Abstract
Environmental deterioration remains a concern in Botswana. Despite efforts being made to address this issue by the state, more needs to be done in this regard. This is particularly interesting in the light of reports that the country is looking to draft a new constitution. Against this backdrop, this article considers whether including environmental rights in Botswana’s constitution would advance environmental protection efforts. To this end, the article relies on experiences with rights drawn from different jurisdictions across the world, as well as commentary on these experiences, to build a tool for measuring the extent to which the turn to environmental rights holds value in a given jurisdiction. Using this tool, and drawing from experiences in looking to establish environmental rights in Botswana, the article measures the extent to which including the right in the constitution would hold value in advancing Botswana’s pursuit of environmental protection objectives.
Introduction
Environmental deterioration remains a concern in Botswana. To this end, there is continued land degradation, loss of biodiversity, the fragmentation of ecosystems, pollution coupled with poor waste management practices, illegal mining, unfriendly environmental construction practices and unsustainable extraction of natural resources. 1 Despite all the efforts being made to address these issues by the state, even by the state’s own admission, more needs to be done in this regard. 2 This is a particularly interesting concession in the light of reports that the country is looking to draft a new constitution. It is not unreasonable to consider then that consideration will be given to include a right to a clean environment in the new constitution.
Against this backdrop, the main objective of the article is to consider whether including environmental rights in Botswana’s constitution would advance environmental protection efforts. In order to do so, the article relies on experiences with environmental rights drawn from different jurisdictions across the world, as well as commentary on these experiences, to identify critical issues in environmental rights discourse. Based on these issues, it builds a tool which can be relied on to measure the extent to which the turn to environmental rights holds value in a given jurisdiction. Following this, the article relies on this tool to measure the extent to which the state and non-governmental organisations (NGOs) have made inroads into establishing environmental rights in Botswana as a useful way in which to advance the pursuit of environmental protection objectives in the country. The article concludes by considering the best way in which to advance environmental protection in the Botswana context as constitutional reform is contemplated.
Environmental rights
In order to determine whether the inclusion of environmental rights in Botswana’s constitution would advance environmental protection efforts, it is useful to begin by briefly exploring the greater rights discourse as a precursor to identifying what these rights are.
To this end, it is paramount to note that rights are generally regarded as falling into three categories or generations. The category of first-generation rights is comprised of civil and political rights. In addition to this, there is a category of second-generation rights, which includes socio-economic rights such as rights to health and education. The latter category has generally not inspired action. This is largely because they impose a burden on the state. Even Article 2 of the International Covenant on Economic Social and Cultural Rights makes provision of these rights conditional upon the availability of resources. In addition to the two categories of rights noted above, there has also developed, over time, a category of what have been called third-generation rights. These include the rights to self-determination, protection of minorities and development. 3
Importantly for the present purpose, environmental rights which are the focus of the discussion here fall in the broader body of second-generation rights. The term environmental rights refers in the one sense to the substantive right to a clean environment. This has been provided for in different terms by different states across the world. 4 Some states provide it as a right to a clean environment, while others record it as a right to a healthy environment. It has also been regarded as a people’s right under the African Charter. 5 Based on the fact that enjoying these rights depends on an ability to enforce them, it has long been accepted that the term environmental rights also includes procedural rights necessary to enjoy this right such as rights of access to information and access to justice. Without the procedural rights, the substantive right to a clean environment holds little value. Importantly, the turn to rights places a negative obligation on states to adopt laws and policy that infringe people’s environmental rights. On the other hand, the rights impose a positive obligation on states to protect people’s environmental rights. Effectively then, the reference to environmental rights as applied in this article is a reference to the combination of the substantive right to a clean environment and the procedural rights of access to information and access to justice which impose a negative obligation on the state to harm the environment or fail to address harm to the environment. It also incorporates the positive obligation on the state to ensure that people live in a clean environment and enjoy the benefits that the right to a clean environment bestows.
Based on the experiences in other jurisdictions, it is worth noting that the turn to a justiciable environmental right always promises to invigorate enforcement of environmental protection efforts.
