CHAPTER 38:03
FOREST

 

ARRANGEMENT OF SECTIONS

 

   SECTION

 

 

 

PART I
Preliminary

 

   1.   Short title

 

   2.   Interpretation

 

   2A.   Application of the Convention

 

 

 

PART II
Delegation by Forest Officer

 

   3.   Delegation

 

 

 

PART III
Declaration of Forest Reserves

 

   4.   Declaration of forest reserves on State land

 

   5.   Application by local authority for establishment of forest reserve

 

   6.   Application by land board to establish forest reserve

 

   7.   Declaration of forest reserve on local authority land and land in tribal territory

 

   8.   Description of forest reserve

 

   9.   Variation of forest reserve

 

   10.   Marking of boundaries

 

 

 

PART IV
Protected Trees

 

   11.   Declaration of protected trees

 

 

 

PART V
Control of Forest Produce

 

   12.   Prohibited acts in forest reserve

 

   13.   Prohibited acts on State Land

 

   14.   Forest offences

 

   15.   Licence to do prohibited acts

 

   16.   Application for licence

 

   17.   Exemption

 

   18.   Exclusive licences

 

   19.   Application of certain sections to private land

 

 

 

PART VA
Trading in Endangered Species of Flora

 

   19A.   Import, export, etc. of endangered species of flora

 

   19B.   Appointment of management and scientific authority

 

   19C.   Affixing of a mark to identify a specimen

 

 

 

PART VI
Miscellaneous

 

   20.   Production of licences

 

   21.   Production of proof of appointment

 

   22.   Civil remedy reserved

 

   23.   Assessment of damages on conviction

 

   24.   Power to confiscate property

 

   25.   Search without warrant

 

   26.   Arrest without warrant

 

   27.   Seizure of property liable to confiscation

 

   28.   Summary disposal of charges

 

   29.   Evidence

 

   30.   Extinguishing fires

 

   31.   Vicarious liability

 

   32.   Responsibility for child's conduct

 

   33.   Regulations

 

 

 

      Schedule

 

 

Act 23, 1968,
Act 29, 1980,
Act 8, 2005.

An Act to provide for the better regulation and protection of forests and forest produce in Botswana and to provide for matters incidental thereto.

[Date of Commencement: 10th March, 1968]

PART I
Preliminary
(ss 1-2)

 

1.   Short title

   This Act may be cited as the Forest Act.

 

2.   Interpretation

   In this Act, unless the context otherwise requires-

   "child" means any person who in the opinion of the court is under the age of 14 years;

   "firewood" means fallen dead wood of trees, branches, waste wood and refuse wood, but does not include sound wood or wood suitable for any purpose other than burning;

   "forest offence" means any contravention of this Act;

   "forest officer" means the holder of the public office of that name or a public officer appointed under section 3(2);

   "forest official" means the forest officer, a forester, a forest assistant, or a forest guard;

   "forest produce" includes trees, timber, brushwood, firewood, poles, bamboo, slabs, chips, saw-dust, plants, grass, reeds, thatch, bedding, creeper, fibre, leaves, fruits, seeds, roots, bark, resin, rubber, sap, charcoal, honey, wax, fungi, galls, earth, or any readily recognised part or derivative thereof and such other things as the Minister may by notice in the Gazette declare to be forest produce;

   "forest reserve" or "reserve" means any area hereafter declared as a forest reserve by the President in pursuance of the provisions of this Act;

   "licence" means a permit or certificate in writing issued in pursuance of the terms of this Act;

   "livestock" means cattle, horses, donkeys, mules, pigs, sheep and goats, and young thereof;

   "local authority land" means any area-

 

   (a)   owned by a local authority; or

 

   (b)   granted by a land board in pursuance of the Tribal Land Act, to a local authority;

   "major forest produce" means any tree or part thereof other than seeds, fruits, leaves or twigs;

   "officer" means an administrative officer, a forest official or a police officer;

   "private land" means land which is not State Land or local authority land but does not include land in a tribal territory;

   "protected tree" means a tree declared to be a protected tree in pursuance of the provisions of section 11;

   "recognized road" means a road prescribed as a recognized road under section 17;

   "river" includes streams and all natural water courses in which water flows or remains either throughout the year or at certain seasons;

   "State land" has the same meaning as in the State Land Act;

   "trees" includes palms, shrubs, bushes, climbers, seedlings, saplings and regrowth of all ages and of all kinds, and any part thereof;

   "tribal territory" and "tribe" have the same meaning as in the Bogosi Act.

 

2A.   Application of the Convention

   Subject to the provisions of this Act, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (hereinafter referred to as "the Convention") as set out in the Schedule to this Act, including any Appendices thereto and any Resolutions of the Conferences of the parties shall have the force of law in Botswana in relation to trading in any species of flora to which the Convention applies.

PART II
Delegation by Forest Officer
(s 3)

 

3.   Delegation

   (1) The forest officer may, with the approval of the Minister, delegate any of his powers and functions to a forester either generally or subject to such limitations as may be deemed fit.

   (2) Without prejudice to subsection (1), the Minister may, in the absence of the forest officer, by notice published in the Gazette appoint such other public officer as he may consider fit to perform the functions conferred on the forest officer under this Act.

PART III
Declaration of Forest Reserves
(ss 4-10)

 

4.   Declaration of forest reserves on State Land

   The President may, by statutory instrument, make an order to declare any area on State land to be a forest reserve.

 

5.   Application by local authority for establishment of forest reserve

   (1) A local authority may propose to the Minister that a forest reserve be established in any area of its land.

   (2) Upon being satisfied that the proposed establishment of a forest reserve has been approved under the provisions of the Town and Country Planning Act, the Minister shall refer such proposal to the President.

 

6.   Application by land board to establish forest reserve

   A land board acting in accordance with the advice of the local authority may propose to the President that a forest reserve be established on any land within its area.

