Botswana court rules San Bushmen evicted unlawfully

Botswana court rules San Bushmen evicted unlawfully

By Caroline Southey in Johannesburg - Financial Times

14th December 2006

A group of San Bushmen won a landmark victory yesterday when Botswana's High Court ruled that they had been unlawfully removed from their ancestral lands by the government.

The case has been watched closely by human rights lawyers who are hoping it will set a precedent for other indigenous groups seeking rights to their ancestral lands.

The case was brought by the First People of the Kalahari, who were demanding the right to live and hunt in the Central Kalahari Game Reserve, with the support of London-based NGO Survival International. Most of the 1,500 Bushmen who lived in the reserve until 1996 have been forced out or relocated to new settlements by the Botswana government.

Gordon Bennett, the Bushmen's lawyer, said the court's ruling was about the "rights of the applicants to live inside the reserve as long as they want - and that's a marvellous victory".

About 100 Bushmen pack-ed the small courtroom in Lobatse, some 60km from the capital Gaborone, to hear the judgment.

But the case is unlikely to end the dispute. The government said the court's ruling was a "mixed decision" and that it was "not at all clear what it means in terms of implementation".

In evidence before the court the Bushmen claimed they had been driven off the land by a combination of forced removals as well as the discontinuation of basic services such as water, food rations and mobile clinics. The government has argued that the Basarwa, also known as the San, had abandoned their traditional ways of hunting in favour of guns and modern vehicles.

But Glyn Williams, a South African-based human rights lawyer closely invol-ved in the case, said the government's claims were "simply not true". He said the community, which shrank to as few as 220 when essential services were cut off, would grow again if the government abided by the decision and committed itself to a development programme.

Mining houses with prospecting rights in the park have been watching the case closely. Although none has been directly involved in the dispute, sensitivities about the rights of communities in mining areas remain high.

Botswana is the world's biggest producer of diamonds by value and has been the focus of attention for mining companies searching for new deposits as demand has outstripped supply. About six mining companies, including the biggest diamond producer De Beers, have exploration rights in the Central Kalahari Game Reserve.

Botswana Bushmen win court case about land

Reuters - Independent on-line

14th December 2006

Botswana's High Court has ruled that hundreds of Bushmen had been wrongly evicted from ancestral hunting grounds in the Kalahari desert and should be allowed to return.

The court ruled 2-1 for the Bushmen in the key issues of the case, which saw Africa's last hunter-gatherers take on one of the continent's most admired governments in a dispute over diamond rich land and development priorities.

Judge Mpaphi Phumaphi, who delivered the swing vote |in the case, said yesterday that Botswana had been wrong to force the Bushmen out of the Kalahari reserve by cutting off their livelihood.

"In my view the simultaneous stoppage of the supply of food rations and the stoppage of hunting licences is tantamount to condemning the remaining residents of the Central Kalahari Game Reserve to death by starvation," he said.

Wearing a waistcoat of animal hide over his shirt and tie, Roy Sesana, head of a Bushman pressure group, did a little dance on coming out of the courtroom.

"My heart today is nice!" he said in English, adding through an interpreter: "My ancestors told me I was going to win."

Jumanda Gakelebone, another Bushman activist, said: "I'm very very glad. I'm expecting to go back tomorrow."

The Bushmen's lawyer, Gordon Bennett, said the court had opened the way for the Bushmen to return to lands that their ancestors have lived on for about 20 000 years.

Chief government lawyer Sydney Pilane stressed that the state had not lost outright because the ruling did not require it to provide essential services to the Bushmen in the reserve. He said the government might appeal.

The court said it saw no grounds for out-of-court claims by the Bushmen that the government and diamond giant De Beers wanted to clear the land for diamond mining - the basis for a publicity push by Western pressure groups who've backed the Bushmen's cause.

Activists say more than 1 000 Bushmen want to go back to the Central Kalahari Game Reserve, an area of desert the size of Belgium which the government has set up as one of Africa's largest protected nature reserves.

Chief Justice Maruping Dibotelo, delivering a minority opinion ahead of the verdict, said the case should be dismissed.

But Judge Unity Dow disagreed, saying Botswana's government had "failed to take account of the knowledge and culture" of the Bushmen when it expelled them. "In 2002 they were dispossessed forcibly, unlawfully and without their consent."

The Bushmen say their way of life was being wiped out as they were resettled in bleak camps where they were unable to use their traditional hunting skills.

Botswana argued that Western activists, who have won the backing of Desmond Tutu and British actress Julie Christie, have romanticised a Bushman lifestyle that vanished long ago.

It says the Basarwa, also known as the San, are a danger to wildlife and that the Kalahari reserve is a poverty trap which stops the San integrating into society and denies them access to healthcare and education