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Perhaps the most interesting example of the impact of this turn to justiciable rights can be found in Europe where, despite the fact that the European Convention on Human Rights does not feature a dedicated right to a clean environment, it has been recognised, nonetheless, that people’s enjoyment of the benefits bestowed upon them by Convention rights may be directly affected by adverse environmental factors.
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To this end, toxic smells from a factory or rubbish tip might have a negative impact on the health of individuals. As such, public authorities may be obliged to take measures to ensure that human rights are not seriously affected by adverse environmental factors.
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elevates the entire spectrum of environmental issues to a place as a fundamental value of society, to a level equal to other rights and superior to ordinary legislation. In the absence of guaranteed environmental rights, constitutionally protected property rights may be given automatic priority instead of balanced against…and environmental concerns. Other rights may similarly be invoked to strike down environmental and health measures that are not themselves rights-based.
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Scepticism on environmental rights
As part of the broader body of socio-economic rights, it is not surprising that there has always been scepticism surrounding the body of environmental rights. While the existence of environmental rights is now well accepted, this has not always been the case. A generic international environmental entitlement was once regarded as a highly questionable proposition for at least three reasons. 13
First, it was considered that while there was a direct functional relationship between the protection of the environment and the promotion of human rights, conceptualising environmental protection as stemming from a generic and inalienable environmental right was unnecessary. This was because this would require rearranging socio-economic priorities and accommodating, or adjusting, public policy objectives in ways that could not be realised while simultaneously pursuing socio-economic development. 14 Alternatively, conceptualising the right as a generic and inalienable right was also considered unnecessary because the more established civil and political rights and even some socio-economic rights could not survive without an underlying right to a clean environment. 15 Separately, conceptualising the right as a generic and inalienable right was also considered unnecessary because environmental rights were created by statute laws of several states through national legislation protecting such environmental media as air and water. In addition, it was also considered that in several common law states, environmental rights were also provided for in terms of the common law through established concepts such as the law of delict and the law of nuisance, which bodies of law regulated conduct that infringed environmental rights. 16 Not only that, it was also considered that structures were already in place which allowed people, who would be the rights holders if the turn to environmental rights was made, to seek redress when their environmental rights were violated. 17
Second, the aversion to the turn to environmental rights was based on the idea that the rights-based approach could not yield the sort of environmental protection necessary to protect the environment because it was anthropocentric with rights bestowed on humans who mostly accrued the right to act once their rights were infringed. This was problematic because it meant rights were not really useful when harm occurred which humans were not aware of or were not moved to act on. 18 Alternatively, while the environmental rights of non-sentient beings have increasingly been recognised, the fact that environmental rights were traditionally bestowed on humans meant that these rights were not useful to the protection of aspects of the environment such as particular species which were of ‘no present and potential interest to humankind’. 19 Also, the rights approach was problematic because it was backward-looking and reactive to the occurrence of catastrophic events rather than preventative, a more preferable approach in environmental protection. 20
Third, it was argued that even if environmental rights were known and people were motivated to act upon the rights, it was difficult to conceptualise the right as a generic and inalienable right because reaping the benefits of doing so depended on citizens’ capacity to pursue redress based on these rights. 21 Because such capacity could not be assumed to exist, once the right was conceptualised as a generic and inalienable right, this needed to be accompanied by a real obligation on states to ensure people were capacitated to act in protection of the environment. 22 Asking this of states was not easy given their preoccupation with pursuing socio-economic development.
Acceptance of the human rights approach
Over time, it has become apparent, at both the international and national levels, that a rights-based approach to environmental protection would be useful to the pursuit of environmental protection objectives.
The international level
Over time, it became apparent at the global level that, as much as relying on statute law and common law to protect environmental rights seemingly made sense, environmental issues and problems were far-reaching, interconnected and best addressed holistically at the central level. And, because ‘human beings are at the centre of concerns for sustainable development, and…are entitled to a healthy and productive life in harmony with nature’,
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this meant that there was value in turning to the rights as part of a centralised regulatory framework which empowered people to participate in the regulation of environmental protection in a most direct way through exercising their rights.
