3. Environmental laws in Botswana
3.2 The need for constitutional right to environment in Botswana
3.3.1 The Lesetedi Commission 28
3.3.2 Sesana and others v Attorney-General of Botswana 29 3.3.2.1 Applicability of relevant environmental legislation 29
3.3.2.2 Policy formulation 30
3.3.2.3 Public participation 31
3.3.2.4 Conflict resolution 31
3.4 Institutional arrangements 32
3.4.1 Government departments 32
3.4.1.1 Department of Environmental Affairs 32
3.4.1.2 Department of Mining 33
3.4.2 Environmental Affairs Council 34
3.4.3 The Environmental Ombudsman 34
3.5 Conclusion 35
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3.1 Introduction
Botswana, formerly the British Protectorate of Bechuanaland, was declared a British Protectorate in March 1885.120 After the discovery of gold in 1867, the Transvaal government, which was a Boer republic, was opposed to the British colony and sought to annex parts of Bechuanaland despite the fact that Britain forbade annexation.121
The origin of environmental laws in Botswana can be traced back to the founding of the Bechuanaland Protectorate.122 In 1891, the law of the Cape Colony was introduced into the Protectorate of Bechuanaland and applied to Europeans and British subjects only. Roman-Dutch law as influenced by English law is the common law of Botswana. This common law is subsisting side by side with the legislation, judicial decisions and customary law123 as a source of law.124
At independence, Botswana inherited the colonial environmental management system which was unsystematic and disorganized125 and it did not modify the system to provide for a more integrated approach to achieve effective environmental governance.126
The Constitution of Botswana was drafted by graduates from British schools and consequently modeled against the colonial governance.127 The Constitution however remains the supreme law of the land and any legislation inconsistent with it is invalid.128
The environmental management system in Botswana is therefore not integrated and does not promote cooperative environmental governance necessary for the achievement of principle of sustainable development.
This chapter briefly investigates the Constitutional environmental protection in Botswana and how the present environmental management system facilitates for the achievement of environmental principles.
Furthermore, this chapter discusses the relationship between the constitution and the environment with the view to defining how EFL furthers the constitutional commitment to environmental protection.
120After urging by Khama III, a chief of the Tswana nation for protection, a protectorate was then established. See
Lubabalo. Botswana's Legal System and Legal Research (2006) at 1.
http://www.nyulawglobal.org/globalex/Botswana.htm (accessed on 17August 2009 at 12.00).
121http://www.nyulawglobal.org/globalex/Botswana.htm (accessed on 17 August 2009 at 12.00).
122The common law in force in the Cape of Good Hope (now South Africa) was the Roman-Dutch law as received
from Holland and developed by the Colony's superior courts.
123Customary law is only applied to tribesmen of Botswana.
124http://www.nyulawglobal.org/globalex/Botswana.htm (accessed on 17 August 2009 at 1200). 125http://www.emeraldinsight.com (accessed on 17August 2009 at 12.00).
126http://www.cato.org/pubs/journal (accessed on 17August 2009 at 11.50). 127http://www.cato.org/pubs/journal (accessed on 17 August 2009 at 11.50). 128See the Constitution of Botswana Chapter 1.
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The leading case of Sesana and others129 dealt with the formulation and implementation of environmental policy. This case will also be discussed, outlining the relevant considerations necessary for this research.
The Lesetedi Commission130 addressed land issues. The commission recommended a framework structure for regulation of land issues. The commission will be briefly discussed with the view to incorporating its recommendations into the proposed framework legislation that will also affect land use as a natural resource.
The chapter is aimed at proposing the adoption of EFL in Botswana for the integration, management and implementation of environmental instruments.
3.2 The need for constitutional right to environment in Botswana
The Constitution of the Republic of Botswana131 does not make provision for a right to a healthy environment. The Constitution should include the right to a healthy environment as a fundamental human right132 which requires necessary measures to be put in place to facilitate for the enjoyment of the right. Such measures will ensure that environmental considerations are accorded respect and recognition in the country.133 In modern constitutional dispensation, the Constitution embodies the fundamental rights.134 It is the supreme law of the land and all laws of the state are tested against it.135
Currently, protection to the environment in Botswana is incidental to other fundamental rights in the constitution.136 This raises a question as to the recognition of the importance of the environmental protection and management in Botswana, particularly to the achievement of the principle of sustainable use and development of natural resources.
There is therefore a need to incorporate the right to environment as a fundamental human right into the constitution of Botswana in order to accord it more protection and enforcement. The
129Infra 3.3.2. 130Infra 3.3.1. 131Chapter 1 of 1966.
