REPORT INTERNATIONAL DISASTER RESPONSE LAW AUDIT WORKSHOP Venue: Lansmore Hotel, Gaborone, Botswana 12 th November 2013
TABLE OF CONTENTS 1.0 Background 4 What is Disaster Law and International Disaster Response Law (IDRL) 4 1.1 What is Disaster Law and International Disaster Response Law (IDRL) 4 1.2 The IDRL Guidelines and Model Act on IDRL 5 1.2 Objectives of the workshop 5 2.0 Opening session 6 2.1 Welcome remarks -Titus L. Makosha, Deputy Secretary General, Botswana Red Cross Society 6 2.2 What is disaster law and why is it important? 7 2.2 What is disaster law and why is it important? 7 2.3 Introduction to IDRL: why does the legal framework matter? Ms. Ida Marstein, Disaster Law Coordinator for Africa, International Federation of Red Cross and Red Crescent Societies (IFRC) 9 2.4 Summary-Keynote Address- Opening Remarks by Dr Kennedy Masamvu-Disaster Risk Reduction Unit - SADC Secretariat 10 2.5 Summary of IDRL Audit Report -Mrs. Elizabeth Macharia- Mokobi-Consultant & University of Botswana Lecturer in Law 11 2.5.1 Accession and domestication of IDRL treaties 11 2.5.2 Legal and Institutional Framework 11 2.5.3 Legal status of foreign entities 11 2.5.4 Border control requirements 12 2.5.5 Transportation during disasters 12 2.5.6 Freedom of movement, security and additional facilities 12 3.0 Plenary discussion: questions on the IDRL audit report 12 3.1 Plenary discussion: Questions for discussion relating to the IDRL Audit 14 2
3.2 Group feedback on questions 3 and 4 16 4.0 Closing remarks by Frank Ramsden-Member of Parliament Maun east & Chairperson Parliamentary Committee on Climate Change 17 5.0 Workshop Action items 18 6.0 Annexure 19 Annex 1: Opening Remarks by Dr Kennedy Masamvu-Disaster Risk Reduction Unit - SADC Secretariat (Full speech) 19 Annex 2: International Disaster Response Law (IDRL) in Botswana: A study on legal preparedness for facilitating and regulating international disaster assistance Mrs. Elizabeth Machari Mokobi, Consultant, Law Lecturer, University of Botswana (Full presentation) 23 Annex 3: Programme, International Disaster Response Law Audit Workshop 30 Annex 3: Programme, International Disaster Response Law Audit Workshop 30 Annex 4: Participants list 31 Annex 4: Participants list 31 Components, work and history of the Red Cross & Red Crescent (RC/RC) Movement 33 Annex 5: Components, work and history of the Red Cross & Red Crescent (RC/RC) Movement 33 3
1.0 Background On the Tuesday 12 th November 2013, Botswana Red Cross Society (BRCS) jointly with the International Federation of Red Cross and Red Crescent Societies (IFRC) convened a stakeholder s workshop to provide feedback on the International Disaster Response Law (IDRL) Audit undertaken in Botswana following recommendations made in the first stakeholder consultative meeting to propose IDRL for Botswana on the 5th June 2013 at Cresta President Hotel in Gaborone, Botswana. BRCS led preliminary discussions to follow upon advocacy initiatives made by the 31 st International Conference of the Red Cross and Red Crescent where state parties were called to strengthen their national legal frameworks for the facilitation and regulation of international disaster assistance/response. The increase in the number and impact of natural disasters over the years, increase in number of international humanitarian actors willing to help during major disasters often presents complications in regulating international humanitarian assistance. That precipitated the advocacy for IDRL by the Red Cross movement. Delegates in the 5 th June 2012 IDRL workshop proposed an audit of the current legal framework in Botswana to assess the gaps in IDRL. BRCS volunteered to initiate the process of the audit. IFRC pledged its support whilst the National Strategy Office indicated its willingness to participate in the audit process, hence the purpose of resuming this follow-up workshop. Participants in this follow-up workshop were delegates from the Ombudsman, UNICEF, Parliamentary Climate Change Committee, Southern Africa Development Community (SADC), IFRC, Botswana Bureau of Standards, Botswana Unified Revenue Service (BURS), Ministry of Lands and Housing, MSB, Media,, Botswana Press Agency, Air Botswana, Ministry of Trade and Industry (Department of International Trade), National Strategy Office, and Gaborone City Council. See participants list attached as annex 4). This document presents a summary of the proceedings of the meeting. It comprises of action items and presentations made. 1.1 What is Disaster Law and International Disaster Response Law (IDRL)? Over the last twenty years, the number of disasters has nearly doubled worldwide due to the effects of climate change. We are also beginning to see droughts, storms and floods of greater intensity, occurring in new areas and affecting more communities. Most countries do not have special laws in place for facilitating and regulating international relief, and even if they do they are not always implemented. The result is a common set of problems, including unnecessary taxation or delays at customs, and restrictions 4
in the operation concerning the use of communication equipment and a lack of overview over the quality of the assistance delivered to the affected communities. Other issues arise out of the growing numbers and greater variety of international humanitarian actors, which make it much more difficult for the affected State to coordinate the assistance and to monitor the type and quality of the relief offered to its population. It is widely accepted that the poor and marginalized will bear the brunt of these developments if we do not pass to action, both to reduce disaster risks and to be better prepared for responding to disasters when they strike. As affirmed in the Hyogo Framework for Action, law is a critical tool for empowering such action and adapting to a changing world. Every government has the possibility to think ahead by preparing its legal framework so as to facilitate the import, export and transit of humanitarian aid, as well as to monitor and coordinate the performance of humanitarian actors. 