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As a consequence, in 1972, when the world looked to transition towards a coherent holistic and centralised environmental protection regulatory framework during the Stockholm Conference, states recognised the nexus between human rights and the environment. Indeed, Principle 1 of the Stockholm Declaration provided, in part, that humanity had the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.
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Despite this, it was only in August 1994 that the UN adopted the final report on the study of Human Rights and the Environment. 26 This report recommended the recognition of a right to a healthy environment as a human right and the adoption of a draft declaration on human rights and the environment. It also marked the official beginning of a long and ongoing process of identifying, conceptualising and setting standards for a human right to environment. While this has not resulted in a global human rights treaty proclaiming a right to environment, several modern pieces of international law such as the African Charter on Human and Peoples’ Rights (African Charter) 27 and the Protocol on Economic, Social and Cultural Rights to the American Convention on Human Rights 28 incorporate a right to a clean environment. The form that these rights assume varies. 29 For instance, the European Court of Human Rights has highlighted that even though the European Convention on Human Rights may not carry a dedicated environmental right, the right to a clean environment is protected by the rights that are provided in the Convention. 30
Importantly, while there may be no consistency in how environmental rights are formulated at the international level, there is clear provision for, and protection of, an anthropocentric right to a clean environment which, simply stated, ensures that people live in clean or healthy environments that do not pose a threat to life or infringe upon privacy rights. 31
National perspective
At the national level, the turn to the formal recognition of environmental rights as part of national regulatory frameworks has largely been motivated by international developments. The turn to such rights has also been motivated by the realisation of the fact that, while the statute law and the common law applied in several states offer some protections to people where their environmental rights are violated, entrenching these rights in constitutions would offer better protection to people and the environment. This is based on the logic that turning to environmental rights can contribute to regulatory efforts and improve them by empowering people to enforce environmental protection laws directly without waiting on the traditional framework to address the offending conduct. This is because the rights would empower people to bring, or threaten to bring, litigation against anyone posing a threat to the environment. 32 In addition, constitutional rights create measurable positive obligations on the state to ensure that citizens exercise the rights and enjoy the benefits they bestow. The rights also mean that the state would be obliged to regulate environmental protection so that environmental rights cannot be violated. Therefore, the inclusion of environmental rights in the constitution would create measurable positive obligations on the state to ensure that citizens enjoyed the right to live in a clean environment. 33
Largely for these reasons, over 125 states across the world have incorporated the right in their constitutions. 34 Certainly, the form assumed by the rights differs, with some rights being people’s rights and protecting people as a collective. Other rights are couched as individual rights to a clean, sometimes framed as healthy, environment. 35 Importantly for the present purpose though, there is clear recognition across the regulatory frameworks in several states that environmental rights exist and it falls to the state to ensure that people live in a clean environment which does not pose a threat to life or infringe upon privacy rights.
The analytical framework
Following from these developments which have seen environmental rights established at the international in regional instruments such as the African Charter on Human and Peoples’ Rights (African Charter) 36 and the Protocol on Economic, Social and Cultural Rights to the American Convention on Human Rights 37 and in several national laws, it is now possible to draw from experience and design an analytical tool which can be relied on to measure the extent to which the turn to environmental rights holds value in a given jurisdiction, such as Botswana. In looking to formulate such tool, it is useful to be guided by the fact that experience drawn from years of recourse to environmental rights internationally and within states has established quite clearly that the turn to environmental rights only brings value where three conditions are satisfied.
First, a rights-based approach works best where rights holders have the capacity to exercise rights and enjoy the benefits these rights bestow on them. This depends on citizens being educated on their rights and how to exercise them. Indeed, in some cases, effective education might even motivate citizens to familiarise themselves with the state of the environment in which they live. As a result, the citizens would rely on their procedural rights to access information which may put them in a position to undertake action which might pre-empt the occurrence of environmental harm. Driesen has argued that public opinion has always driven environmental improvement, so dissemination of good and understandable information and opportunities to act on that information and formulate opinions are extremely important.
