Offences in Botswana’s Wildlife Legislation

Introduction

For enforcement of its provisions, the Wildlife Conservation and National Parks Act creates offenses.  It criminalizes a wide range of activities which may impact negatively on wildlife and their habitats.  The key areas which the offences seek to address are protection of habitats, protection of wildlife, regulation of hunting, regulation of trade in wildlife and their products, regulation of wildlife trophies and proper administration of the Act.

Strict Liability Offences

Like many environmental crimes, there are several offenses created in the Wildlife Conservation and National Parks Act that are strict liability meaning that one does not have to prove the state of mind or intention of the accused person when he was committing the offense (mens rea).  In the State –Vs- Sabona and Another, [1978 BLR 28 (HC)] the court held that mens rea was not a necessary ingredient in the offence of hunting under the Fauna Conservation Act (repealed).  This is a 1979 case before the WCNPA was enacted but the principle is still the same as some offences in the Wildlife Conservation and National Parks Act are strict liability.  More recently in State –Vs- Matthys and Others [2003 (1) BLR 528 (HC)] the High Court reaffirmed this position by stating that the law imposes strict liability in hunting protected species and mens rea is not an element of the offence.

In Korong –Vs- the State [2007 (1) BLR 714 (HC)] the court laid down the principles applicable in deciding whether or not a statutory offence is one of strict liability.  Firstly, and as a general rule, mens rea is presumed to be a requirement of every criminal offence.  Secondly, an offence of strict liability will only be created when the language of the statute and nature of the offence clearly requires this so as to exclude mens rea as an element of the offence.  Thirdly, where words such as ‘wilfully’ or ‘knowingly’ or ‘intentionally’ are used then mens rea becomes an essential element which the state must prove beyond reasonable doubt.  Finally, where words such as ‘without reasonable excuse’ are used or where the section is silent as to whether or not mens rea is required, then to escape liability, the accused must prove on a balance of probabilities the element of excusability such as an honest mistake, or ignorance without blame of the state of affairs leading to the charge. Should he fail to do so, mens rea is presumed to be present

Taking an example of an offence under the Wildlife Conservation and National Parks Act, Section 11(1) provides that, “any person who kills, hunts or captures any animal in a national park shall be guilty of an offence…”  Applying the first principle set out by the court, there will be a presumption of mens rea for this offense.  But when you come to the second principle, the wording of the statute and the nature of the offense which is killing wildlife in a national park and which carries a heavy penalty clearly required mens rea to be excluded as an ingredient of the offense.   As for the third principle, words such as ‘wilfully’ or ‘knowingly’ or ‘intentionally’ are not used.  So it does not matter that one did not kill the animal in the national park wilfully, knowingly or intentionally.  It is clear that the drafters of the statute in creating this offense specifically excluded mens rea as an ingredient. Applying the fourth principle to the section, words such as “without reasonable excuse” are not used in Section 11(1).  It can therefore be easily concluded that the wording of the Section excludes mens rea as an ingredient the offense.

Offences Against Habitats

The Wildlife Conservation and National Parks Act creates several offences against wildlife habitats.  Section 8 is geared towards protecting wildlife habitats within national parks by criminalizing activities that destroy or damage the park.  It is an offence, for example, to cut damage or destroy any tree or other vegetation in a national park  and to cause a veld fire within a national park. The Act also protects national parks from invasive species by making it an offence to introduce any wild or domestic animal or vegetation into the park. Dangerous weapons and items likely to harm wildlife such as explosives, traps and poisons are also prohibited from national parks.  The Act further seeks to limit extractive activities within national parks.  According to Section 10, mining in national parks is prohibited unless the Minister gives his written permission.

Offences to Protect Wildlife Species

In line with the Wildlife Conservation Policy, the Act encourages wildlife utilization.  However, to protect wildlife species, especially those that may be endangered or vulnerable, the Act categorizes wildlife into protected game animals, partially protected game animals and non-designated animals.  Protected game animals cannot be hunted or captured without a permit and include animals like the rhino, cheetah, wild dog and pangolin. Partially protected game animals include the elephant, lion and leopard and also cannot be hunted without a permit.  Non-designated animals are defined in the Act as being animals which are not game animals and are not given as much protection as protected and partially protected game animals.

Many offences are created under the Wildlife Conservation and National Parks Act to protect wild animals.  Within national parks, wildlife enjoys absolute protection and killing, hunting, capturing, injuring, disturbing or removing wildlife are some of the actions criminalized.  In game reserves and sanctuaries, it is an offence to hunt, kill or capture any animal or any species or variety, specimen or sex of any animal specified in that particular game reserve or sanctuary without a permit.  On game ranches, one cannot farm, ranch, hunt or capture a protected game animal or partially protected game animal without authorization from the Director.

It is not only illegal killing of wildlife that is criminalized.  Killing of wildlife in cases of Human Wildlife Conflict or accidental killing is also regulated.  Procedures are laid down for killing conflict animals and failure to follow the procedures in cases of conflict constitutes an offence.  Further, if one kills an animal in self-defence, he must report such killing to the nearest wildlife office or police station.  If one kills a game animal by accident or error, one is required to make a report or be liable to an offence under the Act.  Special protection is given to elephants and rhinos and the penalties for failing to report their accidental killing are much higher.