1.2 The IDRL Guidelines and Model Act on IDRL The IFRC Disaster Law Programme seeks to reduce human vulnerability by promoting legal preparedness for disasters, in particular with regard to international assistance. Since 2001, the IFRC has been leading research and consultations on disaster law issues, with a special focus on the regulation of international disaster relief operations. On the latter issue, the IFRC and its members have gathered existing international norms, sponsored over two dozen studies in various parts of the world and consulted globally with governments, humanitarian organizations and experts in disaster management and law. It has developed several tools and trainings to support government in their preparation for disastrous events. Notably, these include the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (the so-called IDRL Guidelines ), which were adopted by the State Parties to the Geneva Conventions at the 30th International Conference of the Red Cross and Red Crescent and the Model Act for the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance ( Model Act on IDRL ), developed in partnership by the IFRC, UN OCHA and the Inter-Parliamentary Union, adopted in March 2013. For more information please visit our website at www.ifrc.org/dl 1.2 Objectives of the workshop Launch the IDRL in Botswana Audit report on legal preparedness for facilitating and regulating international disaster assistance which has been produced by a consultant in the framework of a project between BRCS and IFRC. Present the findings of the legal research mentioned above, and the recommendations in the report to stakeholders in disaster risk management in Botswana 5
To develop a shared understanding of potential legal problems areas in international disaster assistance and of key norms and tools, particularly where they apply in Botswana. Provide participants of the workshop with a general understanding of the IDRL guidelines and other international disaster response and regional instruments for international disaster response Explore the need and possibilities for Botswana to adapt existing tools and/or legislations relating to border crossing disaster assistance to Botswana Facilitate discussion amongst relevant stakeholders in Botswana about possible steps to strengthen legal preparedness for disasters in Botswana, including the potential of using IDRL guidelines and the IDRL Model Act to develop new legal instruments for improving facilitation and regulation of border crossing disaster assistance in Botswana 2.0Opening session 2.1 Welcome remarks -Titus L. Makosha, Deputy Secretary General, Botswana Red Cross Society In his remarks Makosha apologised for the absence of the BRCS Secretary General, Ms. Mabel Rammekwa who is in Australia attending the General Assembly of the Red Cross and Red Crescent Movement together with some members of the BRCS Board. He gave the following speech. Director of Ceremonies, Ladies and Gentlemen; we gather here in Gaborone for the third time within the course of a year, to deliberate on International Disaster Response Law (IDRL) through the support of the IFRC. In June last year, all relevant stakeholders in Botswana were invited to a training workshop on IDRL at the President Hotel, co-hosted by Botswana Red Cross Society and IFRC. A second similar workshop was hosted in October last year, and it invited all relevant stakeholders within the SADC region to Phakalane Resort. Interestingly, this time period and activities coincides with the relocation of the IFRC Southern Africa Regional Office into Botswana. Could this be the good return on investment Botswana is enjoying as a result of hosting the IFRC? As you may all be aware, the Red Cross Red Crescent Movement is the oldest and the biggest humanitarian movement worldwide. Disaster response continues to represent the largest portion of our work, with assistance to millions of people annually ranging from refugees to victims of natural disasters. 6
Provision of emergency relief to refugees and victims of disasters has been a key activity of the International Federation and its member National Societies for more than 80 years. Botswana Red Cross Society in particular, has been instrumental in providing humanitarian services from as far back as 1948, as a branch of the British Red Cross Society. It provided health care, first aid services and distribution of relief. Its services have since expanded geographically and product-wise to address vulnerabilities as they come. BRCS works very closely with government in Health and Care Services, Rehabilitation of People with Disabilities, Disaster Risk Reduction and Emergency services, Refugee Health and Psychosocial support etc. The sharp increase in the number of natural disasters worldwide in recent years has prompted the Red Cross movement to devote more attention to Disaster preparedness activities. The aim being to make Red Cross Societies and communities more aware of the risks they face, how to reduce their vulnerability, and how to cope when disaster strikes. For instance, the Botswana Red Cross and other National Societies in Southern Africa are piloting Zambezi River Basin Initiative, which hopes to build community resilience and improve community based disaster risk reduction through amongst others: Strengthening livelihood sources Building capacity on disease management through Community Based Health and First Aid Community education on climate change and early warning system A cost-benefit analysis has actually shown that it is three times cheaper to prepare for disasters than to respond. 2.2 What is disaster law and why is it important? So why does the Red Cross consider Disaster Law, the topic of today, to be so important? That is because Disaster Law is directly linked to reducing human suffering. It is vital to save time, enhance the efficiency of international assistance and ensure that the assistance responds to the real needs of communities and is well coordinated to maximize all response efforts. Disaster Law refers to legal and regulatory frameworks that apply to international disaster assistance. In other words, it is the law that applies to disaster response operations that cross international borders. These operations involve all sorts of laws, like laws on immigration of humanitarian staff and laws on import taxation. 7