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However, environmental rights are not easily known to people. This is for several reasons. For instance, environmental protection often concerns itself with technical and scientific matters. As such, these matters may not be accessible to the average person. A person whose rights are prejudiced may, therefore, not understand this with the result that the person cannot exercise the right. In this context, the rights will not work. To this end, ensuring that people know about the rights and can use them is best done when states put in place institutional measures to ensure that the public are educated on the existence of environmental rights and the manner in which to exercise them so that they may derive the benefits these rights bestow.
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As McGrath appositely notes, albeit with reference to the value of educating people on public interest litigation, education is important because: Knowledge…is crucial for effective…litigation to protect the environment. The environmental legal system is often complex, convoluted and illogically structured with multiple legislative schemes and government administrators. Complex issues of law and fact commonly arise with which ordinary members of the community are unfamiliar.
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Second, even when people are educated on environmental rights it is important to consider that bringing, or threatening to bring, litigation as part of exercising any rights, including environmental rights, can be expensive. 42 Without the financial resources to bring litigation, it is difficult to bring, or threaten to bring, environmental rights-based litigation. In order to counteract this, it becomes important at the state level to remove all manner of barriers which could limit people’s exercise, and enjoyment, of their environmental rights, most notably, restrictive access to information. In addition, it is also important for the state to proactively ensure people get access to justice by putting in place institutional measures to assist litigants and potential litigants in bringing rights-based matters to court.
Third, because of the need to counteract the fact that where they are individualistic, rights can lead to an approach to environmental protection which is reactive and victim-centred, rights also need to be collective. 43 Being collective as the term is used here refers to environmental rights which are provided for in concert with a generous approach to legal standing which allows the rights to be exercised by an individual who forms part of a directly prejudiced group or does not or by a group acting collectively whether they are prejudiced or not, allowing individuals or groups to act in the public interest even without suffering direct harm. These rights are attainable through adopting a generous approach to legal standing which would allow any individual or group to act in furtherance of environmental protection objectives on his or her own behalf, the group’s behalf or in the public interest. Significantly, being collective means that the rights can be relied to work reactively and proactively, as needed, to protect the environment for present and future generations. 44
Botswana
Botswana’s constitution recognises a litany of civil and political rights, together with socio-economic rights. 45 Importantly, it does not provide for environmental rights. Despite this, there is some semblance of protection of environmental rights at law, albeit, indirectly.
For instance, while the constitution may not provide for environmental rights, other sources of law protect environmental rights indirectly. Indeed, there are various statues governing natural resources in Botswana such as the Wildlife Conservation and National Parks Act, 46 the Atmospheric Pollution (Prevention) Act 47 and the Water Act. 48 In addition, some provisions of the common law of delict and nuisance certainly protect environmental rights. The law found in these statutes and the common law can also be relied on to protect environmental rights directly and indirectly without recourse to traditional environmental rights.
In complement to this, courts have often interpreted civil and political rights such as those relating to life, 49 privacy, 50 information 51 and protection from deprivation of property 52 in an expansive manner with the effect that they protect environmental rights. The most notable example of this can be found in the Sesana case, wherein the court had an opportunity to extend the right to life to canvass environmental rights. 53 The applicants were part of an indigenous group (Basarwa) residing in the Central Kalahari Game Reserve (CKGR) since time-immemorial. They were predominantly surviving on hunting and gathering but received supplementary services from the government in the form of food rations, transportation for children to and from school and mobile health services. However, from 1997, the government began to implement a scheme encouraging the applicants to relocate from the CKGR to neighbouring settlements outside the Reserve. In April 2001, the government announced its intentions to terminate the provision of all services to the CKGR residents. The Director of the Department of Wildlife and National Parks also announced that he would be withdrawing all special game licences from CKGR residents which allowed them to hunt legally and would refuse to issue such licences in future. Their future access to the hunting grounds would, henceforth, only be sanctioned based on a permit system. It was following these developments that, in February 2000, the applicant filed an application challenging the government’s decision. Among the issues, a claim was that the government’s refusal to issue special game licenses to the Basarwa and/or the refusal to allow them to enter the CKGR, unless they were issued with such a permit, was unlawful and unconstitutional. The Court held that the refusal to issue special game licences to the Basarwa living in the CKGR was unlawful. Two of the judges found that the simultaneous stoppage of the supply of food rations and the issuing of special game licenses to be unconstitutional and was tantamount to condemning the remaining residents of the CKGR to death by starvation, resulting in a violation of the right to life set out in s. 4(1) of the Botswana Constitution. 54 Importantly, the court shied away from considering that the right to life incorporated environmental rights in the form of rights of access to natural resources and wildlife. They had the opportunity to consider that the enjoyment and protection of right to life is dependent on access to certain resources. The Basarwa community was principally depended on hunting of wildlife, and to access such a resource, authorisation was required. Therefore, the government, by virtue of refusing to grant such authorisation, was trampling upon the right to life of the appellants. Without the special game license, the government denied the appellant access to a crucial resource which sustained their lives. Despite this, the effect of the judgment was, still, to recognise that the environment in which people live, and their ability to live sustainably off that environment, plays a critical role in their enjoyment of the right to life.
