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I. Introduction

The importance of wildlife protection in Botswana cannot be overstated.  The success of the tourism industry in the country rests heavily on its wildlife.[1]  The country’s wildlife estate makes up more than one-third of its landmass, with its national parks and game reserves comprising 17% of the estate and its wildlife management area encompassing over 20%.[2]  Okavango Delta, which is the largest inland wetland habitat in the world, is said to be the biggest draw for tourists that visit the country.[3]  About 90% of all visitors of the country come for “a wildlife and wilderness-based vacation” and revenue from tourism accounts for 12% of the country’s gross domestic product.[4]

Various policy documents and laws affect wildlife issues in Botswana.  Among these are the Tribal Grazing Lands Policy of 1975; the Wildlife Conservation Policy of 1986,[5] which is currently under review; the Tourism Policy of 1990; the National Conservation Strategy of 1990; and the Tourism Act of 1992.[6]  However, the principal legislation governing wildlife resources and their habitat, including hunting issues, is the Wildlife Conservation and National Parks Act of 1992 (WCNPA)[7] and its subsidiary legislation.[8]  Among other things, this legislation implements the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)[9] and incorporates the text of the Convention including “any Appendices and any Resolutions of the Conference of the Parties.”[10]

Although allowed in limited instances, hunting in Botswana is heavily regulated.  The country allows hunting, including commercial hunting, in what are known as controlled areas and on private land.[11]  It also allows hunting of “partially protected animals.”[12] Hunting protected game animals[13] is limited to specific purposes including disease control, public safety, or other public functions such as education, scientific research, or obtaining a specimen for a museum.[14]  However, most hunting requires a permit or license.  In addition, there are various prohibitions including on hunting protected game animals, hunting in prohibited areas, hunting or capturing game animals at night or by using blinding lights, hunting during the closed season, and hunting using certain prohibited methods.[15] 

News sources indicate that Botswana will impose further limits on hunting in the near future.  Citing concerns about declining wildlife species, authorities recently announced that they will ban commercial hunting from January 2014.[16]  According to a statement released by the government, commercial hunting of wildlife in “public or controlled hunting areas” will be indefinitely suspended.[17]  This will affect currently active hunting concessions including in northern Okavango Delta and the parks in the Kalahari region.[18]

The WCNPA also heavily regulates trade in animals, trophies, meat, and articles made out of trophies.  It does this by imposing licensing and permit requirements for dealing in, importing/exporting, or transporting through Botswana any animal, trophy, meat, or eggs.[19] 

Violations of the provisions of the WCNPA are heavily penalized.  Penalties involve a combination of fines and prison terms.  In addition, the fruits of a crime as well as the items used in its commission may be subject to forfeiture.[20]  Significantly, the WCNPA imposes evidentiary and procedural burdens on persons suspected of violating its provisions that are not typically part of criminal legal regimes.  One example in this regard is the legal presumption that a person who enters private land with a weapon is there to hunt illegally unless he can prove otherwise or prove that he had the owner’s permission.[21]

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II. Poaching and Trafficking in Wildlife

A.  Hunting in Certain Places

While it is legal to hunt in places designated as controlled hunting areas, doing so without a license is an offense.[22]  There are few exceptions.  Botswana citizens who principally depend on hunting for food and who have been issued special waivers to hunt animals other than game animals do not need a license.[23]  Similarly, those who have been granted permits to kill or capture any animal for certain specific purposes such as education or scientific research may hunt in controlled areas without a license.[24]  Finally, those who have been granted a permit to kill animals other than protected game animals for the purpose of disease control, public safety, or property protection do not need a license to hunt in controlled areas.[25]  Hunting any animal in a controlled area without a license or in violation of the terms of a license is punishable by 2,000 Botswana Pula (P) (about US$256) and two years’ imprisonment in addition to any other applicable penalties.[26]