After years of intensive research and consultations on problems and best practice in the regulation of international disaster relief, the IFRC developed the IDRL Guidelines to support governments to make the influx of international humanitarian actors more coordinated, more efficient and more effective. The Governments adopted these guidelines at the 31 st International Conference of the RCRC movement, held in 2011. Botswana government and BRCS co-pledged to undertake this initiative and the country was therefore amongst the first in Africa to explore further the benefits of IDRL as a legal preparedness tool against disasters. The June 2012 IDRL workshop held at President Hotel provided insights to the stakeholders on the subject matter; who then resolved that there was further need to audit laws of Botswana and assess their adequacy in terms of legal preparedness. The report shall be presented today and the project was made possible through the support of IFRC and our volunteer Consultant Elizabeth Macharia-Mokobi from the University of Botswana. I am hopeful that we shall critically interrogate the report and punch holes where we think there is need. Please feel free to do so. It is worth noting that the hope of the June 2012 participants in resolving for an audit was that this would serve as the first step to inform the country whether there were any gaps that would need for IDRL reviews or otherwise. If there are gaps, the expectation would be that as per resolution 3 of the 2012 workshop; relevant stakeholders would converge and move forward with the process of strengthening existing legal system or develop new legal instrument... Let me thank you for honouring our invitation. It is our greatest hope that the work done so far will influence our future in terms of legal preparedness and that your participation shall go a long way it putting Botswana in good books when we report achievements on IDRL at the 32 nd International Conference of 2015, which shall also coincide with culmination of MDGs. When addressing the workshop participants the BRCS Deputy Secretary General Mr. Titus Makosha said the following a series of workshops have been held preceding today s meeting. The last one was in June 2012. The result of the consultations culminated into today s meeting and the compilation of the IDRL in Botswana. In his remarks DSG, submitted an apology for the absence of the BRCS Secretary General, Ms. Mabel Rammekwa who is in Australia attending the General Assembly of the Red Cross and Red Crescent Movement together with the board. BRCS has been deliberating about IDRL in Botswana for almost a year. 2 workshops have been hosted on the subject by BRCS jointly with the IFRC and with SADC. The 8
proximity of IFRC in Botswana is bringing dividends as BRCS IS receiving technical support to co-host meetings and do work for the nation. A background of the RC/RC movement was given to the including the auspices of IFRC and its membership f National Societies and ICRC. The role of the components of the movement was also explained. IFRC-International Natural Disaster, ICRC-conflicts. The role of the International Conference was explained as a platform for the RC/RC movement to meeting with government to discuss challenges in the humanitarian field. In the 2011, 31 st International Conference government agreed that guidelines on IDRL need to be developed in light of the increase and intensity of current disasters. As a National Society, BRCS and IFRC agreed to pursue possibilities of working on IDRL to advocate for the enactment of IDRL in Botswana. It was agreed in the workshop of 5th June 2012 that BRCS must conduct and an IDRL audit. BRCS with the help of the IFRC and a volunteer legal advisor conducted an IDRL audit of Botswana. The document is not legal but just an audit. Another resolution at the meeting was that once the audit is conducted a committee must be formed that will assist in the drafting/advocacy for IDRL laws for Botswana focusing on the gaps that have been identified by the audit. The MGDs are coming to an end, and we remain accountable to what has been achieved. -End 2.3 Introduction to IDRL: why does the legal framework matter? Ms. Ida Marstein, Disaster Law Coordinator for Africa, International Federation of Red Cross and Red Crescent Societies (IFRC) A brief background was presented of the IDRL Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance. From 2001, the IFRC has been leading research and consultations on disaster law issues, emphasizing laws and rules of international disaster response. Using its movement network globally, the IFRC conducted several researches and involved key people in disaster response from the RC/RC movement and other partners. This led to the adoption of the IDRL Guidelines by the International Conference in 2007. Marstein introduced participants to components of the RC/RC Movement and the urgency to address the area of international disaster law in Africa. 2 examples were given relating to the increase of international responders in major disasters such as the Asia Tsunami where 200 NGOs provided aid whilst 500 responded during the Haiti disaster. Examples showed of how lack of regulations can prevent international disaster relief, for example such as delays in arrival of rescue teams, administrative complications which often delay arrival of flights. This was followed by an overview of the major 9
international instruments that govern disaster law, setting out the key international and regional examples and explaining their content and relevance. Although there is no general disaster management treaty, there are international legal instruments that address elements of disasters. Hence, the Tampere Convention on the use of telecommunication in disasters was addressed, as well as annexes in the Istanbul and Kyoto customs agreements that address import of humanitarian goods. Of note is the AU Convention for Protection and Assistance of Internally Displaced Persons (IDPs) in Africa, also known as the Kampala Convention, which is not yet in force but which forms a significant example of international treaty relating to disasters in Africa. However, overall the international legal framework does not address common regulatory barriers adequately. The IFRC has developed the Guidelines on the domestic facilitation and regulation of international disaster relief and initial recovery assistance (also known as the IDRL Guidelines ) and the IDRL pilot Model Act to support governments in preparing their legal systems for international disaster response cooperation. These tools introduce the issues that governments should anticipate once international humanitarian actors enter the territory of the affected state. These issues include regulatory aspects of obtaining legal personality, opening bank accounts, security, insurance, monitoring of the quality of aid and coordination with domestic authorities. It is recommended that governments grant certain facilities to international actors to avoid these issues; however, such facilities should only be granted on the basis of eligibility and a constant monitoring of the quality of assistance. 