A similar approach was adopted in the Mosetlhanyane case, an offshoot of the Sesana case, which dealt with the right to water in Botswana. The appellant was one of the applicants in Sesana case. 55 Following the relocation of Basarwa from the CKGR and the High Court decision that the government was not obliged to provide essential services to the Basarwa who opted to remain in the CKGR, government dismantled and sealed a borehole which the applicant had access to. It was uncontested that the appellant lacked access to water since the existing borehole had been dismantled. The absence of water had made them weak and pliable to sickness such as headaches, constipations and bouts of dizziness. 56 In short, the appellants were suffering, and the refusal by the government to use the existing borehole, which had been lying idle for several years, violated their constitutional right not to be subjected to inhuman or degrading treatment enshrined in s. 7 of the Constitution. 57 The applicant approached the High Court, seeking an order declaring that they had a right to abstract water without a permit by virtue of s. 6 of the Water Act. The High Court ruled against the applicant. Discontented with this decision, the applicants appealed to the Court of Appeal. Among other things, they sought an order declaring that the refusal or failure by the government to confirm that they had the right to sink a borehole or wells at their own expense in CKGR and use water therefrom for domestic purposes in accordance with s. 6 of the Water Act was unlawful and unconstitutional. 58 The court considered that the right contained in s. 7 was absolute and unqualified. The learned judge indicated that he would approach the matter ‘on the basis of the fundamental principle that, whether a person has been subjected to inhuman or degrading treatment, involves a value judgment’. 59 To that end, the judge made reference to United Nations Committee on Economic, Social and Cultural Rights Report on Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, para. 16(d), which emphasised on the need for States to ensure that indigenous people have access to water resources on their ancestral lands. 60 The court also considered United Nations Resolution A/RES/64/292 on the Human Right to Water and Sanitation. Ultimately, the Court found that the conditions to which the appellant were subjected violated the right not to be subjected to inhumane and degrading treatment. As with the court in the Sesana case, however, the court shied away from considering that the right to be protected from inhumane and degrading treatment encompassed environmental rights, and in this case, the right to live in a clean environment with clean water. 61 The effect of the judgment, however, as with that in the Sesana case, was to recognise in formal adjudication that enjoyment of entrenched civil and political rights would in some circumstances depend on access to clean water and thus on people living in a clean environment.
Importantly though, this creative approach to protecting environmental rights necessitated by the absence of a constitutionally entrenched right has expected weaknesses. In a most basic sense, a creative approach to interpreting statutes as protecting environmental rights in an indirect manner means that environmentally deleterious behaviour is not always seen as, itself, morally reprehensible in a manner that would facilitate greater environmental protection by people or the state. And, to the extent that there is reliance on courts to assert environmental rights, this approach makes it difficult for anyone whose environmental rights are adversely affected, or anyone who wishes to act in the public interest, to litigate to advance environmental protection objectives as it becomes difficult to show necessary standing to appear in court. Once matters make it to courts, the approach also means that litigation becomes a tedious and more expensive process with creative interpretation of statutes needed to secure protection of environmental rights. In addition, the successful protection of environmental rights using this creative approach depends on judges being adequately knowledgeable about environmental rights and their importance and on judges being willing in a given case to adopt a creative approach to the interpretation of civil and political rights entrenched in the constitution to ensure that environmental rights are protected.
