domesticate the Rio Declaration, which is arguably the founding global instrument on public participation in environmental protection.Footnote 71 This ambivalent attitude to public participation is reflected across national laws that provide for public participation. For instance, section 7 of the Environmental Assessment Act provides for access to information, but makes accessing such information difficult except under strict circumstances.Footnote 72 Similarly, while laws such as section 32(2) of the Wildlife Conservation and National Parks Act provide opportunities for participation, such participation is typically granted at the wide discretion of regulators, such that the provision for participation is quite diminished. Furthermore, while the framework provides access to justice, little effort has been made to educate the public on their environmental protection rights generally and their right of access to justice in particular.Footnote 73 Where people know that they have access to justice, Botswana law limits statutory access to justice predominantly to those instances where a person is aggrieved by the refusal of a licensing officer or the director to grant a permit, or by any terms and conditions imposed by them.Footnote 74 Furthermore, while people have access to justice rooted in delictual action, the courts have ruled that access to justice is reserved for people who are directly affected by harmful activities and will not be afforded to people acting in the public interest.Footnote 75 This is despite the fact that it is increasingly accepted in different parts of the world that allowing people litigating in the public interest access to court is critical in affording people access to justice in environmental matters.Footnote 76

CONCLUSION

Convergence in environmental protection regulatory frameworks across the globe has had the effect of highlighting the qualities exhibited by successful frameworks. Using these qualities as a measure, this article has argued that the fact that Botswana has failed to stall environmental deterioration to acceptable levels is attributable to three reasons. First, Botswana's environmental protection regulatory framework has stalled because it is not based on numerical quality or ecological quality standards for flora, fauna and habitats. Secondly, it has stalled because, while the framework is based on a command and control approach, this approach is not sufficiently coordinated and centralized, and is not complemented with the alternatives needed to account for the limitations of the command and control approach. Thirdly, the framework has stalled because it does not provide an adequately empowered enforcement mechanism that is based on public participation.

In this context, and drawing from experience with regulation across the world, the key to securing a more effective framework lies in the moves towards numerical quality and ecological standards, a coordinated and centralized command and control approach that incorporates varied context-sensitive alternatives, and a more compelling and centralized approach to the enforcement of laws. Following from this, centralization in standard-setting, regulation and enforcement is essential to securing environmental protection.Footnote 77 The key to securing environmental protection in the future thus lies in the move towards framework legislation that would become the leading environmental law and establish an environmental protection agency tasked with formulating numerical quality and ecological standards based on sustainable development analyses informed by sustainable development indicators. These can be used to craft a coordinated and centralized command and control framework complemented by context-sensitive alternatives. The agency would also have enforcement capabilities and lead enforcement efforts using punitive and responsive approaches.

CONFLICTS OF INTEREST

None

Footnotes

*

Senior lecturer, Department of Law, Faculty of Social Sciences, University of Botswana.

References

1 See: Ministry of Finance “Republic of Botswana: National development plan 11 (April 2017 – March 2023)” (2016), para 7.5; Wiston, M“Commentary: Status of air pollution in Botswana and significance to air quality and human health” (2017) 15/7Journal of Health and Pollution 8CrossRefGoogle Scholar. See K Jefferis and B Kenewendo “Botswana country overview 2012/13”, available at: <http://econsult.co.bw/tempex/BOTSWANA%20COUNTRY%20&%20ECONOMIC%20OVERVIEW%202012.pdf> (last accessed 2 February 2020).

2 McEldowney, JF and McEldowney, SEnvironmental Law and Regulation (2001, Blackstone Press)Google Scholar at 6. Baldwin, R, Cave, M and Lodge, MUnderstanding Regulation (2nd ed, 2012, Oxford University Press)Google Scholar at 40–49.

3 UN General Assembly, UN Conference on the Human Environment, resolutions adopted on the reports of the second committee, 15 December 1972, UN doc A/RES/2994, available at: <https://www.refworld.org/docid/3b00f1c840.html> (last accessed 2 February 2020).

4 UN doc A/CONF.151/26 (vol I) 31 International Legal Materials 874 (1992).

5 Baldwin, Cave and Lodge Understanding Regulation, above at note 2 at 37–38. McEldowney and McEldowney Environmental Law, above at note 2 at 3. F Giner “Environmental regulation and standards, monitoring, inspection, compliance, and enforcement”, available at: <http://siteresources.worldbank.org/INTRANETENVIRONMENT/Resources/GuidanceNoteonEnvironmentalRegulationandStandardsupdate.pdf> (last accessed 2 February 2020). Reviews of Regulatory Reform: Regulatory Policies in OECD Countries (2002, Organisation for Economic Co-operation and Development (OECD)), annex II, available at: <https://www.oecd.org/gov/regulatory-policy/35260489.pdf> (last accessed 2 February 2020).