2.4 Summary-Keynote Address- Opening Remarks by Dr Kennedy Masamvu-Disaster Risk Reduction Unit - SADC Secretariat On behalf of the SADC secretariat Masambo thanked Botswana Red Cross Society for the invitation citing that the outcome of the meeting will help regional and international dimensions in dealing with international disaster assistance. SADC acknowledges the role of National Societies. Role of SADC is to facilitate the role of best practices in the region. Pillar 1 of the Kyoto Framework of Action highlights the importance of preparedness and existence of legal frameworks to address disaster risk management. At National level SADC is working with member states to domesticate IDRL. SADC has been affected by disasters precipitated by climate variability. There is a new emerging trend of chronic food insecurity, migration and emerging urbanized illegal settlement and HIV/AIDS. Given this background SADC welcomes the initiative of IDRL audit in Botswana. Several countries are attempting to domesticate the IDRL laws and are at different levels of implementation and they are Malawi, Namibia, Mozambique, and Zimbabwe (See full address notes attached as annex 1). 10
2.5 Summary of IDRL Audit Report -Mrs. Elizabeth Macharia- Mokobi-Consultant & University of Botswana Lecturer in Law Mokobi gave a summarized version of the IDRL audit report which highlighted the strengths, and gaps of IDRL in Botswana. The document presents the fragmented legal frameworks of the Botswana IDRL in one document which makes it easier for reference. The highlight of the report was that the fragmented nature of IDRL in Botswana will lead to difficulties in corporation in case of large scale disasters. The report is divided into 6 focus areas which are discussed and recommendations for action are made thereof. They are Accession and domestication of IDRL, Legal and Institutional Framework, Legal status of foreign entities, Border control requirements, Transportation during disasters, Freedom of movement, security and additional facilities. 2.5.1 Accession and domestication of IDRL treaties This section highlighted the conventions that Botswana has acceded to and those which it has not. It was advised that in order for the conventions to become legally binding to states they must be domesticated. Tampere Convention: At the time of the report Botswana had not domesticated the convention Temporary admission convention Not acceded to 2.5.2 Legal and Institutional Framework This section highlighted Botswana legislation on Disaster Risk Reduction (DRR). Article 8 of the IFRC, IDRL guidelines recommends that a government has to regulate the conduct of international actors in Disaster response. The absence of this leaves Botswana vulnerable and open to admission of wrong actors in humanitarian response. Mokobi advised that local institutions are available as promoted by the National Disaster Management Plan (NDMP) however they are not statutory bodies. The report recommends the highlight of the roles of BRCS in DRR response and planning in Botswana. 2.5.3 Legal status of foreign entities Foreign entities operating in Botswana will not be immune from legal suit unless given those under the diplomatic immunities Act. The complexities of organizations registered internationally to register in Botswana due to the lack of regulations of recognition in Botswana was also highlighted in the report. The IDRL guidelines would have made recommendations. Such organizations have to register normally which may take a maxim of 14 days which will slow disaster response. The lack of prompt guidelines for recognition of legal entities in Botswana is also prohibitive. The requirements of work and resident permits, locations to rent will be taxing for people coming in to assist in the country. 11
2.5.4 Border control requirements The section makes recommendations for VAT, vehicle registration, work and residents permits, importation of animals, income tax, Visas for international travelers coming in Botswana for disaster relief. A special disaster visa was recommended which can be linked to the work permit. 2.5.5 Transportation during disasters There are no regulations governing relief flights. This section of the report makes special recommendations regarding flights, vehicles during disasters. 2.5.6 Freedom of movement, security and additional facilities The report makes recommendations for more accounting protocols and safe guards to be put in place to ensure that donors are assured of their return on investment from NGOs that they fund. It finally recommends the enactment of a national disaster risk management act. (See full presentation attached as annex 2) 3.0Plenary discussion: Questions on the IDRL Audit report The workshop went into plenary session where participants commented on the IDRL audit report after the consultant report. They made the following observations 1. The time frame of the consultancy is not clear in the report. If it was it will help participants to appreciate at what time period comments and recommendations refer to in the report refer to. 2. Key Ministries are not present in the workshop. When there is a disaster there are provisions that are made to ensure that things are expedited faster. The answer was that Botswana is doing much more and exceeding what it is s obliged to do. And the enactment laws that guide the process will be useful. 3. Engage Political parties in the debate on the discourse for lobbying for IDRL as political leaders are legislators. 4. Botswana is using a snail pace in domesticating conventions although we have seen a number of incidents happen in the country where people lost their lives. 5. The report is not mentioning the reasons why the government has not domesticated or acceded to the treaties. There are issues that will affect the security of the country if Botswana opens its borders as recommended by the audit regarding immigration matters. 6. The consultant did a good job as she has been able to identify the gaps concerning IDRL in Botswana and made recommendations. The incorporation of what we have in a law will be good for the nations. 12