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It certainly does not help that in Botswana, courts have shown a propensity to shy away from this creative approach. For instance, the Court of Appeal in the Dickson Tapela case noted that:
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sight must not be lost of the fact that constitutional rights do not extend in Botswana to socio-economic rights, such as the right to health, the right to shelter and the right to clean water. This is deliberate and is proportionate in view of the manpower and financial constraints experienced by developing countries. Any attempt by the courts to confer socio-economic rights…by the broad constructions of section (right to life)…would, in my judgement, be overstepping the bounds of judicial discretion. That would be venturing into policy areas and budgetary concerns which are properly to be addressed by other arms of the government.
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Knowledge of rights
Knowledge of environmental rights in Botswana is poor, most probably because, there has not ever been explicit provision of environmental rights in Botswana’s constitution. The closest the country has come to making provision for such rights was when it made the decision to ratify the African Charter which protects environmental rights in Article 24. However, the country is a dualist state. This means that the international law, and the environmental rights, has no direct application until it is given effect to in domestic law. Indeed, the court noted in Attorney General v Unity Dow 65 that until they are given effect to, international conventions are merely aids to be used by the courts in interpreting the law in instances of ambiguity in the domestic laws. This is in line with the provisions of the Interpretation Act which provides that international conventions and treaties as far as they have not been incorporated into domestic law may be used as an aid to construction of the constitution and of statutes. 66 Where it is possible to do so without doing violence to the language used, an interpretation consonant with Botswana’s international obligations subscribed to in conventions with other states should prevail. 67 Following from this, environmental rights stemming from the African Charter have not been domesticated. And so, while the rights may be known to courts, it is difficult to accept that they will generally be known to lay people merely.
In complement to this, while it is not unreasonable to consider that the provision for environmental rights, under the statute law and the common law, could have built knowledge around environmental rights, the reality is that the state has not looked to educate people on environmental rights. Consequently, it is only those who are skilled in interpretation that can be assumed to have capacity to infer the existence of the rights from available sources of law. The general public simply does not have the sort of knowledge about the rights which would meet the threshold of knowledge required to make the turn to the right valuable based on the idea that value is realised when everyone knows the right and everyone understands how to use the right to bring, or threaten to bring, litigation in protection of the right and the environment.
State support
Litigation is quite expensive in Botswana. As such, an important state supportive function generally is litigation support. This is particularly true when people look to litigate in environmental matters which very often deal with issues in which the public has an interest. Importantly, such support is possible in two ways.
First, state support is attained when the state removes all manner of barriers which could limit people’s exercise, and enjoyment, of their environmental rights most notably, through limiting restrictive access to information. Here, it is noteworthy that in Botswana, the state has not looked to encourage litigation by making access to information easier. Indeed. while the constitution guarantees the freedom to receive ideas and information and the freedom to communicate ideas and information without interference, whether to the general public or individuals, 68 it falls short in indicating whether this right also entails an obligation on the state to provide information. In this context then, there is no real access to the sort of environmental information in Botswana law that is needed in order for the right to a clean environment to be exercised effectively. Importantly though, there are references to the idea of transmitting information to parties who might be affected by any decision-making. For instance, the Environmental Assessment Act 69 mandates the publication of an environmental impact assessment statement on proposed developments. The publication has to run for four consecutive weeks, inviting comments or objections from those persons most likely to be affected by the proposed activity and other interested persons. 70 However, the drawback is that transmission of information only occurs in restricted circumstances, that is, when there is a proposed development or proposed legislation. Of note, dissemination of environmental information outside these circumstances is not provided at law. Separately, s. 85 of the Mines and Minerals Act 71 has long imposed a duty on the Minister to maintain records of all mineral concessions issued under the Act and ensure that these are open to inspection by members of the public, who will be permitted to take copies thereof, during normal Government office hours. However, there is nothing done to empower the public to seek and receive information at a reasonable cost. It is quite telling that one of the ways in which information may be disclosed is as part of court proceedings and even that may not yield information in an accessible or comprehensible form. By the same token, the state has not looked to encourage litigation by making access to justice easier. This is because the state has not looked to adopt a generous position on legal standing, generally. If anything, the restrictive approach to standing is a significant barrier to access to justice in Botswana.