 

7.   Declaration of forest reserve on local authority land and land in tribal territory

   (1) The President may, after considering any proposals referred to him in terms of section 5 or 6, by order published in the Gazette, declare the area referred to therein to be a forest reserve.

   (2) The President may, by the same or other order published in the Gazette, authorize a local authority to make bye-laws in respect of-

 

   (a)   a forest reserve declared over the land of such local authority; or

 

   (b)   a forest reserve declared on tribal territory within the area of such local authority.

   (3) Any bye-laws referred to in subsection (2) may be made for the purpose of-

 

   (a)   taking measures, including the appointment of officers, for the protection, control and management of such forest reserve;

 

   (b)   issuing licences for the felling and taking of forest produce within such reserve; or

 

   (c)   collecting fees or royalties in respect of such produce and paying such fees or royalties into the revenue of such local authority.

   (4) The President may amend or revoke any authorization granted by him under subsection (2).

   (5) An order made in terms of subsection (2) or (3) may provide that the protection, control and management of such forest reserve shall be subject to the general control and directions of the forest officer.

 

8.   Description of forest reserve

   An order made in terms of section 4 or section 7 shall describe in detail the delimitations of the proposed forest reserve.

 

9.   Variation of forest reserve

   The President may at any time, by order published in the Gazette, declare that any forest reserve shall cease to be such a reserve, or that the boundaries of any such reserve shall be varied:

   Provided that no such declaration shall be made in respect of a forest reserve on local authority land or on land in tribal territory unless the authority referred to in section 5 or 6, as the case may be, has made a request therefor.

 

10.   Marking of boundaries

   The boundaries of any forest reserve established under this Part shall be marked by notice boards thereon, in the English language and in the languages of the inhabitants of the area in which the forest reserve is established, and by a fence or beacons, to the satisfaction of the forest officer.

PART IV
Protected Trees
(s 11)

 

11.   Declaration of protected trees

   (1) The Minister may, by order published in the Gazette, declare any tree or class of tree to be a protected tree in Botswana or in any part thereof:

   Provided that no such declaration shall be made in respect of a tree-

 

   (a)   in a tribal territory without the consent of the land board acting in accordance with the advice of the local authority;

 

   (b)   on a private land, without the consent of the owner thereof.

   (2) No person shall fell, cut, take, work, burn, injure or remove any protected tree unless he is the holder of a licence to do so issued under the provisions of this Act.

PART V
Control of Forest Produce
(ss 12-19)

 

12.   Prohibited acts in forest reserve

   (1) No person shall in a forest reserve-

 

   (a)   fell, cut, take, work, burn, injure or remove any forest produce;

 

   (b)   squat, reside or build any hut or other living place or livestock enclosure, or construct or re-open any saw-pit or road;

 

   (c)   set fire to any grass or undergrowth, or light or assist in lighting any fire, or leave unattended a fire which he has lit, or caused by his negligence, before such fire has been thoroughly extinguished, or leave therein any object likely to cause fire;

 

   (d)   graze livestock or allow livestock to trespass;

 

   (e)   clear, cultivate or break up land for cultivation or other purpose; or

 

   (f)   be in possession of any implement for the cutting, taking, working or removal of forest produce,

unless he is the holder of a licence to do so, issued under the provisions of this Act, or any other written law, or is exempted under section 17.

   (2) No person shall allow any fire lit by himself or his servants to spread into a forest reserve unless he is the holder of a licence to do so issued under the provisions of this Act.

 

13.   Prohibited acts on State Land

   (1) No person shall on State land fell, cut, take, work, burn, injure or remove-

 

   (a)   any tree which is growing within 10 metres of the bank of any river; or

 

   (b)   any forest produce, other than forest produce-

 

      (i)   used for domestic purposes in his private household or in that of his employer or for the construction of household or garden implements and furniture for himself; or

 

      (ii)   gathered by any person belonging to a community which is entirely dependent for its living on hunting, the gathering of foodstuffs and the gathering of forest produce and who is himself so dependent and where the forest produce is gathered for the reasonable requirements of the members of the community to which he belongs,

unless he is the holder of a licence to do so, issued under the provisions of this Act.

   (2) For the purposes of subsection (1)(b) "State land" does not include-

 

   (a)   any area of land for which a city or a town council has been established in terms of the Town Council Regulations and in respect of which such city or town council has made provision in its bye-laws for the protection of any forest produce;

 

   (b)   any area of land occupied by a public officer as quarters provided by the Government; or

 

   (c)   any other area of land which the Minister has declared, by order published in the Gazette, not to be State land.

 

14.   Forest offences

   Any person who-

 

   (a)   contravenes section 11(2), 12 or 13 or the conditions of any licence issued to him under the provisions of section 15;

 

   (b)   knowingly receives or is in possession of any forest produce in respect of which a forest offence has been committed;

 

   (c)   without authority makes upon or fixes to any forest produce a mark used by any forest official for any purpose under this Act to indicate that such forest produce is the property of the State or to indicate that forest produce may lawfully be cut or removed, or removes, damages or defaces any boundary mark, beacon, notice or fence posted or erected to indicate the boundary of a forest reserve; or

 

   (d)   without authority, alters, obliterates or defaces any stamp, mark or sign placed upon forest produce by or on the authority of a forest official, or counterfeits or alters any licence which may be issued under this Act,

shall be guilty of an offence and liable to a fine not exceeding P5 000 or to imprisonment for a term not exceeding two years, or to both and, if he is the holder of a licence to forfeiture of such licence.

 

15.   Licence to do prohibited acts

   The forest officer, or any forester deputed thereto by him in pursuance of section 3, may issue to any person a licence to do any act prohibited under the provisions of sections 11(2), 12 and 13 on such conditions as the officer issuing the licence may impose.

 

16.   Application for licence

   An application for a licence under section 15 shall be made to the appropriate licensing officer in the prescribed form.