Similarly, hunting is allowed on private land under the concept of “landholder’s privileges,” which applies to landowners, lessees, and the employees or relations of such landowners/lessees, all of whom must be citizens or residents of Botswana.[27]  Private land may also be utilized for commercial hunting, known as the use of landholder’s privileges for profit.[28]  While hunting of protected and partially protected animals by those with landholder’s privileges may be undertaken without a license, those authorized to use landholder’s privileges for profit must hold a license or permit, and it is the landholder’s responsibility to ensure that authorized hunters are in possession of the requisite licenses or permits.[29]  In both cases, a landholder is required to keep records of the hunters and all animals killed.[30]  In addition, in both cases, the law imposes a limit as to how many game animals may be killed each year on private land.  For instance, a maximum of ten zebras a year may be killed on private land; a violation of this requirement is an offense punishable by P500 (about US$64) and a six-month prison term unless a penalty is already provided under a different provision.[31] 

B.  Hunting of Certain Animals

In addition to geographic limitations on hunting, the WCNPA imposes a ban on the hunting of certain of animals.  Hunting of any animal in Botswana requires a license or a permit with two exceptions: anyone may hunt a non-designated invertebrate animal without a license outside of a national park or a game reserve, and any Botswana citizen may hunt without a license any non-designated animal for consumption.[32] 

Hunting of partially protected game animals, designated game animals, or game birds without a license is an offense for which the WCNPA imposes different penalties depending on the gravity of the offense.  Hunting any game animal partially protected throughout Botswana (leopard, lion, elephant, chobe bushbuck, sable antelope, and eland) without a license is an offense punishable by a fine of P5,000 (about US$638) and five years’ imprisonment.[33]  If the animal in question is an elephant, a dramatically higher penalty of P50,000 (about US$ 6,375) in fines and a ten-year prison term are applicable.[34]  Hunting of a designated game animal (including baboon, caracal, wildcat, and zebra) without a license is also an offense punishable by a fine of P2,000 (about US$255) and two years in prison.[35]  In addition, hunting a designated game bird (such as spur-wing goose, Egyptian goose, whitefaced duck, and snipe) without a license is an offense punishable by P1,000 (about US$128) in fines and a one-year prison term.[36]  If the offense involves non-designated animals or a violation of the terms of a license, the penalties are relatively mild—a fine of P500 and six months’ imprisonment.[37]

Hunting of protected game animals (including cheetah, wild dog, otter, rhinoceros, all pelicans, and all flamingos) is prohibited.[38]  There are a few exceptions to this rule: such hunting may be permitted if it is for certain particular uses such as education and scientific research, or for the purpose of disease control, public safety, or protection of property.[39]  Two classes of penalties are applicable for violations of this ban.  The general penalty imposed for an offense under this provision is a fine of P10,000 (about US$1,275) and seven years’ imprisonment.[40]  If the offense involves a rhinoceros the applicable penalties are dramatically higher—a fine of P100,000 (about US$12,750) and fifteen years’ imprisonment.[41]

There are further exceptions applicable to bans on hunting of any animal, including instances in which hunting is permitted to protect property, for self-defense, or for the defense of others.  An owner or occupier of land or his agent may “kill any animal which caused, is causing or threatens to cause damage to any livestock, crops, water installation or fence of such land.”[42]  However, this does not apply to cheetahs[43] or lions (although in certain specific instances killing a lion may be allowed),[44] or to animals in a national park or game reserve,[45] and the exception does not authorize the use of “any poisoned weapon, pitfall or snare for the killing of any animal.”[46]  The law authorizes killing or wounding any animal in self-defense or in defense of others if it is “immediately and absolutely necessary.”[47]  If a person who does not have a license kills a game animal in self-defense or in defense of others, the person is required to report the killing and deliver the trophy to a wildlife officer or police station.  Failure to do so is an offense punishable by a fine of P500 and six months’ imprisonment.[48]

C.  Hunting Methods

The WCNPA prohibits various hunting methods that give hunters undue advantage over their prey.  Unless otherwise authorized, it prohibits hunting at night,[49] the use of blinding lights to hunt, and hunting during closed seasons.[50]  A violation of any of these bans is an offense punishable by a fine of P5,000 and a five-year prison term in addition to penalties that may be imposed for violations of other provisions of the law.[51]  Other generally prohibited methods include