Second, litigation support occurs where the state proactively puts in place institutional measures to assist litigants, and potential litigants, in bringing rights-based matters to court and in realising their access to justice right. Importantly though, it is clear, in Botswana, that the state is not looking to assist litigants through tools to encourage litigants to realise their access to justice right. This is apparent from the fact that there are several tools that could be adopted to assist litigants, and potential litigants, in bringing rights-based matters to court and in realising their access to justice right, but are not. An example would be statutorily prescribed payment tariffs for actions brought in the public interest and similar techniques which would ensure that costs are not prohibitive. The best that Botswana has done has been putting in place the legal aid system. However, that system is fraught with deficiencies which compromise this avenue’s value as a tool for encouraging access to court. The key problem is quality representation. 72 Further, considering the fact that legal aid staff is often overburdened with work, it is not reasonable to expect them to be as conversant in the knowledge of such specialist areas as environmental law.
Individual and collective rights
As argued above, there is value in adopting a liberal approach to standing with respect to environmental rights as this would allow individual and collective action in protection of rights. Importantly, Botswana law does not adopt such a liberal approach to standing generally and this is apparent in two ways.
First, the judiciary in Botswana appears to have flirted with the idea of a liberal approach to standing. 73 This can be inferred from the Court of Appeal’s approach to legal standing in the 1989 Tsogang Investments (Pty) Ltd v Phoenix Investments (Pty) Ltd case, where it was held that it was not only the applicant for a licence or any objector before the licensing authority who could appeal a decision but anyone who had a right which might be infringed by a wrong decision of the licensing authority. This turn to a seemingly liberal approach to legal standing can also be inferred from the approach adopted by the same Court of Appeal in the 1992 Attorney General v Unity Dow 74 case, where the respondent applied for an order declaring s. 4 of the Citizenship Act ultra vires the Constitution because it precluded female citizens from passing citizenship to their children with the result that her two children were aliens in her own land and the land of their birth. The court accepted the argument that she had standing because the respondent had substantiated her allegation that the Citizenship Act circumscribed her freedom of movement given by s. 14 of the Constitution. Importantly, the court accepted her argument that she had legal standing to bring the matter because, as a mother of young children, her movements were determined by what happened to her children. If her children were liable to be barred from entry into or thrown out of her own native country as aliens, her right to live in Botswana would be limited because she would have to follow them. Since then, however, the Judiciary has gravitated towards a more restrictive approach to standing. Perhaps this is best exemplified in the 1994 Botswana National Front v The Attorney General 75 case where the nation’s High Court, despite being an inferior court to the Court of Appeal, relied on the law to deviate from the seemingly liberal approach to standing adopted in Tsogang Investments and Unity Dow and instead, reaffirmed the general rule, which still stands to this day, that ‘everyone has a right to be heard in his or her own cause and no one, save a qualified practitioner, has a right to be heard in the cause of another’. The court also noted that this rule was qualified by the principle that an individual has no status or standing to challenge the validity of anything done under an Act of Parliament unless she or he is specially affected or exceptionally prejudiced by such action. Based on this position, the court accepted the standing of the Botswana National Front Party to bring an action seeking an order declaring the election roll null and void based on the fact that it had a vested interest in the smooth running and the proper administration and application of the Constitution and the Electoral Act and related legislation. So, the party was specially and directly affected by the electoral process and as such had standing to the Constitution, the Electoral Act and all other legislative enactments which would impact the electoral process. The court also denied standing to respondents who wished to be allowed to vote despite being outside the country on the basis of the fact that they had not established that they had been personally, specifically adversely affected over and above other members of the Botswana community in order to warrant the court affording them standing. Essentially, Botswana does not have a liberal approach to standing. 76
Second, Botswana’s reticence to accept the exercise of collective rights is apparent in two ways. First, class actions are frowned upon in Botswana law. In principle, class actions are permitted in terms of Order 16 rule 8 of the Rules of the High Court. This Order provide that: where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the court to defend such cause or matter on behalf of or for the benefit of all persons so interested.