 

17.   Exemption

   Notwithstanding anything contained in section 12-

 

   (a)   a bona fide inhabitant of a town, village or habitation, specified by the Minister by order published in the Gazette, may perform such acts as may be specified in such order in a forest reserve adjacent to such town, village or habitation and referred to in the aforesaid notice; and

 

   (b)   a bona fide traveller may, while travelling on a lawful journey on a recognized road through or in a forest reserve-

 

      (i)   light a fire for the purposes of cooking, warmth or protection;

 

      (ii)   take firewood for his own use and for the use of his servants for the purposes referred to in subparagraph (i);

 

      (iii)   be in possession of implements for the cutting and taking of firewood;

 

      (iv)   graze any transport animals required for his journey; or

 

      (v)   cut forest produce for the purpose of releasing or extracting any vehicle bogged down in such road.

   (2) An order made under subsection (1) may prescribe roads which are recognized roads.

 

18.   Exclusive licences

   Notwithstanding anything to the contrary contained in this Act, the Minister may, subject to such general or special directions as he may think fit, authorize the forest officer to issue licences in respect of forest produce being the property of the State-

 

   (a)   granting the exclusive right to take such produce; or

 

   (b)   granting the right to take such produce free, or at a reduced fee,

on such conditions as the forest officer, in the absence of general or special directions by the Minister, may think fit.

 

19.   Application of certain sections to private land

   (1) The Minister may, in respect of local authority land or of private land, on the application of the local authority concerned or of the occupier of such private land, as the case may be, declare by order published in the Gazette that the provisions of section 13 and section 14 shall apply to such land as if such land was State land, whereupon the provisions of those sections shall apply to such land; and the Minister may direct that the control and management of such land shall be under the general control and direction of the forest officer.

   (2) The Minister may, in respect of any land to which the provisions of sections 13 and 14 have been applied by subsection (1), declare, by order published in the Gazette, that the said provisions shall cease to apply to such land, whereupon the provisions shall cease to apply to such land and the forest officer shall cease to direct and control the management of such land.

PART VA
Trading in Endangered Species of Flora (ss 19A-19C)

 

19A.    Import, export, etc. of endangered species of flora

   (1) Subject to the provisions of this section, no person shall import, export or re-export, possess or transport any species of flora specified in the Convention except in accordance with a permit or certificate, as the case may be, issued by a management authority in consultation with the scientific authority.

   (2) The Minister may make regulations for the issue and renewal of import, export or re-export, possession or transportation permits or certificates, and the conditions and duration of the permits or certificates.

   (3) A person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding P2,000 or to imprisonment for a term not exceeding two years, or to both.

 

19B.    Appointment of management and scientific authority

   The Minister may make regulations-

 

   (a)   for the appointment of a management authority which shall be responsible for the issue of permits or certificates under section 19A; and

 

   (b)   the appointment of a scientific authority which shall perform the functions specified in Articles III and IV of the Schedule.

 

19C.   Affixing of a mark to identify a specimen

   (1) A management authority appointed in terms of the regulations made under section 19B may affix a mark on a flora specimen for the purposes of identifying the specimen.

   (2) No person shall alter, deface or erase a mark affixed in accordance with subsection (1).

   (3) A person who contravenes subsection (2) shall be guilty of an offence and liable to a fine not exceeding P2,000 or to imprisonment for a term not exceeding two years, or to both.

PART VI
Miscellaneous
(ss 20-33)

 

20.   Production of licences

   It shall be lawful for an officer to demand from any person the production of his licence to do any act in respect of which a licence is required under this Act and if such licence is not immediately produced, to restrain such person from further acts of a similar nature.

 

21.   Production of proof of appointment

   Any officer exercising or purporting to exercise any power conferred upon him by this Act shall produce on demand to any person concerned proof of his appointment.

 

22.   Civil remedy reserved

   Nothing contained in this Act shall abrogate from or interfere with the right of the State or of any person to sue for and recover damages, or relief against injury, caused by a forest offence:

   Provided that in assessing any such damages, the court shall take into account the amount of any damages awarded in accordance with the provisions of section 23.

 

23.   Assessment of damages on conviction

   (1) Upon conviction of any person for a forest offence, the court may assess the amount of any damage which may have been caused by the accused as a result of such offence, and may forthwith award as compensation for such injury the amount so assessed:

   Provided that the amount so awarded shall not exceed the civil jurisdiction of the court; such award shall have the effect of a civil judgment of the court, and may be enforced accordingly.

   (2) If an award under subsection (1) is in respect of a forest offence-

 

   (a)   committed on State land, such award shall operate in favour of the State and any amount recovered thereunder shall be paid into the Consolidated Fund;

 

   (b)   committed on local authority land or land in tribal territory, such award shall operate in favour of the local authority and any amount recovered thereunder shall be paid into the revenue of the local authority; or

 

   (c)   committed on private land, such award shall operate in favour of the occupier of such land.

 

24.   Power to confiscate property

   (1) If any person is convicted of a forest offence, the court may order that, in addition to any penalty imposed upon the accused, any forest produce in respect of which the offence was committed, and any livestock, tools, instruments, vehicles or property used in connection with the committing of such offence shall be confiscated to the State.

   (2) If any person is convicted of a contravention of section 12(1)(b) the court may order that any hut, living place, enclosure or saw-pit shall be destroyed, and that the materials thereof shall be confiscated to the State.

   (3) If the accused fails to comply with such order, the forest officer may cause it to be carried out, and any expense incurred thereby by the forest officer shall be a debt due by the accused to Government.

   (4) Any property so confiscated shall be sold and the proceeds paid into the Consolidated Fund, or be otherwise disposed of as the Minister may direct.

 

25.   Search without warrant

   (1) If the forest officer or a forester believes on reasonable grounds that any person is guilty of a forest offence, he may enter upon any land without warrant for the purpose of investigating the suspected offence.