  • shooting at a game animal from any vehicle, aircraft, or mechanically propelled vessel;
  • getting closer than 200 meters to any animal for the purpose of hunting the animal;
  • surrounding an animal with fire or causing any grass or bush fire for the purpose of hunting; or
  • use of a weapon other than a hunting rifle, a shot gun, or a dog.[52]

There are certain exceptions to some of these bans, the most typical being the use of a prohibited method when the hunting involves an animal causing damage to property or is in self-defense.  A violation of any of the above bans is an offense punishable by a fine of P5,000 and five years’ imprisonment.[53]

D.  Attempt and Other Offenses

A person does not have to engage in illegal hunting in order to commit an offense under the WCNPA; certain acts that indicate that a person plans to engage in poaching are also banned.  For instance, a person who enters private land without the permission of the owner for the purpose of hunting commits an offense punishable by a fine of P1,000 (about US$128) and one year in prison.[54]  In this case, the controlling law shifts the burden of proof to the accused by making a presumption that a person found on any land in possession of a weapon is deemed to be in violation of the law unless he can prove otherwise or prove that he had the owner’s consent.[55]  Similarly, in certain circumstances the law makes conveyance of a loaded weapon other than a pistol, including while traveling along a road to which there is public access, an offense punishable by a fine of P1,000 and a one-year prison term.[56]

E.  Sale, Export, and Import Restrictions

The WCNPA bans the import to, export from, transport through, or re-export from Botswana of any “animal, or trophy, meat or eggs” without a permit.[57]  A violation of this provision is an offense and entails a penalty of P10,000 in fines and a seven-year prison term.[58]  The law also prohibits selling or otherwise dealing in, or manufacturing any articles from, any trophy illegally obtained in or imported into Botswana.[59]  A violation of this provision is an offense punishable by a fine of P5,000 and five years’ imprisonment.[60] 

When an elephant or rhinoceros is involved, the applicable penalty is significantly higher.  If the commission of an offense involves an elephant or its trophy the penalty is a fine of P50,000 and ten years’ imprisonment.[61]  If the offense involves a rhinoceros the penalty is P100,000 in fines and a ten-year prison term.[62]

The WCNPA also makes selling “any game animal or “non-designated animal,”[63] or “meat, eggs or trophy of any animal” without a proper permit an offense punishable by P1,000 in fines and a one-year prison term.[64]  It establishes a presumption that any animal or animal product found in any business establishment and for which there is no permit is intended for an illegal sale.[65]

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III. Penalties of General Application

The above sections discussing wildlife protection offenses also outline the penalties associated with each offense.  In addition to these penalties, the controlling law imposes forfeiture penalties applicable to all such offenses, including forfeiture of the fruits of an offense and the tools used to commit it.  Therefore, any animal killed in violation of any provision of the controlling law and any trophy or part of such animal is automatically forfeited to the government.[66]  Similarly, if any violation of a provision of the law involves a trophy, the trophy is forfeited to the government.[67]

In certain instances the tools used in the commission of an offense are also subject to forfeiture.  Whenever a person is convicted of an offense punishable by a fine of P2,000 or more, the court is required by law to order the forfeiture to the government of any tools used in the commission of the offense, including a weapon, trap, or vehicle.[68]  In all other lesser offenses, the court has the discretion to order forfeiture of such tools.[69]

In addition to fines, prison terms, and forfeiture, all offenses punishable by a fine of at least P1,000 automatically trigger the revocation of the offender’s license, permit, authority, or permission issued under the WCNPA unless the court says otherwise.[70]

Finally, recidivism in relation to any offense under the WNCPA triggers significantly higher sentences.  A second or subsequent conviction under any of the provisions of the controlling law automatically triggers a higher penalty in which “the maximum penalty prescribed for such offense shall be increased by fifty percent.”[71]