7. If Botswana has its own laws that will address issues of regulations of procedure then domestication of treaties may be set aside. 8. One of 5 th June 2012 workshop recommendations was to meet with legislators to discuss with them specific areas of responsibility pertaining to the audit. Has that been done? The answer was that this was not done as it was not part of the terms of reference. 9. The stakeholders in the 5 th June 2012 workshop requested information about what Botswana is doing in terms of disasters. The IDRL Audit report is not touching on that. It does not mention whether the current Disaster Risk Reduction (DRR) policy, its gaps and how they can be addressed. 10. The consultant was congratulated further for the IDRL audit which is informative and insightful. Disaster affects vulnerable groups a lot more than other groups e.g. Cholera outbreaks in the country. There are no structures for rehabilitation that are in place in the country. Furthermore there is no recommendation for information sharing and data management that is available to all which many actors can base their interventions during disasters. There has been many outbreaks of diseases and absence of coordinated data access to make both locals and the international community access information. 11. The strength of BRCS to undertake high level advocacy on issues of national interest such as IDRL issues cannot left to the confines of BRCS. It was clarified that BRCS has been established by an act of parliament. The humanitarian portfolio remains a responsibility of government. BRCS serves as an auxiliary in the humanitarian actions of government and cannot be openly in opposition of government. The Red Cross has to continuously maintain a neutral standing. The neutrality of the Red Cross is very fundamental in its work as the movement is often expected to work in conflict situations. At that time the organization is expected to be neutral and not representing the government. Advocacy is done in forums that are conducive to accommodate the neutrality element. Such forums include addressing parliamentarians, full councils. BRCS has not yet done enough and will do more to educate. BRCS does not use muscle but adopts the principle of humanitarian diplomacy in its work. 12. The purpose of the meeting is to get different views in order to improve future interventions. Our intention is to involve many actors. The idea is to put our view on the table. If there is an interest to engage in legislative enactment IFRC/Red Cross will be happy to help. A similar exercise has been developed in Namibia and Rwanda. We welcome more collaboration with stakeholders present. 13
13. An inquiry was made of whether the IDRL Audit report is final and if so those who approved it. The inquiry was raised on the basis that the audit is an undertaking that was sanctioned by a collective of organizations that were consulted regarding the need to IDRL in Botswana. The same stakeholders were supposed to see the draft report and comment on it before printing. Furthermore the participant noted that the stakeholders saw the report for the first time hence it cannot be final. In case of Ministries the final decision regarding the way forward relating to some of the recommendations of the audit report will have to be made by the Permanent Secretaries. Stakeholders therefore wish to input into the report before its finalized. The response was that the audit report is a desktop study. 14. This is a report of the assessment. The next step is now a consultative process that will constitute engaging the relevant departments. Stakeholders were encouraged to raise anything that is deemed lacking in the report. The next step is a consultative process. 15. In process planning, the agency that has an issue to address calls stakeholders and also proofs beyond reasonable doubt that there are gaps that need to be addressed. At this moment there is no problem in the process that BRCS has undertaken up to the release of the IDRL audit report. 16. The procedure of the process is lacking. Stakeholders expected feedback on the report and cannot associate themselves with the current IDRL audit report without feedback that they previously gave. Stakeholders had expected that BRCS will bring preliminary results/findings for comments 3.1 Plenary discussion: Questions for discussion relating to the IDRL Audit Participants were broken into groups to answer the following questions relating to their experience in disaster response in Botswana and the IDRL audit report which they answered and reported in the plenary. Below is feedback on the plenary and questions answered by participants who used some organizations as examples. Question 1 In your experience, how would your agency respond at a time if Botswana faced a major disaster and requested international disaster assistance? E.g. importing medicine, relief items, rescue dogs, obtaining of work permits for medics and engineers, legal status of organizations. Air Botswana will be responsible for facilitating air transport including logistical arrangements of air freight on the ground, transporting personnel, fuelling etc. Air Botswana cannot issue landing rights. At the present stage Air Botswana is not in a position to handle a disaster of a large magnitude. Botswana cannot depend on Air Botswana at this stage. 14