   (2) If an officer believes on reasonable grounds that any person is guilty of a forest offence, or that there is upon any person or upon any land or premises anything as to which there are reasonable grounds of suspicion that it will afford evidence as to the commission of any such offence, he may without warrant enter upon such land or premises, and search such premises or such person or any baggage, package, parcel, conveyance, tent, building or enclosure under the control of such person, his agent or servant:

   Provided that whenever a woman is searched, the search shall be made only in private and by a woman.

 

26.   Arrest without warrant

   (1) Any officer may, without warrant, arrest any person whom he reasonably suspects of having committed a forest offence, if such person refuses to give his name and address, or gives a name or address which such officer has reason to believe is false, or if such officer has reason to believe that such person will abscond.

   (2) Every officer making an arrest under this section shall without unnecessary delay cause the person so arrested to be brought before a court having jurisdiction, to be dealt with according to law.

 

27.   Seizure of property liable to confiscation

   (1) If there is reason to believe that a forest offence has been committed in respect of any forest produce, such forest produce, together with all livestock, tools, instruments, vehicles or property used in committing such offence may be seized by any officer, and detained by him until the offender can be brought before a court of competent jurisdiction and an order of such court obtained as to the disposal thereof.

   (2) The State shall not be responsible for any loss or damage which may occur to any property during the act of seizure or whilst such property is detained under subsection (1), and no officer shall be responsible for any such loss or damage unless he has caused the same negligently, maliciously or fraudulently.

 

28.   Summary disposal of charges

   When any person has been summoned or warned to appear in a magistrate's court, or has been arrested, or has been informed by a forest officer or a forester that it is intended to institute criminal proceedings against him for any offence under sections 12 or 13 the functions of an officer holding a rank or post designated by the Minister in terms of section 307(1) of the Criminal Procedure and Evidence Act for the purposes of section 307 of that Act may be performed or exercised by any forest officer or forester empowered thereto by the Minister by order published in the Gazette.

 

29.   Evidence

   Whenever in any proceedings under this Act the question arises whether any forest produce is the property of the State, a local authority or a tribe, it shall be presumed to be the property of the State, the local authority or a tribe, as the case may be, unless the contrary is proved.

 

30.   Extinguishing fires

   (1) If there is good reason to believe that any fire in the open air within 1,61 km of the boundary of a forest reserve may become dangerous to life or property any person may, either alone or with persons under his control, enter upon the land on which such fire is burning for the purpose of extinguishing that fire or preventing the extension thereof.

   (2) If the forest officer or a forester is present at the scene of such fire he shall have the right to take control of operations directed at extinguishing that fire or preventing the extension thereof.

   (3) Any person controlling any safety measures taken in terms of this section-

 

   (a)   may take such measures as in the circumstances are reasonable and necessary or expedient for extinguishing or preventing the spread of the fire, and may for such purpose cause reasonable destruction of any trees, grass, crops of other vegetation by burning, cutting, ploughing or otherwise;

 

   (b)   may call upon any able-bodied persons present at or in the vicinity of such fire to assist or to do any act or perform any service which may reasonably be considered necessary or expedient to control or extinguish or prevent the spread of the fire; or

 

   (c)   may order any person whose life may be or may become endangered or whose presence at or in the vicinity of the fire may interfere with the fire, to remove himself or any vehicle or other thing under his control.

   (4) Any person who fails to comply with any requirement or order under subsection (3) shall be guilty of an offence and liable to a fine not exceeding P500 or to imprisonment for a term not exceeding six months, or to both.

   (5) No liability shall attach to the forest officer or a forester or other person in respect of any loss or damage arising out of the lawful exercise by them of any power conferred by this section; and no action shall lie for trespass or for damages caused in good faith by any person in charge of any operations lawfully undertaken under this section, or by any person assisting any such operations.

 

31.   Vicarious liability

   If the manager, agent, servant or other employee of any person (hereinafter called "the employer") does or omits to do anything in contravention of any of the provisions of this Act such employer shall be deemed himself to have contravened such provision and be liable to the penalties therefor, unless he proves to the satisfaction of the court that-

 

   (a)   in doing or omitting to do such thing such manager, agent, servant or employee was acting without his connivance or permission;

 

   (b)   all reasonable steps were taken by him to prevent any act or omission of the kind in question; and

 

   (c)   it was not under any condition or in any circumstances within the scope of authority or the course of the employment of the manager, agent, servant or employee to do or omit to do acts whether lawful or unlawful of the character of the act or omission charged:

   Provided that the fact that the employer issued instructions forbidding any act or omission of the kind in question shall not, of itself, be accepted as sufficient proof that he took all reasonable steps to prevent the act or omission.

 

32.   Responsibility for child's conduct

   Where any person having charge of a child-

 

   (a)   by his act has conduced to the commission by that child of any act or omission which if committed by an adult would constitute an offence under this Act; or

 

   (b)   fails to prevent the commission by that child of an act or omission which if committed by an adult would constitute an offence under this Act in circumstances where it was reasonably possible for that person to prevent the commission of the act or omission,

he shall be guilty of an offence and shall be liable to a fine not exceeding P250 or to imprisonment for a term not exceeding three months, or to both.

 

33.   Regulations

   (1) The Minister may make regulations prescribing anything which under this Act is to be prescribed.

   (2) In particular, and without derogating from the generality of the foregoing, the Minister may make regulations concerning-

 

   (a)   the issue, termination, cancellation, suspension or extension of licences and the conditions which may be attached thereto;

 

   (b)   the fees to be paid or which may be refunded in respect of licences and exemptions from the payment of fees;

 

   (c)   dimensions, seasoning, names and marks of any forest produce and registration of and the rendering of returns by persons engaged in the transport, sale, manufacture and use of forest produce;

 

   (d)   providing for the survey and demarcation of forest reserves;

 

   (e)   the position, use and registration of marking hammers, instruments or devices;

 

   (f)   the marking and numbering of trees and the listing of trees in relation to their markings, numbers and location;

 

   (g)   the removal of felled timber from a forest reserve and the conditions relating to its removal.