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IV. Enforcement Authority

The Department of Wildlife and National Parks (DWNP), one of several departments at the Ministry of Environment, Wildlife and Tourism, enjoys wide-ranging powers to enforce the WCNPA through its wildlife officers, including the Director of the Department, any other public officer of the Department charged with the implementation and administration of the provisions of the controlling law, and honorary officers to the extent of their authorization to act on behalf of the Department.[72]  While the DWNP is the principal enforcer of the WCNPA, it is not the only enforcer.  The Botswana Police Service also has some enforcement powers.[73]  In addition, the Botswana Defense Force (BDF) has since 1987 played an increasingly prominent role in antipoaching operations in support of the DWNP and the police.[74]

Wildlife and police officers have broad enforcement powers and are authorized to conduct warrantless searches and seizures if they have reasonable grounds to believe that a person has violated the WCNPA.[75]  For instance, a wildlife or police officer may “stop, seize and search any vehicle, boat or aircraft which he believes to have been used in the commission of the offence, or to contain anything which might provide evidence of the offence.”[76]  He may also seize anything—including an animal, meat, trophy, or weapon—reasonably believed to be evidence of an offense.[77]

A wildlife officer also has limited prosecutorial power and may charge and summon for court appearance a person suspected of committing an offense under the WCNPA punishable by a fine of up to P500 and up to six months in prison.[78] 

In addition, the BDF plays a major role in enforcing the WCNPA.  Although no statutory authority for its role was located, one scholarly source indicates that the BDF’s involvement in antipoaching activities began in 1987 in large part to support the DWNP, whose antipoaching arm at the time was unable to effectively carry out its mission.[79]  Although at the beginning the BDF’s Commando Squadron was the only unit involved in antipoaching activities, by 1989 the mission was broadened to include all units of the BDF.[80]  The BDF’s antipoaching operations are aimed more at cross-border poaching by armed gangs than at local meat poachers.[81]  The BDF works closely with DWNP and the police in planning and executing its operations.[82]  It also works with countries in the region through a Joint Military Commission in which members share intelligence and participate in joint sting operations.[83]

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Prepared by Hanibal Goitom
Foreign Law Specialist
January 2013

 

[1] Dan Henk, The Botswana Defence Force and the War Against Poachers in Southern Africa, 16(2) Small Wars & Insurgencies 170, 172 (June 2005), available at http://www.rhinoresourcecenter.com/pdf_files/124/ 1243173877.pdf

[2] About Us, Department of Wildlife and National Parks, http://www.mewt.gov.bw/DWNP/article. php?id_mnu=41 (last visited Dec. 20, 2012).

[3] The European Union, Botswana Tourism Development Programme – Tourism Master Plan 4 (May 2000), available at the Botswana Tourism website, http://www.botswanatourism.co.bw/assests/tourism_master_plan.pdf

[4] Id. at 5; Botswana to Ban Wildlife Hunting, howzitmsn (Nov. 29, 2012), http://news.howzit.msn.com/ botswana-to-ban-wildlife-hunting.  

[5] Wildlife Conservation Policy, Government Paper No. 1 of 1986 (Government Printer, July 10, 1986), available at the Botswana Environmental Information System, UNDP website, http://www1.eis.gov. bw/EIS/Policies/ Environmental%20Policies/Wildlife%20Conservation%20Policy.pdf

[6] Department of Wildlife and National Parks, supra note 2.

[7] Wildlife Conservation and National Parks Act of 1992, VI Laws of Botswana, Cap. 38:0 (rev. ed. 2011), available at the Botswana e-Laws website, http://www .elaws.gov.bw/wondersbtree.php?m= PRINCIPAL&v=VI&vp=&t=WILDLIFE%20CONSERVATION%20AND%20NATIONAL%20PARKS&st=&pt=38:01#940

[9] Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 993 U.N.T.S. 243, http://www.cites.org/eng/disc/text.php.

[10] Wildlife Conservation and National Parks Act § 2.

[11] Id. §§ 16 & 20.

[12] Id. § 18.  These are leopard, lion, elephant, chobe bushbuck, sable antelope, and eland.  Id., sched. 7, pt. I.