The Act further regulates the keeping of live wild animals.  It is an offence to keep a live wild animal in confinement without a permit.  It is also an offence to keep an animal for exhibition to the public without a permit.  Where one is issued with a permit to keep or exhibit a wild animal, one cannot release or dispose of that animal without the approval of the Director.

Regulation of Hunting

The Wildlife Conservation and National Parks Act allows hunting in Botswana but hunting is highly regulated and offences have been created to punish individuals who contravene the laid down rules when hunting.  Even with the strict regulation, the government of Botswana wanted stricter measures.  The President therefore put a temporary ban on hunting on all public land.  The ban came into force in 2014. Hunting on private land remains strictly regulated under the Wildlife Conservation and National Parks Act.

It is an offence to undertake hunting without a license under the Act.  Professional hunters are required to take out a professional hunters license before hunting and failing to do so or transferring the license without authority constitute offences.  Together with the first hunting license is issued a hunting card.  The holder of a hunting card is required to enter thereon the particulars of all licenses, permits or other authorizations issued to him or held by him.  It is an offence to use or obtain another person’s hunting card, to fail to record information which is required on the hunting card and to refuse or fail to produce the hunting card when required to do so. A landowner or occupier must not give permission to an unlicensed person to hunt on their land.  The holder of a hunting license also commits an offense if he hunts on any land, game farm or ranch without the permission of the owner or occupier.  When one is hunting, he must take steps to kill wounded animals and report the wounding of dangerous animals. One must report the completion of a hunt to the relevant authorities within 7 days or they will be liable to penalties.

The Act provides for methods that may not be used for hunting.  Hunting or capturing a game animal by night or using dazzling lights and hunting during closed seasons is prohibited. Using a vehicle or mechanically propelled vessel for capturing a game animal, using such a vehicle to drive, stampede or disturb an animal and discharging a weapon at a game animal while in a mechanically propelled vessel is also prohibited.  Further, an animal is not to be surrounded with fire and neither is one to set grass or bushes on fire for purposes of hunting or capturing an animal.  One is not allowed to hunt by using any immediate means other than a hunting rifle, a shotgun or a dog unless he is authorized to do so.  It is also an offense to use certain specified firearms to hunt an elephant or a buffalo.

Regulation of Wildlife Trade

The Wildlife Conservation and National Parks Act regulates the trade in wildlife and their products in accordance with CITES provisions.  It is an offense to sell wildlife or wildlife products without a permit. If one wishes to purchase wildlife or wildlife products from another, they must ensure that the person selling has a valid permit authorizing him to sell otherwise the purchaser will have committed a crime under the Act.  Exporting, importing, transporting and re-exporting wildlife and wildlife products is also regulated and one can only do so under a permit.

Wildlife trophies are regulated under the Act and carrying on the business of a trophy dealer otherwise than under the terms and conditions of a dealers’ license is an offense.  One should also not sell, deal in or manufacture any article from any trophy which has not been lawfully imported or which has been obtained from an animal killed or captured unlawfully.  The Act requires one to produce the lower jaw, tail and tusk of an elephant for registration and being in possession of or transferring an unregistered tusk is an offense. A rhinoceros horn is regarded as a government trophy and being in possession of one or transferring it or dealing in it is prohibited.  Being in unlawful possession of a government trophy or failing to make a report of obtaining possession of a government trophy is also an offence.

Offences to Ensure Proper Administration of the Act

Apart from all the offences protecting wildlife and habitats, the Wildlife Conservation and National Parks Act defines offenses that will help in its proper enforcement and administration.  There are various offences created in relation to regulatory procedures.  Offences include contravening the conditions of a license or permit, failing to inform a licensing officer of any disqualifying fact when applying for a license, making a false statement to a licensing officer and failing to report the loss or destruction of a license. One also commits an offense if they contravene or fail to comply with the terms and conditions of a permit or if they fail to return a permit for cancellation amendment or modification.  As part of regulating hunting, landowners are requested to maintain registers.  It is an offense to make a false entry into a register or to fail to produce a register when required to do so.

The Act further creates offenses to ensure that the powers of enforcement officers are not undermined.  Offenses include obstructing or hindering an authorized person from conducting a search of any premises or vehicle, failing to comply with the direction of an officer, giving false information to an officer, assaulting or wilfully obstructing an officer, resisting arrest and failing to comply with a request to stop at a road barrier.  The Act also seeks to prevent defrauding of the public by making it an offense to falsely represent oneself as a wildlife officer, honorary officer and gate attendant and wearing the uniform or carrying or displaying any badge or document of appointment or identity of an officer without lawful excuse.

The Wildlife Conservation and National Parks Act provides that where a person is charged with an offence thereunder and the evidence discloses that the person was instead guilty of a lesser offence and not the offence charged with, the court can find him guilty of the lesser offence even though he was not initially charged with it. This provision is important in saving law enforcement and judicial time and the accused person does not have to go free where he has been found guilty of a lesser offence under the Act.