   (3) Regulations made under this section may provide for penalties for contravention thereof not exceeding, for a first offence, a fine of P500 and imprisonment for six months and, for a second or subsequent offence, a fine of P1000 and imprisonment for one year.

   (4) Different forms and different fees may be prescribed for, and different conditions may be attached to, different licences.

SCHEDULE

 

(Sec 2A)

 

Convention on International Trade in Endangered Species of Wild Fauna and Flora

 

   The Contracting States,

 

   Recognizing that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come;

 

   Conscious of the ever-growing value of wild fauna and flora from aesthetic, scientific, cultural, recreational and economic points of view;

 

   Recognizing that peoples and States are and should be the best protectors of their own wild fauna and flora;

 

   Recognizing, in addition, that international co-operation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade;

 

   Convinced of the urgency of taking appropriate measures to this end.

 

   Have agreed as follows:

ARTICLE I
Definitions

 

   For the purpose of the present Convention, unless the context otherwise requires:

 

   (a)   "Species" means any species, subspecies, or geographically separate population thereof;

 

   (b)   "Specimen" means:

 

      (i)   any animal or plant, whether alive or dead;

 

      (ii)   in the case of an animal: for species included in Appendices I and II, any readily recognizable part or derivative thereof; and for species included in Appendix III, any readily recognizable part or derivative thereof specified in Appendix III in relation to the species; and

 

      (iii)   in the case of a plant: for species included in Appendix I, any readily recognizable part or derivative thereof; and for species included in Appendices II and III, any readily recognizable part or derivative thereof specified in Appendices II and III in relation to the species;

 

   (c)   "Trade" means export, re-export, import and introduction from the sea;

 

   (d)   "Re-export" means export of any specimen that has previously been imported;

 

   (e)   "Introduction from the sea" means transportation into a State of specimens of any species which were taken in the marine environment not under the jurisdiction of any State;

 

   (f)   "Scientific Authority" means a national scientific authority designated in accordance with Article IX;

 

   (g)   "Management Authority" means a national management authority designated in accordance with Article IX;

 

   (h)   "Party" means a State for which the present Convention has entered into force.

ARTICLE II
Fundamental Principles

 

   1. Appendix I shall include all species threatened with extinction which are or may be affected by trade. Trade in specimens of these species must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.

 

   2. Appendix II shall include:

 

   (a)   all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival; and

 

   (b)   other species which must be subject to regulation in order that trade in specimens of certain species referred to in subparagraph (a) of this paragraph may be brought under effective control.

 

   3. Appendix III shall include all species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the co-operation of other Parties in the control of trade.

 

   4. The Parties shall not allow trade in specimens of species included in Appendices I, II and III except in accordance with the provisions of the present Convention.

ARTICLE III
Regulation of Trade in Specimens of Species Included in Appendix I

 

   1. All trade in specimens of species included in Appendix I shall be in accordance with the provisions of this Article.

 

   2. The export of any specimen of a species included in Appendix I shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met:

 

   (a)   a Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species;

 

   (b)   a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora;

 

   (c)   a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment; and

 

   (d)   a Management Authority of the State of export is satisfied that an import permit has been granted for the specimen.

 

   3. The import of any specimen of a species included in Appendix I shall require the prior grant and presentation of an import permit and either an export permit or a re-export certificate. An import permit shall only be granted when the following conditions have been met:

 

   (a)   a Scientific Authority of the State of import has advised that the import will be for purposes which are not detrimental to the survival of the species involved;

 

   (b)   a Scientific Authority of the State of import is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and

 

   (c)   a Management Authority of the State of import is satisfied that the specimen is not to be used for primarily commercial purposes.

 

   4. The re-export of any specimen of a species included in Appendix I shall require the prior grant and presentation of a re-export certificate. A re-export certificate shall only be granted when the following conditions have been met:

 

   (a)   a Management Authority of the State of re-export is satisfied that the specimen was imported into that State in accordance with the provisions of the present Convention;

 

   (b)   a Management Authority of the State of re-export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment; and

 

   (c)   a Management Authority of the State of re-export is satisfied that an import permit has been granted for any living specimen.

 

   5. The introduction from the sea of any specimen of a species included in Appendix I shall require the prior grant of a certificate from a Management Authority of the State of introduction. A certificate shall only be granted when the following conditions have been met:

 

   (a)   a Scientific Authority of the State of introduction advises that the introduction will not be detrimental to the survival of the species involved;

 

   (b)   a Management Authority of the State of introduction is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and

 

   (c)   a Management Authority of the State of introduction is satisfied that the specimen is not to be used for primarily commercial purposes.

ARTICLE IV
Regulation of Trade in Specimens of Species Included in Appendix II

 

   1. All trade in specimens of species included in Appendix II shall be in accordance with the provisions of this Article.

 

   2. The export of any specimen of a species included in Appendix II shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met:

 

   (a)   a Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species;

 

   (b)   a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; and

 

   (c)   a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.

 

   3. A Scientific Authority in each Party shall monitor both the export permits granted by that State for specimens of species included in Appendix II and the actual exports of such specimens. Whenever a Scientific Authority determines that the export of specimens of any such species should be limited in order to maintain that species throughout its range at a level consistent with its role in the ecosystems in which it occurs and well above the level at which that species might become eligible for inclusion in Appendix I, the Scientific Authority shall advise the appropriate Management Authority of suitable measures to be taken to limit the grant of export permits for specimens of that species.

 

   4. The import of any specimen of a species included in Appendix II shall require the prior presentation of either an export permit or a re-export certificate.