132Rautenbach, I.M. and E.F.J.Malherbe. Constitutional law of South Africa (1999) at 322.
133Director: Mineral Development, Gauteng Region and Sasol Mining Pty ltd v Save the Vaal Environment and
others 1999 (2) SA 709 (SCA) at 719.
134The enforceability of the environmental right was echoed by Weeramantry J who opined that the protection of the
environment is a vital part of contemporary human right doctrine. It is a sine qua non for other rights such as the right to health and right to life. See Gabcikovo-Nagymaros Project case at 24.
135Director: Mineral Development, Gauteng Region and Sasol Mining Pty Ltd v Save the Vaal Environment and
others 1999 (2) SA 709 (SCA) at 751. See also Sesana and others v Attorney-General 2006 (2) BLR at page 751.
136In Sesana and others v Attorney-General, the court used the right to freedom of movement to give effect to the
various environmental legislation. Section 14(3) states that:
‘Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in
contravention of this section to the extent that the law in question makes provision for the imposition of restrictions that are reasonably required in the interest of defense, public safety, public order, public morality or public health or the imposition of restrictions on the acquisition or use by any person of land or other property in Botswana and except so far as that provision or, as the case may be, the thing done under the authority thereof, is shown not to be reasonably justifiable in a democratic society.’
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need for constitutional amendment to include the right to environment was lamented by the Attorney-General of Botswana137 when advocating for constitutional review. Her views were also conceded by Dingake J. who also observed that:
‘there is rule of law in Botswana but many improvements can be done to improve access to justice in the country…there is need for the civil society to be rights conscious and that societal values need to be embedded in the constitution.’138
The advantage of inclusion of the right to a healthy environment in the constitution is that the right is a distributional, conflict-resolving mechanism, as it elevates the environmental right to the same level as other fundamental rights and freedoms.139 It brings the protection of environment directly within the ambit of the interpretation of the contents of other fundamental rights.140 It also result in a shift in emphasis in that these rights and freedoms may only be limited in terms of the law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society.141
The Constitution reflects a right-based approach to allow all law and administrative conduct to recognise and promote individual rights and freedoms as fundamental human rights including environmental right.142
Constitutional entrenchment of right to a healthy environment in the form of a human right serves as a basic condition for human existence which must be protected.143 The failure to protect the environment results in degradation of natural resources which may threaten not only the health, livelihoods and lives of humans, but our continued existence which is dependent on the environmental media.144 The creation of a constitutional right to the environment promotes an integrated approach to environmental management and governance.145
The right to a healthy environment should not stand in isolation. The state must enact legislation that sets into motion the environmental constitutional provisions. The government has a duty to adopt appropriate laws and utilize these laws to regulate the effects of human activities on the environment for proper governance and management.146 Proper governance and administration
137Dr. Athalia Molokomme observed that:
‘Botswana has made strides in upholding democratic principles but there are a need for a constitutional review to enhance the protection of fundamental human rights.’
See Botswana Daily News, Thursday May 8, 2008 No. 86 at 1.
138Daily news op cit n132 at 24. 139Van Reenen op cit n95 at 281. 140Van Reenen op cit n95 at 281.
141S 36 of the Constitution of South Africa provides that the limitation of a constitutional right should be based on
human dignity, equality and freedom and should also take into account all relevant factors that may render the limitation justifiable. See also Strydom &King op cit n69 at 224.
142Rautenbach & Malherbe op cit n132 at 224.
143Feris L. Constitutional Environmental Right: An underutilized resource (2007) at 7 available at
http://www.saifac.org.za/docs (accessed on 8 September 2009 at 13.04).
144Feris op cit n143 at 7. 145Feris op cit n143 at 7.
146Kotze & De La Harpe op cit n80 at 6.
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requires a sound integrated legal framework which mandates sustainable environmental governance efforts.147
EFL facilitates cooperative environmental governance by establishing principles for decision making.148 It provides for the establishment of institutions for promotion of cooperative governance,149 and procedures for coordinating environmental functions by organs of state as well as administration mechanisms to champion the environmental cause.150
Such legislation serves as a framework under which other sectoral environmental legislation is embedded151 and helps in the implementation of the right to a healthy environment entrenched in the constitution.
The framework legislation ensures that environmental legislation is enforceable through the creation of enforcement mechanisms. The mechanisms are fashioned to monitor cooperative governance, issue compliance orders through prescribed procedures, and arrest and punish offenders.152
The Botswana government should include the right to a healthy environment in the Constitution and further adopt EFL to advance the commitment to the promotion of environmental protection and management.