6 McEldowney and McEldowney Environmental Law, above at note 2 at 3, 10 and 12.

7 UN Department of Economic and Social Affairs “Indicators of sustainable development: Guidelines and methodologies” (3rd ed, 2007), available at: <https://sustainabledevelopment.un.org/content/documents/guidelines.pdf> (last accessed 2 February 2020).

8 McEldowney and McEldowney Environmental Law, above at note 2 at 5 and 11.

9 Howarth, W “The progression towards ecological quality standards” (2006) 18/1Journal of Environmental Law 3CrossRefGoogle Scholar. Bell, S, McGillivray, D and Pedersen, OEnvironmental Law (8th ed, 2013, Oxford University Press)Google Scholar.

10 McEldowney and McEldowney Environmental Law, above at note at 2 at 3–6, 36–38 and 41–42.

11 Elworthy, S and Holder, JEnvironmental Protection: Text and Materials (1997, Butterworths)Google Scholar at 3 and 299. McEldowney and McEldowney, id at 7–9 and 18–19. Baldwin, Cave and Lodge Understanding Regulation, above at note 2 at 106.

12 Elworthy and Holder, ibid. J Dikgang and M Visser “Behavioural response to plastic bag legislation in Botswana” (Environment for Development discussion paper series, May 2010), available at: <http://www.rff.org/files/sharepoint/WorkImages/Download/EfD-DP-10-13.pdf> (last accessed 2 February 2020). “Botswana” in Southern African Institute for Environmental Assessment SADC Environmental Legislation Handbook 2012, 67, available at: <http://saiea.com/dbsa_handbook_update09/pdf/4Botswana09.pdf> (last accessed 2 February 2020).

13 Bell, McGillivray and Pedersen Environmental Law, above at note 9; Cole, DH and Grossman, PZ “When is command and control efficient? Institutions, technology, and the comparative efficiency of alternative regulatory regimes for environmental protection” (1999) Wisconsin Law Review 887Google Scholar; Fisher, E, Pascual, P and Wagner, W “Understanding environmental models in their legal and regulatory context” (2010) 22 Journal of Environmental Law 251CrossRefGoogle Scholar; Ogus, A “Nudging and rectifying: The use of fiscal instruments for regulatory purposes” (2006) Legal Studies 245Google Scholar; Macrory, R “Regulating in a risky environment” (2001) 54 Current Legal Problems 619CrossRefGoogle Scholar; and N Gunningham and D Sinclair “Designing smart regulation” (1998), available at: <http://www.oecd.org/environment/outreach/33947759.pdf> (last accessed 2 February 2020).

14 Elworthy and Holder Environmental Protection, above at note 11 at 299.

15 Bell, McGillivray and Pedersen Environmental Law, above at note 9. Lofton, JA “The impact of cultural values and attitudes on social regulation” (2001) Environmental Liability 167Google Scholar. Baldwin, Cave and Lodge Understanding Regulation, above at note 2 at 227–95. Ogus, A and Abbott, C “Sanctions for pollution: Do we have the right regime” (2002) 14/3Journal of Environmental Law 281CrossRefGoogle Scholar. E Couzens “Enforcement of environmental law: Good practices from Africa, Central Asia, ASEAN countries and China” (2014), available at: <https://wedocs.unep.org/bitstream/handle/20.500.11822/9968/enforcement-environmental-laws.pdf?sequence=1&isAllowed=y> (last accessed 2 February 2020).

16 Baldwin, Cave and Lodge Understanding Regulation, above at note 2 at 43–45 and 107.

17 Ayres, I and Braithwaite, JResponsive Regulation (1992, Oxford University Press)Google Scholar at 25. Baldwin, Cave and Lodge, id at 259.

18 Baldwin, Cave and Lodge, ibid.

19 Newig, J “Does public participation in environmental decisions lead to improved environmental quality? Towards an analytical framework” (2007) 1/1International Journal of Sustainability Communication 51Google Scholar, available at: <https://nbn-resolving.org/urn:nbn:de:0168-ssoar-431965> (last accessed 2 February 2020).

20 Maripe, B “Development and the balancing of interests in environmental law: The case of Botswana” in Faure, M and Plessis, W du (eds) The Balancing of Interests in Environmental Law in Africa (2011, ABC Press) 49Google Scholar at 63–66.