 

   5. The re-export of any specimen of a species included in Appendix II shall require the prior grant and presentation of a re-export certificate. A re-export certificate shall only be granted when the following conditions have been met:

 

   (a)   a Management Authority of the State of re-export is satisfied that the specimen was imported into that State in accordance with the provisions of the present Convention; and

 

   (b)   a Management Authority of the State of re-export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.

 

   6. The introduction from the sea of any specimen of a species included in Appendix II shall require the prior grant of a certificate from a Management Authority of the State of introduction. A certificate shall only be granted when the following conditions have been met:

 

   (a)   a Scientific Authority of the State of introduction advises that the introduction will not be detrimental to the survival of the species involved; and

 

   (b)   a Management Authority of the State of introduction is satisfied that any living specimen will be so handled as to minimize the risk of injury, damage to health or cruel treatment.

 

   7. Certificates referred to in paragraph 6 of this Article may be granted on the advice of a Scientific Authority, in consultation with other national scientific authorities or, when appropriate, international scientific authorities, in respect of periods not exceeding one year for total numbers of specimens to be introduced in such periods.

ARTICLE V
Regulation of Trade in Specimens of Species Included in Appendix III

 

   1. All trade in specimens of species included in Appendix III shall be in accordance with the provisions of this Article.

 

   2. The export of any specimen of a species included in Appendix III from any State which has included that species in Appendix III shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met:

 

   (a)   a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; and

 

   (b)   a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.

 

   3. The import of any specimen of a species included in Appendix III shall require, except in circumstances to which paragraph 4 of this Article applies, the prior presentation of a certificate of origin and, where the import is from a State which has included that species in Appendix III, an export permit.

 

   4. In the case of re-export, a certificate granted by the Management Authority of the State of re-export that the specimen was processed in that State or is being re-exported shall be accepted by the State of import as evidence that the provisions of the present Convention have been complied with in respect of the specimen concerned.

ARTICLE VI
Permits and Certificates

 

   1. Permits and certificates granted under the provisions of Articles III, IV, and V shall be in accordance with the provisions of this Article.

 

   2. An export permit shall contain the information specified in the model set forth in Appendix IV, and may only be used for export within a period of six months from the date on which it was granted.

 

   3. Each permit or certificate shall contain the title of the present Convention, the name and any identifying stamp of the Management Authority granting it and a control number assigned by the Management Authority.

 

   4. Any copies of a permit or certificate issued by a Management Authority shall be clearly marked as copies only and no such copy may be used in place of the original, except to the extent endorsed thereon.

 

   5. A separate permit or certificate shall be required for each consignment of specimens.

 

   6. A Management Authority of the State of import of any specimen shall cancel and retain the export permit or re-export certificate and any corresponding import permit presented in respect of the import of that specimen.

 

   7. Where appropriate and feasible a Management Authority may affix a mark upon any specimen to assist in identifying the specimen. For these purposes "mark" means any indelible imprint, lead seal or other suitable means of identifying a specimen, designed in such a way as to render its imitation by unauthorized persons as difficult as possible.

ARTICLE VII
Exemptions and Other Special Provisions Relating to Trade

 

   1. The provisions of Articles III, IV and V shall not apply to the transit or transhipment of specimens through or in the territory of a Party while the specimens remain in Customs control.

 

   2. Where a Management Authority of the State of export or re-export is satisfied that a specimen was acquired before the provisions of the present Convention applied to that specimen, the provisions of Articles III, IV and V shall not apply to that specimen where the Management Authority issues a certificate to that effect.

 

   3. The provisions of Articles III, IV and V shall not apply to specimens that are personal or household effects. This exemption shall not apply where:

 

   (a)   in the case of specimens of a species included in Appendix I, they were acquired by the owner outside his State of usual residence, and are being imported into that State; or

 

   (b)   in the case of specimens of species included in Appendix II:

 

      (i)   they were acquired by the owner outside his State of usual residence and in a State where removal from the wild occurred;

 

      (ii)   they are being imported into the owner's State of usual residence; and

 

      (iii)   the State where removal from the wild occurred requires the prior grant of export permits before any export of such specimens; unless a Management Authority is satisfied that the specimens were acquired before the provisions of the present Convention applied to such specimens.

 

   4. Specimens of an animal species included in Appendix I bred in captivity for commercial purposes, or of a plant species included in Appendix I artificially propagated for commercial purposes, shall be deemed to be specimens of species included in Appendix II.

 

   5. Where a Management Authority of the State of export is satisfied that any specimen of an animal species was bred in captivity or any specimen of a plant species was artificially propagated, or is a part of such an animal or plant or was derived therefrom, a certificate by that Management Authority to that effect shall be accepted in lieu of any of the permits or certificates required under the provisions of Article III, IV or V.

 

   6. The provisions of Articles III, IV and V shall not apply to the non-commercial loan, donation or exchange between scientists or scientific institutions registered by a Management Authority of their State, of herbarium specimens, other preserved, dried or embedded museum specimens, and live plant material which carry a label issued or approved by a Management Authority.

 

   7. A Management Authority of any State may waive the requirements of Articles III, IV and V and allow the movement without permits or certificates of specimens which form part of a travelling zoo, circus, menagerie, plant exhibition or other travelling exhibition provided that:

 

   (a)   the exporter or importer registers full details of such specimens with that Management Authority;

 

   (b)   the specimens are in either of the categories specified in paragraph 2 or 5 of this Article; and (c) the Management Authority is satisfied that any living specimen will be so transported and cared for as to minimize the risk of injury, damage to health or cruel treatment.

ARTICLE VIII
Measures to Be Taken by the Parties

 

   1. The Parties shall take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof. These shall include measures:

 

   (a)   to penalize trade in, or possession of, such specimens, or both; and

 

   (b)   to provide for the confiscation or return to the State of export of such specimens.