The role of environmental NGOs
NGOs are organisations which are not part of government though they could be funded by the government. Importantly in environmental protection, and with respect to environmental rights, the primary objective of these organisations is public service. 81 Across most states, NGOs are the champions of environmental rights for several reasons.
Most notably, NGOs often play a primary role in raising awareness to pertinent environmental protection issues and environmental rights issues by supporting particular ‘test cases’ through relevant courts, offering direct assistance to those whose rights have been violated. 82 Unfortunately, the extent to which they do so depends on the regulatory framework in a given state. However, regardless of that, even in states which do not allow them to be proactive through the courts, NGOs still remain influential in raising awareness to pertinent environmental protection issues and environmental rights issues by lobbying for changes to national, regional or international law, helping to develop the substance of those laws and promoting knowledge of, and respect for, environmental rights among the population. 83
Importantly, for the present purpose, the regulatory framework in Botswana, particularly the extensive restrictions on locus standi noted above, is such that NGOs cannot litigate for the protection of environmental rights through public interest litigation. However, they can still support ‘test cases’ through the courts where there is a motivated and directly affected litigant. The restrictions on access to court have compromised these organisations’ capacity to do that. Despite this hurdle insofar as that function is concerned, however, NGOs still remain invaluable. This is largely because, in response to the long-standing need for environmental awareness in Botswana, 84 which partly accounts for people’s lack of insistence on a more liberal approach to locus standi, they have worked tirelessly to raise relevant awareness. To this end, NGOs like Kalahari Conservation Society, the Forest Association of Botswana and the Botswana Society have been involved in natural resource conversation and utilisation as well public awareness on environmental issues. They also provide fora for discussion on environmental issues.
These efforts have proven to be valuable in advancing the environmental protection cause and in ensuring that environmental rights of individuals and communities are taken into account at the policymaking level. Most notably perhaps, these efforts played a pivotal role in the turn to the Community Based Natural Resource Management Policy 85 which advanced environmental protection efforts and the protection of environmental rights by recognising that members of communities share an interest in improving their livelihoods through sustainable management and equitable utilisation of natural resources in their environs. This placed an obligation, albeit in policy which is non-binding, to account for people’s environmental rights in decision-making. The Policy also raised communities’ awareness of their rights and, by sensitising them to the potential to benefit from sustainable utilisation of the environment, motivated them to protect the environment. 86 This turn to Community Based Natural Resource Management is continuing, and trending in a positive direction, as there are ongoing efforts to formulate and promulgate Community Based Natural Resources Management legislation.
And so, NGOs have played a not insignificant role in raising people’s awareness about environmental protection and their rights. Importantly, for the present purpose, however, their inability to acquire standing to adjudicate on the basis of environmental protection and the protection of environmental rights over the years serves as a reminder of the lack of political willpower to recognise the validity of environmental rights in Botswana. And even their successes, headlined by their role in the progression to the Community Based Natural Resource Management Policy, which in itself is not binding and can be overturned by the state, 87 simply reaffirms the lack of political will to recognise the validity of environmental rights in Botswana.
Conclusion
There is talk of a new constitution in Botswana. It is likely that when the process commences, there will be some consideration of the inclusion of environmental rights. Drawing on experience with these rights, this article formulated a test to measure the extent to which including such rights in the constitution would enhance environmental protection efforts in the country.
There is certainly value in incorporating environmental rights in any constitution that emerges. However, experience with these rights in Botswana to this point highlights that the conditions necessary for these rights to hold value do not subsist in Botswana. An essential part of incorporating these rights into a constitution, therefore, is building knowledge about the rights, enhancing state support for those looking to exercise these rights, and efforts to ensure that the rights can be exercised collectively. Only where this is done, will incorporating rights in a constitution be worthwhile.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