[13] These are “night-ape, pangolin, aardwolf, brown hyaena, cheetah, serval, blackfooted cat, wild dog, otter, honey badger, civet, antbear, rock dassie, yellow-spotted dassie, rhinoceros, hippopotamus, giraffe, klipspringer, oribi, sharpe's steenbok, mountain reedbuck, waterbuck, puku, roan antelope, vaal rhebok, all pelicans, all herons, all egrets, all bitterns, hammerkop, all storks, all ibises, spoonbill, all flamingoes, secretary bird, all vultures, all falcons, all kites, all eagles, all buzzards, all parrowhawks, all goshawks, all harriers, all cranes, kori bustard, stanley, bustard, all jacanas, fishing owl, narina trogon, python.”  Id., sched. 6.

[14] Id. § 17.

[15] Id. §§ 17, 45, 55 & 57.

[16] Botswana to Ban Hunting Over Wildlife Species Decline, BBC (Nov. 29, 2012), http://www.bbc.co.uk/ news/world-africa-20544251

[18] Botswana to Ban Wildlife Hunting, Radio New Zealand News (Nov. 30, 2012), http://www.radionz. co.nz/news/world/122236/botswana-to-ban-wildlife-hunting

[19] Wildlife Conservation and National Parks Act §§ 62–66.

[20] Id. §§ 71 & 75.

[21] Id. § 49.

[22] Id. § 16.

[23] Id. § 30.

[24] Id. § 39.

[25] Id. § 49.

[26] Id. § 16.

[27] Id. § 20.

[28] Id. §21.

[29] Id. §§ 20 & 21.

[30] Id. § 22.

[31] Id. § 20 & sched. 8.

[32] Id. § 19.

[33] Id. §§ 18 & 19.

[34] Id. § 19.

[35] Id.

[36] Id.

[37] Id.

[38] Id. § 17.

[39] Id.

[40] Id.

[41] Id.

[42] Id. § 46.

[43] Wildlife Conservation and National Parks Act, Wildlife Conservation and National Parks (Cheetahs) (Killing Suspension) Order, S.I. 26, § 2 (Apr. 22, 2005).

[44] Wildlife Conservation and National Parks Act, Wildlife Conservation and National Parks (Lions) (Killing Suspension) Order, S.I. 26, § 2 (Apr. 22, 2005).

[45] Wildlife Conservation and National Parks Act § 46.

[46] Id.

[47] Id. § 47.

[48] Id.

[49] “In any year from the 1st March to 30th September means the period of time between half past six in the evening and six o’clock in the morning, and from the 1st October to the last day of February means the period of time between half past seven in the evening and half past five o’clock in the morning.”  Id. § 2.

[50] Id. §§ 55 & 56.  There are of course exceptions to these bans, including instances in which a person has a permit specifically allowing hunting at night, the use of blinding light, or hunting during a closed season as well as hunting to protect damage to property or hunting in self-defense.  Id.

[51] Id.

[52] Id. § 57.

[53] Id.

[54] Id. § 49.

[55] Id.

[56] Id. § 50.

[57] Id. § 62.

[58] Id.

[59] Id. § 64.

[60] Id.

[61] Id.

[62] Id.

[63] A “non-designated animal” is defined as “any animal which is not a game animal.”  Id. § 2.

[64] Id. § 60.

[65] Id.

[66] Id. § 71.

[67] Id.

[68] Id. § 75.

[69] Id.

[70] Id.

[71] Id. § 79.

[72] Id. §§ 2 & 3; see also Department Of Wildlife And National Parks, supra note 2.

[73] Id. § 73. 

[74] Henk, supra note 1, at 177–81; Vince Crawley, Botswana Troops Get Up Close and Personal with Wildlife Before Anti-Poaching Missions, Africom (Nov. 9, 2011), http://www.africom.mil/getArticle.asp?art=7422.

[75] Wildlife Conservation and National Parks Act § 73.

[76] Id.

[77] Id.

[78] Id. § 76.

[79] Henk, supra note 1, at 176.

[80] Id. at 178.

[81] Id. at. 183.

[82] Id at 185.

[83] Id.

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Last Updated: 11/03/2014