 

   2. In addition to the measures taken under paragraph 1 of this Article, a Party may, when it deems it necessary, provide for any method of internal reimbursement for expenses incurred as a result of the confiscation of a specimen traded in violation of the measures taken in the application of the provisions of the present Convention.

 

   3. As far as possible, the Parties shall ensure that specimens shall pass through any formalities required for trade with a minimum of delay. To facilitate such passage, a Party may designate ports of exit and ports of entry at which specimens must be presented for clearance. The Parties shall ensure further that all living specimens, during any period of transit, holding or shipment, are properly cared for so as to minimize the risk of injury, damage to health or cruel treatment.

 

   4. Where a living specimen is confiscated as a result of measures referred to in paragraph 1 of this Article:

 

   (a)   the specimen shall be entrusted to a Management Authority of the State of confiscation;

 

   (b)   the Management Authority shall, after consultation with the State of export, return the specimen to that State at the expense of that State, or to a rescue centre or such other place as the Management Authority deems appropriate and consistent with the purposes of the present Convention; and

 

   (c)   the Management Authority may obtain the advice of a Scientific Authority, or may, whenever it considers it desirable, consult the Secretariat in order to facilitate the decision under sub-paragraph (b) of this paragraph, including the choice of a rescue centre or other place.

 

   5. A rescue centre as referred to in paragraph 4 of this Article means an institution designated by a Management Authority to look after the welfare of living specimens, particularly those that have been confiscated.

 

   6. Each Party shall maintain records of trade in specimens of species included in Appendices I, II and III which shall cover:

 

   (a)   the names and addresses of exporters and importers; and

 

   (b)   the number and type of permits and certificates granted; the States with which such trade occurred; the numbers or quantities and types of specimens, names of species as included in Appendices I, II and III and, where applicable, the size and sex of the specimens in question.

 

   7. Each Party shall prepare periodic reports on its implementation of the present Convention and shall transmit to the Secretariat:

 

   (a)   an annual report containing a summary of the information specified in subparagraph (b) of paragraph 6 of this Article; and

 

   (b)   a biennial report on legislative, regulatory and administrative measures taken to enforce the provisions of the present Convention.

 

   8. The information referred to in paragraph 7 of this Article shall be available to the public where this is not inconsistent with the law of the Party concerned.

ARTICLE IX
Management and Scientific Authorities

 

   1. Each Party shall designate for the purposes of the present Convention:

 

   (a)   one or more Management Authorities competent to grant permits or certificates on behalf of that Party; and

 

   (b)   one or more Scientific Authorities.

 

   2. A State depositing an instrument of ratification, acceptance, approval or accession shall at that time inform the Depositary Government of the name and address of the Management Authority authorized to communicate with other Parties and with the Secretariat.

 

   3. Any changes in the designations or authorizations under the provisions of this Article shall be communicated by the Party concerned to the Secretariat for transmission to all other Parties.

 

   4. Any Management Authority referred to in paragraph 2 of this Article shall, if so requested by the Secretariat or the Management Authority of another Party, communicate to it impression of stamps, seals or other devices used to authenticate permits or certificates.

ARTICLE X
Trade with States not Party to the Convention

 

   Where export or re-export is to, or import is from, a State not a Party to the present Convention, comparable documentation issued by the competent authorities in that State which substantially conforms with the requirements of the present Convention for permits and certificates may be accepted in lieu thereof by any Party.

ARTICLE XI
Conference of the Parties

 

   1. The Secretariat shall call a meeting of the Conference of the Parties not later than two years after the entry into force of the present Convention.

 

   2. Thereafter the Secretariat shall convene regular meetings at least once every two years, unless the Conference decides otherwise, and extraordinary meetings at any time on the written request of at least one-third of the Parties.

 

   3. At meetings, whether regular or extraordinary, the Parties shall review the implementation of the present Convention and may:

 

   (a)   make such provision as may be necessary to enable the Secretariat to carry out its duties, and adopt financial provisions;

 

   (b)   consider and adopt amendments to Appendices I and II in accordance with Article XV;

 

   (c)   review the progress made towards the restoration and conservation of the species included in Appendices I, II and III;

 

   (d)   receive and consider any reports presented by the Secretariat or by any Party; and

 

   (e)   where appropriate, make recommendations for improving the effectiveness of the present Convention.

 

   4. At each regular meeting, the Parties may determine the time and venue of the next regular meeting to be held in accordance with the provisions of paragraph 2 of this Article.

 

   5. At any meeting, the Parties may determine and adopt rules of procedure for the meeting.

 

   6. The United Nations, its Specialized Agencies and the International Atomic Energy Agency, as well as any State not a Party to the present Convention, may be represented at meetings of the Conference by observers, who shall have the right to participate but not to vote.

 

   7. Any body or agency technically qualified in protection, conservation or management of wild fauna and flora, in the following categories, which has informed the Secretariat of its desire to be represented at meetings of the Conference by observers, shall be admitted unless at least one-third of the Parties present object:

 

   (a)   international agencies or bodies, either governmental or non-governmental, and national governmental agencies and bodies; and

 

   (b)   national non-governmental agencies or bodies which have been approved for this purpose by the State in which they are located. Once admitted, these observers shall have the right to participate but not to vote.

ARTICLE XII
The Secretariat

 

   1. Upon entry into force of the present Convention, a Secretariat shall be provided by the Executive Director of the United Nations Environment Programme. To the extent and in the manner he considers appropriate, he may be assisted by suitable inter-governmental or non-governmental international or national agencies and bodies technically qualified in protection, conservation and management of wild fauna and flora.