The Ministry of Labour and Home Affairs will have to issue visas for entry into Botswana and anyone that enters. Botswana Defense Force will be responsible for providing relief materials including tents, transporting relief officers, provide personnel such as medical officer (Nurses), Mobile clinics and all transport facilities that maybe required. The army is mandated to operate both within the jurisdiction of Botswana and outside at the directive of the President. During major disasters foreign military may want to come in and assist Botswana can that be allowed? Botswana Red Cross Society response to a fire in Parakarungu: The goods will be coming Question 2 from Ethiopia. The BRCS will have to liaise with the Ministry of Trade to vet the goods with an invoice of the goods. The department of international Trade will refer to their tariff guide and which organizations are exempted from VAT then issue a rebate certificate. The Department of International trade will write to Ministry of Foreign Affairs, Civil Aviation Authority Botswana (CAAB) to inform them of the coming flight with the goods. CAAB will provide landing rights as a regulatory authority. The whole process will go smoothly if agencies receiving goods engage the right Ministries. It was emphasized that we must always prepared because the disasters may have destroyed everything leaving no option Share your experiences in disaster response and consider whether you have met any of the challenges described in the previous sessions (legal obstacles, lacking clarity of who is responsible for what, quality problems of aid delivered coordination problems, etc.) One group observed the following about Botswana in relation to the question Lack of understanding of disaster laws Lack of role clarity in dealing with disasters Poor coordination. E.g. CAAB does not have a disaster plan that recommends who is responsible for what. There is no emergency situation plan. Fragmented legislation is a problem Outdated legislation (E.g. Control of goods and services) There is no proper structure that defines responsibilities. At district level the office of District Commissioner keeps goods but it does not always have goods. NDMO does not always have clear communication lines. There is no timeframe for collection of relief items from victims. 15
There is no time frame for collection of relief items back from beneficiaries (E.g. Tents). This leads to some of the items been forcefully taken away from beneficiaries leading to complaints of not being treated humanely. BDF used the Shakawe and Satau experience in 2012 but had the following problem Questions 3 (Communication failure, delayed response due to unclear protocol, shortage of health workers, shortage of relief materials, lack of clear protocol regarding collections of tents from beneficiaries) Do you consider that any of the aspects of the IDRL Audit report reflects the practice in your area of responsibility? Which aspects do and which do not? Questions 4: Discuss the 4 main recommendations of the IDRL Audit report below (p. 11) Botswana should consider to accede to and domesticating relevant treaties in disaster response law Botswana should consider enacting national Disaster Risk Management legislation in order to provide a legal and institutional framework for DM In such a DRM Act, Botswana should consider enacting provisions for facilitation and regulation of international disaster assistance. Clear procedures for receiving of international disaster assistance and coordination of national disaster relief efforts with international disaster relief efforts should be included in the National Disaster Risk Management Plan. 3.2 Group feedback on questions 3 and 4 We need to understand the procedure for developing IDRL. It s a long process that engages various stakeholders. Legislation must be enacted to avoid future problems so that proper laid down structures to respond to disasters can be put in place. The recommendations of the audit report were highly relevant as Botswana is not far from enacting disaster legislation because NDMO is not far from submitting a proposed draft of legislation. Invest in capacitating communities to aid post disaster recovery. Communities are highly likely to be left without coping strategies and hence the importance of empowerment of communities to cope. 16
BRCS must coordinate or serve as a point of contact for international organizations especially NGOs that plan to offer disaster relief in Botswana. BRCS must liaise with the National Disaster Management Officer (NDMO) as it has recently been working on a national disaster risk reduction strategy. BRCS must request the strategy and circulate because it can serve as a reference document when reviewing the IDRL Audit report. The protocol of distributing the strategy may have to be determined with the NDMO. It is still at draft level. The IDRL Audit report and National Disaster Strategy are separate documents. The Strategy makes recommendations that will prevent the use of IDRL in future as it recommends strategies for disaster preparedness, response and recovery whilst today s workshop is discussing IDRL. If the strategy is well implemented then the IDRL will never be invoked. 4.0 Closing remarks by Frank Ramsden-Member of Parliament Maun East & Chairperson Parliamentary committee on Climate Change The purpose of today s meeting is a discussion relating to the enactment of disaster laws. A disaster is an emergency situation that may require emergency intervention. We cannot always depend of the Head of State to make some decisions. Once the law is available reference can be made to it during emergencies. The Red Cross is moving in the right direction. It s an auxiliary body and is not an NGO. Botswana Red Cross Society (BRCS) used to have branches in the past and some of them are dead now. We only get to see the Red Cross when there is a visit by the BRCS from headquarters in Gaborone to the rural areas. We must be wary of duplication of efforts. It may make sense to consider giving the Red Cross the resources it requires operating rather than duplicate efforts. When you follow what s happening around the world, human-being has different ways to cope with disasters. They have traditional knowledge systems that help them to cope. E.g. there are people that were born in the Okavango Delta. There are people born and bred in the Okavango Delta who prefer to reside along the river because they know how the water moves around. In some areas people forced government to allocate them land along the river bed unfortunately the river came back. In the past our forefathers built their houses and made the doors face the West because strong winds used to come from the South East. These are strategies that people do not implement today even when building their own contemporary houses. The meeting today is a step in the right direction. Legislators can enact laws only if advocacy initiatives continue. Batswana are encouraged to volunteer in large numbers for organizations such as Botswana Red Cross Society as many do not do so because the frequency of disasters affecting the country is much lower. 17