21 Ministry of Finance “National development plan”, above at note 1, para 7.15.

22 Cap 65:03. See sec 15.

23 Cap 65:06, sec 6 (l). See also art 10(2) of the Basel Convention, which is domesticated in sched 1 of the act.

24 Cap 38:03, sec 11.

25 Ministry of Finance “National development plan”, above at note 1, paras 7, 7.2.4, 7.51–52 and 7.68. Maripe “Development”, above at note 20 at 60. “Botswana”, above at note 12. O Koboto Reform of Environmental Laws in Botswana: The Need for an Environmental Framework Act (LLM thesis, 2010) at 34, available at: <https://etd.uwc.ac.za/bitstream/handle/11394/3052/Koboto_LLM_2010.pdf?sequence=1&isAllowed=y> (last accessed 2 February 2020).

26 Cap 38:04.

27 Statutory instrument 16 of 2016.

28 Statistics Botswana “Botswana environmental statistics 2016”, available at: <http://www.statsbots.org.bw/sites/default/files/publications/BOTSWANA%20ENVIRONMENT%20STATISTICS%20REPORT%202016......pdf> (last accessed 2 February 2020).

29 Cap 38:01.

30 See, however, Wiston “Commentary”, above at note 1 at 11. Maripe “Development”, above at note 20 at 58–59; and Ministry of Finance “National development plan”, above at note 1.

31 Cap 38:03, part III.

32 Id, sec 11.

33 Botswana tries to do so through annual wildlife censuses but it falls to the director's discretion how these are used to establish quotas. See: SEA Kabaija “Wildlife statistics 2004” (2005, Central Statistics Office), available at: <https://docplayer.net/55197814-Wildlife-statistics-2004.html#show_full_text> (last accessed 2 February 2020).

34 “Botswana”, above at note 12.

35 Environmental Assessment Act, sec 2 recognizes the department as a “competent authority”.

36 See Ministry of Finance “National development plan”, above at note 1, paras 7.72–73 (on chemicals and waste management) and 7.76 (on species management).

37 NM Moleele and T Ntsabane “Environmental issues and management in Botswana: Have the national conservation plans worked?” (2002, Organisation for Social Science Research in Eastern and Southern Africa) at 12–17.

38 Cap 40:04. See sec 12.

39 See sec 11.

40 Cap 32:02. See sec 39.

41 See for example: Fire Service Act, sec 12; and Wildlife Conservation and National Parks Act, sec 79.

42 See: Waste Management Act, sec 13; Environmental Assessment Act, sec 4; and Wildlife Conservation and National Parks Act, part VII.

43 See: Town and Country Planning Act cap 32:09, sec 11; Waste Management Act, sec 13(7); Mines and Minerals Act, secs 19 and 20; and Environmental Assessment Act, sec 11. Maripe “Development”, above at note 20 at 66.

44 See: Atmospheric Pollution (Prevention) Act, sec 4; Waste Management Act, sec 41; Mines and Minerals Act, sec 6; and Environmental Assessment Act, secs 3 and 4.

45 Also, see: Waste Management Act, sec 42; and Wildlife Conservation and National Parks Act, sec 23.

46 For example: Atmospheric Pollution (Prevention) Act, sec 16; and Waste Management Act, sec 44.

47 Botswana government “Estimated development expenditure by project, 2017–2018”, available at: <http://www.gov.bw/globalassets/amfdp/budget-speeches/2016/development1718.pdf> (last accessed 2 February 2020). Statistics Botswana “Botswana environment statistics”, above at note 28. Ministry of Finance and Economic Development “2018/2019 budget strategy paper” (August 2017), available at: <http://www.gov.bw/contentassets/1c5907f150d144fa81fef3f1cbb72b8d/2018-19_draft_budget_strategy_paper.pdf> (last accessed 2 February 2020).

48 Seanama Conservation Consultancy “Botswana national report for the United Nations Conference on Sustainable Development (Rio+20)” (July 2012) at 23, available at: <https://sustainabledevelopment.un.org/content/documents/1006National%20Report%20-%20Botswana.pdf> (last accessed 2 February 2020).

49 Dikgang and Visser “Behavioural response”, above at note 12. “Collecting a can for money is back” (10 June 2013) Sunday Standard Botswana, available at: <https://www.sundaystandard.info/collecting-a-can-for-money-is-back/> (last accessed 2 February 2020).