 

   2. The functions of the Secretariat shall be:

 

   (a)   to arrange for and service meetings of the Parties;

 

   (b)   to perform the functions entrusted to it under the provisions of Articles XV and XVI of the present Convention;

 

   (c)   to undertake scientific and technical studies in accordance with programmes authorized by the Conference of the Parties as will contribute to the implementation of the present Convention, including studies concerning standards for appropriate preparation and shipment of living specimens and the means of identifying specimens;

 

   (d)   to study the reports of Parties and to request from Parties such further information with respect thereto as it deems necessary to ensure implementation of the present Convention;

 

   (e)   to invite the attention of the Parties to any matter pertaining to the aims of the present Convention;

 

   (f)   to publish periodically and distribute to the Parties current editions of Appendices I, II and III together with any information which will facilitate identification of specimens of species included in those Appendices;

 

   (g)   to prepare annual reports to the Parties on its work and on the implementation of the present Convention and such other reports as meetings of the Parties may request;

 

   (h)   to make recommendations for the implementation of the aims and provisions of the present Convention, including the exchange of information of a scientific or technical nature;

 

   (i)   to perform any other function as may be entrusted to it by the Parties.

ARTICLE XIII
International Measures

 

   1. When the Secretariat in the light of information received is satisfied that any species included in Appendix I or II is being affected adversely by trade in specimens of that species or that the provisions of the present Convention are not being effectively implemented, it shall communicate such information to the authorized Management Authority of the Party or Parties concerned.

 

   2. When any Party receives a communication as indicated in paragraph 1 of this Article, it shall, as soon as possible, inform the Secretariat of any relevant facts insofar as its laws permit and, where appropriate, propose remedial action. Where the Party considers that an inquiry is desirable, such inquiry may be carried out by one or more persons expressly authorized by the Party.

 

   3. The information provided by the Party or resulting from any inquiry as specified in paragraph 2 of this Article shall be reviewed by the next Conference of the Parties which may make whatever recommendations it deems appropriate.

ARTICLE XIV
Effect on Domestic Legislation and International Conventions

 

   1. The provisions of the present Convention shall in no way affect the right of Parties to adopt:

 

   (a)   stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II and III, or the complete prohibition thereof; or

 

   (b)   domestic measures restricting or prohibiting trade, taking, possession or transport of species not included in Appendix I, II or III.

 

   2. The provisions of the present Convention shall in no way affect the provisions of any domestic measures or the obligations of Parties deriving from any treaty, convention, or international agreement relating to other aspects of trade, taking, possession or transport of specimens which is in force or subsequently may enter into force for any Party including any measure pertaining to the Customs, public health, veterinary or plant quarantine fields.

 

   3. The provisions of the present Convention shall in no way affect the provisions of, or the obligations deriving from, any treaty, convention or international agreement concluded or which may be concluded between States creating a union or regional trade agreement establishing or maintaining a common external Customs control and removing Customs control between the parties thereto insofar as they relate to trade among the States members of that union or agreement.

 

   4. A State party to the present Convention, which is also a party to any other treaty, convention or international agreement which is in force at the time of the coming into force of the present Convention and under the provisions of which protection is afforded to marine species included in Appendix II, shall be relieved of the obligations imposed on it under the provisions of the present Convention with respect to trade in specimens of species included in Appendix II that are taken by ships registered in that State and in accordance with the provisions of such other treaty, convention or international agreement.

 

   5. Notwithstanding the provisions of Articles III, IV and V, any export of a specimen taken in accordance with paragraph 4 of this Article shall only require a certificate from a Management Authority of the State of introduction to the effect that the specimen was taken in accordance with the provisions of the other treaty, convention or international agreement in question.

 

   6. Nothing in the present Convention shall prejudice the codification and development of the law of the sea by the United Nations Conference on the Law of the Sea convened pursuant to Resolution 2750 C (XXV) of the General Assembly of the United Nations nor the present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction.

ARTICLE XV
Amendments to Appendices I and II

 

   1. The following provisions shall apply in relation to amendments to Appendices I and II at meetings of the Conference of the Parties:

 

   (a)   Any Party may propose an amendment to Appendix I or II for consideration at the next meeting. The text of the proposed amendment shall be communicated to the Secretariat at least 150 days before the meeting. The Secretariat shall consult the other Parties and interested bodies on the amendment in accordance with the provisions of subparagraphs (b) and (c) of paragraph 2 of this Article and shall communicate the response to all Parties not later than 30 days before the meeting.

 

   (b)   Amendments shall be adopted by a two-thirds majority of Parties present and voting. For these purposes "Parties present and voting" means Parties present and casting an affirmative or negative vote. Parties abstaining from voting shall not be counted among the two-thirds required for adopting an amendment.

 

   (c)   Amendments adopted at a meeting shall enter into force 90 days after that meeting for all Parties except those which make a reservation in accordance with paragraph 3 of this Article.

 

   2. The following provisions shall apply in relation to amendments to Appendices I and II between meetings of the Conference of the Parties:

 

   (a)   Any Party may propose an amendment to Appendix I or II for consideration between meetings by the postal procedures set forth in this paragraph.

 

   (b)   For marine species, the Secretariat shall, upon receiving the text of the proposed amendment, immediately communicate it to the Parties. It shall also consult inter-governmental bodies having a function in relation to those species especially with a view to obtaining scientific data these bodies may be able to provide and to ensuring co-ordination with any conservation measures enforced by such bodies. The Secretariat shall communicate the views expressed and data provided by these bodies and its own findings and recommendations to the Parties as soon as possible.

 

   (c)   For species other than marine species, the Secretariat shall, upon receiving the text of the proposed amendment, immediately communicate it to the Parties, and, as soon as possible thereafter, its own recommendations.

 

   (d)   Any Party may, within 60 days of the date on which the Secretariat communicated its recommendations to the Parties under subparagraph (b) or (c) of this paragraph, transmit to the Secretariat any comments on the proposed amendment together with any relevant scientific data and information.

 

   (e)   The Secretariat shall communicate the replies received together with its own recommendations to the Parties as soon as possible.

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