5.0 Workshop Action items 1. Stakeholders present in the workshop will review the audit report and give BRCS feedback within one month (7 th December 2013). Feedback can be sent to the email records@botswanaredcroos.org, kefilwe@botswanaredcross.org 2. BRCS will print the final report after reviewing and incorporating stakeholder comments 3. The final report will be named, Edited version 4. The comments from the workshop and the draft Audit report will be sent to the Treaties committee in the Ministry of Foreign Affairs and International Cooperation, NDMO and other stakeholders (BRCS secured a slot in the November 2013 National Disaster Technical Committee (NDTC) to present the IDRL Audit report. 18
6.0 Annexure Annex 1: Opening Remarks by Dr Kennedy Masamvu-Disaster Risk Reduction Unit - SADC Secretariat (Full speech) Representatives of Government Ministries and Departments Representatives from the National Disaster Management Office Representatives from International Federation of Red Cross and Red Crescent Societies (IFRC) and Botswana Red Cross Society (BCRS) Representatives from the United Nations, Humanitarian Actors, and All Stakeholders Ladies and Gentlemen Fellow Participants Director of Ceremonies Allow me to start by thanking the Botswana Red Cross Society and the International Federation of Red Cross and Red Crescent Societies (IFRC) for bringing us here today so that we can discuss disaster risk management issues, with a focus that is often overlooked - namely the border-crossing/international perspective. On behalf of the SADC Secretariat, I also wish to thank the organizers for inviting the SADC Disaster Risk Reduction Unit to participate at this very important review workshop. Although this is a national consultative forum, its outcomes could have regional and international dimensions, as it will define how Botswana as a nation will interact with its neighbours and the international community on disaster response issues. While the focus of this exercise is to gauge how the current legislative frameworks in Botswana can best facilitate the movement of disaster relief assistance into the country, we must also consider the reverse whether Botswana as a member of the SADC and the international community has sufficient legal frameworks to facilitate the provision of relief assistance to its neighbours foremost, and 19
to the international community at large. The provision of relief assistance to Somalia by Botswana in 2012 is a case in point. Ladies and gentlemen On behalf of SADC and the DRR Unit in particular, let me acknowledge the pioneering work of the IFRC, who for the last twelve years, have been leading research and consultations on disaster law issues, with a special focus on the regulation of international disaster relief operations. This research is very valuable in our field where the work often requires us to respond rapidly, and we often do not have time to look at the bigger picture. And also to acknowledge the role of the national societies who have facilitated the roll out of these guidelines and laws at the operational level at country level. The role of SADC is to facilitate the implementation of programmes in Member States, and to provide a forum for the exchange of experiences and best practices among Member States. It has been observed that most countries in the SADC region (and other parts of the world) do not have special legal frameworks for facilitating and regulating international disaster relief. Pillar 1 of the Hyogo Framework for Action - the internationally recognised framework for implementing disaster risk reduction - highlights the need for establishing and strengthening of legal frameworks to ensure that preparedness and response (Pillar 5 of the HFA) take place in an effective and equitable manner without regulatory challenges. SADC therefore welcomes this initiative by the IFRC, which is seen as filling this gap or need in disaster risk management. All governments need to be proactive in disaster preparedness and response by ensuring that its legal frameworks are adequate to facilitate the importation, exportation, movement and transit of humanitarian assistance, as well as monitor and coordinate the performance of humanitarian actors, during and after the emergencies. The National Red Cross Societies, with support from IFRC, are seen by Member States as partners in disaster risk management, and are among the first responders during disaster response. At the regional level, SADC is collaborating with the IFRC to facilitate the domestication of international disaster response laws in SADC Member States. Ladies and gentlemen As you are aware, the SADC region is prone to a variety of hazards and disasters that constantly pose a threat to our communities and socio-economic investments. It has been established that over the last 20
twenty years, the number of disasters has nearly doubled worldwide, and their frequency and intensity has been increasing, partly due to the effects of climate variability and change. In addition, we have observed the emergence of new risks and challenges associated with intra/ interregional migration, often in search of better livelihoods, but creating social conflicts and emergencies; rapid urbanization and the mushrooming of unplanned settlements in disaster prone areas; regionwide disease epidemics; HIV & Aids; climate change and chronic food insecurity. These, often occurring as complex emergencies, sometimes require international interventions. This increase in disasters across the world has not spared Botswana or its neighbouring countries, and indeed all SADC Member States. SADC therefore welcomes warmly the initiative of Botswana Red Cross Society and the IFRC to gather such a wide variety of stakeholders who all are relevant for efficient disaster risk management and response, to