50 Government of Botswana “Community based natural resource management policy” (government paper 2 of 2007).

51 See id, part 3.2.3.

52 Bell, McGillivray and Pedersen Environmental Law, above at note 9; Cole and Grossman “When is command and control”, above at note 13; Fisher, Pascual and Wagner “Understanding environmental models”, above at note 13; Ogus “Nudging”, above at note 13; Gunningham and Sinclair “Designing smart regulation”, above at note 13; Macrory “Regulating in a risky environment”, above at note 13; Ministry of Finance “National development plan”, above at note 1, para 7.56; and G Hepburn Alternatives to Traditional Regulation (OECD report), available at: <https://www.oecd.org/gov/regulatory-policy/42245468.pdf> (last accessed 2 February 2020).

53 “Botswana”, above at note 12. MC Kalikawe “Botswana: Integrating biodiversity into the tourism sector” (paper presented at the UNEP international workshop on best practices and country case studies, Mexico City, 29–31 March 2001).

54 See sec 12.

55 See sec 79.

56 See part IIE.

57 See: Mines and Minerals Act, secs 84 and 42. Also see: Waste Management Act, secs 21 and 22; Wildlife Conservation and National Parks Act, sec 41; and Environmental Assessment Act, sec 15. Bell, McGillivray and Pedersen Environmental Law, above at note 9; Lofton “The impact of cultural values”, above at note 15.

58 Cap 66:01.

59 Maripe “Development”, above at note 20 at 62. “Botswana”, above at note 12.

60 There is no explicit environmental right in Botswana's Constitution (chap 1 of 1966). The public's rights are derived from other rights, such as the right to life, or from common law environmental rights such as those secured through the law of delict. Maripe “Development”, above at note 20 at 54–58. Koboto Reform of Environmental Laws, above at note 25 at 25.

61 See Environmental Assessment Act, secs 7, 10 and 11. Also see Environmental Assessment Regs 2012, sec 9.

62 See ibid.

63 Waste Management Act, sec 42.

64 Wildlife Conservation and National Parks Act, sec 42; Waste Management Act, sec 27; Fish Protection Regs, 2016, reg 15; Fombad, CM and Pfumorodze, JThe Law of Delict in Botswana (2019, Kluwer International)Google Scholar at 151.

65 Moleele and Ntsabane “Environmental issues”, above at note 37 at 12–13. Baldwin, Cave and Lodge Understanding Regulation, above at note 2 at 43–45 and 107. See SE Fink “Environmental law in a developing country: Botswana” (2000, LLM dissertation) at 5, available at: <http://uir.unisa.ac.za/bitstream/handle/10500/16784/dissertation_fink_se.pdf?sequence=1&isAllowed=y> (last accessed 2 February 2020).

66 See, for example, fire officers under the Fire Service Act, sec 4; wildlife officers under the Wildlife Conservation and National Parks Act; forest officers under the Forest Act, sec 2; and authorized officers under the Waste Management Act.

67 World Bank “Botswana: Enhancing environmental sustainability in the implementation of the NDP10 (draft policy note, October 2010)”, available at: <114https://www.car.org.bw/wp-content/uploads/2016/06/Botswana-Environment-Policy-Note-October2010-final.pdf> (last accessed 2 February 2020).

68 Baldwin, Cave and Lodge Understanding Regulation, above at note 2 at 43–45 and 107.

69 Koboto Reform of Environmental Laws, above at note 25 at 25. Maripe “Development”, above at note 20 at 63–66. Baldwin, Cave and Lodge Understanding Regulation, above at note 2 at 43–45 and 107.

70 World Bank “Botswana”, above at note 67.

71 Ministry of Finance “National development plan”, above at note 1, para 7.6.

72 See, Constitution of Botswana, sec 12(b), which allows the withholding of information held in confidence. See also the conditions attached to the disclosure of information under Atmospheric Pollution (Prevention) Act, sec 13.

73 Ministry of Finance “National development plan”, above at note 1, para 7.11.

74 Waste Management Act, sec 42.

75 Attorney General v Mwale (CACGB-096-14, CACGB-076-15) (2015) BWCA 1 (26 August 2015); Botswana National Front v Attorney General [1994] BLR 385; Attorney General v Unity Dow [1992] BLR 119; Tsogang Investments (Pty) Ltd v Phoenix Investments [1989] BLR 512.

76 Newig, J and Fritsch, O “Environmental governance: Participatory, multi-level-and effective?” (2009) 19/3Environmental Policy and Governance 197CrossRefGoogle Scholar at 200 and 205–06.

77 Ministry of Finance “National development plan”, above at note 1, paras 7.56 and 7.64.