deliberate on these important issues. This workshop is bringing together all the relevant disaster risk reduction stakeholders from different Government Ministries, Departments, Offices, Agencies, NGOs and Private Sector Organizations - who all will play a critical role at the time when a disaster hits the country. Director of Ceremonies At the SADC regional level, we have started consultations with Member States, partners and stakeholders on the need to develop a regional disaster response humanitarian framework and strategy that ensures that SADC Member States develop a capacity to respond to disasters in the region and beyond. The strategy will ensure that SADC Member States assist each other at the time of a disaster, either as recipient or contributor to another SADC Member State, which by its very nature involves border-crossing international disaster relief assistance. The introduction of the IDRL Guidelines in SADC Member States is seen as an important step towards harmonizing disaster response laws that facilitate international/border crossing of disaster relief between/ among countries in this region. Currently a number of SADC countries are in the process of domesticating IDRL laws into their statutes, but are at different levels of implementation these include Namibia, Mozambique, Malawi and Zimbabwe, among others. The IDRL Guidelines represent a full set of recommendations of a system for facilitating such border-crossing assistance. SADC supports the approach taken in these Guidelines, and considers them as a step towards harmonizing disaster response laws in the region. 21
In order to deal with cross-border disaster response collaboration, SADC Member States are already developing Memoranda of Understanding with their neighbours - and these will go a long way towards strengthening cross-border collaboration in disaster risk management. Director of Ceremonies On this note, SADC looks very much forward to hearing about the findings of the report that will be launched today on International Disaster Response Law (IDRL) in Botswana - a study on legal preparedness for facilitating and regulating international disaster assistance that has been commissioned by Botswana Red Cross Society. I wish all participants fruitful deliberations in this workshop. It will be very interesting to discuss what are the challenges facing the delivery of disaster relief here in Botswana. We come from many different agencies and surely have different experiences related to disaster risk management and response. This is an excellent opportunity to learn from each other and together find practical solutions that will make us more prepared to handle future disasters in Botswana. Therefore, I encourage you all to participate actively and use this opportunity to share your perspectives on what you consider as challenges in disaster risk management and response and what may be appropriate measures to overcome those challenges. It is now my honour to declare the workshop OPEN. I thank you. 22
Annex 2: International Disaster Response Law (IDRL) in Botswana: A study on legal preparedness for facilitating and regulating international disaster assistance Mrs. Elizabeth Machari Mokobi, Consultant, Law Lecturer, University of Botswana (Full presentation) Roadmap Overview The legal audit recommendations The Overview 2011-31 st International Conference of Red Cross and Red Crescent States resolved to examine and strengthen national legal frameworks for facilitation and regulation of international disaster response Botswana is a state party to the Red Cross Red Crescent Movement and participated in this resolution. June 2013 The Botswana Red Cross High Level Consultative Conference on IDRL Purpose of IDRL audit To explore how existing laws in Botswana handle common problems in international disaster response. Strengths National Disaster Management Office (NDMO) focal point National Policy on Disaster Management National Disaster Risk Management Plan Gaps Non accession or non domestication of major treaties in IDRL No National Disaster Risk Management legislation No legislation governing facilitation and regulation of international disaster response Existing legislation is fragmentary this costs in time, resources by Government and International Actors Resolutions GOB consider moving towards ratification of relevant IDRL treaties Audit of current legal framework to be conducted as assessment tool to establish strengths and gaps in the law Results of audit could lead to setting up of a legislative committee to strengthen laws of necessary or to develop a new legal instrument addressing disaster response. 23
Red Cross initiated the audit process Identified and commissioned independent legal consultant to conduct the legal audit. Facilitating the launch of the legal audit this morning Content of the IDRL Audit report Strictly a legal audit - practice in departments may exceed the minimum requirements of the law Independent A gathering of fragmentary laws in one document A tool for assessment of legal preparedness of each sector involved in IDRL A launch pad for possible steps towards strengthening national legislation. The legal audit assessed preparedness in the following areas: Accession and domestication of IDRL treaties Legal and institutional framework Legal status of foreign entities; accessing legal facilities by foreign entities Border control requirements for imported goods; entry permits, work permits, recognition of foreign qualifications and tax Transport during a disaster Freedom of movement, access and security Accountability and transparency Accession and Domestication of IDRL Treaties Key international treaties to international disaster response are: Tampere Convention Cooperation on the use of telecommunications of disaster mitigation and relief. Removal of barriers to the use of telecommunications resources and provision of telecommunications assistance Botswana has NOT acceded. Kyoto Customs Convention Specific Annex J.5 Conventions provision for timely and efficient clearance of relief consignments Botswana has ratified the treaty but has NOT acceded to specific annex J.5 Convention on Temporary Admission (Istanbul Convention) Annex B.9 Concerned with temporary admission of goods for humanitarian purposes. Botswana has not acceded. 24