By Gordon Bennett · 7 Jun 2013
Some people see Botswana as a beacon of democracy in Southern Africa. Those who regard respect for minorities as the true hallmark of a democracy, however, might take a rather different view.
For years successive governments have ridden roughshod over the rights of Botswana’s most vulnerable minority, the Kalahari Bushmen. It seems that they do not chime with the “progressive” image that the country wants to project, and must be made to mend their ways until they do. If a law or two has to be broken along the way, the government apparently regards this as an acceptable cost of “development”.
When the British established the Central Kalahari Game Reserve in 1961 it had already been home to the Bushmen - or the “San”, or “Basarwa”, as they are sometimes called – for several thousand years. The UK Parliament was assured that the “CKGR” would remain their home so long as they wanted to live there. In 1986, however, an independent Botswana decided that they were now to be “encouraged” to leave the Reserve. According to President Mogae, their hunter gatherer existence had no place in a modern Botswana. That way of life should be consigned to the Stone Age.
Many Bushmen did not share his view. Their experience of the outside world had been one of exploitation and prejudice, in which they did not believe that they or their children were likely to flourish. They preferred to follow their own ways on their own land, and to accept whatever hardship came with this.
For more than ten years, one government after another – albeit formed always by the same political party - continued to “encourage” the Bushmen to change their minds. In 1997 many were finally moved to resettlement camps outside the Reserve, but over six hundred still refused to go.
By early 2002 the government had lost patience with these diehards, and announced that it would now withdraw the food rations that it had previously supplied. It also withdrew a mobile health clinic and other basic services. It banned all hunting in the Reserve, even by those who had been issued with official licences to hunt. It cut off the only source of potable water and emptied water tanks. It dispatched police and wildlife scouts to gather up all the people, animals and huts that they could find. Apart from the few stragglers who escaped into the bush, all were herded into trucks and dumped in specially constructed camps outside the Reserve.
Ministers must have thought that this was the end of the matter - bar a few squeals of protest, perhaps, from people of no importance. The CKGR had been demarcated on State Land, after all, and was for the government to do with as it wished. Even if Bushmen had been born in the CKGR and had spent all their lives there, if they did not have official permits they were criminal trespassers; and no permits had ever been issued. Besides, as the Bushmen themselves would eventually realize, the government had acted in their own best interests.
This was a fatal miscalculation. To general astonishment over two hundred of those who had been bundled out of the Reserve sued the government in what came to be known as the Sesana case. Their claim proved to be to the longest and most expensive litigation in Botswana’s history, and thanks largely to the efforts of Survival International attracted huge publicity around the world.
There were moments in the trial of which Groucho Marx might have been proud. As it began, the government moved to amend a section of the Constitution intended to protect the Bushmen - but amended the wrong bit. Half way through the hearings the Special Advisor to President Mogae, who was also the lead attorney for the State, refused to obey a court order and was committed for contempt. He fled the scene with his star witness, had to be stopped at a police road block, and spent three nights in Gaborone Prison. Government witnesses succumbed to bouts of collective amnesia when asked how they had managed to “relocate” more than six hundred people who had not wanted to leave. The Minister in charge of the reelocation was not put in the witness box. Government records were conspicuous by their absence.
The Court delivered its judgment in December 2006, and rejected outright the claims of trespass. It ruled that on the contrary the Bushmen had been removed from the CKGR unlawfully and against their will, and had a constitutional right to return and to live there for so long as they wanted.
One judge held that the forced relocation had abridged Bushmen’s rights to “life, liberty, and freedom of movement,” and that the root cause of these violations was a view of “development” that “failed to take into consideration [their] knowledge, culture, and ideologies”. All three judges held that the hunting ban was unlawful. One ruled that the effect of the ban had been to condemn the residents of the CKGR to death by starvation, and that it violated their right to life.
The government chose not to appeal. It appears to have thought a more effective route was to emasculate the High Court’s decision in any way that it could. That, at all events, is precisely what it set out to do.
It refused, for example, to provide vehicles to return people to the settlements from which, so the Court had ruled, they should not have been removed in the first place. Those who could not beg or borrow other means of transport were marooned in government camps.
It airbrushed the CKGR management plan so as to remove all reference to the Reserve’s human population. It even sought, apparently, to misrepresent the effect of the ruling. The Minister for Wildlife is said to have told Bushmen that nothing in the Court judgment had altered the fact that the CKGR was meant only for “game” and not for people, and that they still had no right to be there. This was simply not true.
It ignored all applications for new hunting permits, so that the ban remains in full force despite the court ruling. Bushmen must still decide whether to hunt and risk five years in prison if they are caught, or face starvation for themselves and their families. As one Bushman has told Survival: ‘We depend on the natural resources of the CKGR for our food. How are we expected to survive if we cannot hunt?’
To US Senators who had expressed their concern, President Mogae insisted that Bushmen would be permitted to hunt with bows and arrows (rather than with horses and spears, presumably, because Bushmen have never used guns). He said the same thing in radio interviews within Botswana. But when the pilot of a light aircraft spotted a small hunting party in the Reserve in 2012, the fact that it had had been armed only with bows and arrows did not stop a criminal prosecution. Unfortunately for the Bushmen the pilot was President Ian Khama, who does not share the views of his predecessor.
So determined is the present administration to maintain the ban that it has either deluded itself or sought to delude others about the state of the law. Although the issue does not obviously fall within his remit the Minister of Defence, Justice and Security has informed the National Assembly that “the Wildlife Management and National Parks Act prohibits hunting inside the game reserves and national parks save for scientific purposes only. The [Sesana] judgment did not render unconstitutional existing laws, which continue to apply.”
This is nonsense, as the Minister should have realized. The Act does not prohibit hunting in a game reserve at all. On the contrary, Regulations made under the Act specifically allow for the issue of permits “to persons who can rightly lay claim to hunting rights in the Central Kalahari Game Reserve.” Successive governments have preferred to pretend that this Regulation does not exist.
Water is an even more precious resource than meat in the Kalahari. The government is well aware of this, but for years denied Bushmen the use of the only borehole in the Reserve and refused to allow them to sink boreholes of their own. They were told that they would have to collect water from outside the Reserve. It was no concern of government that the old and the sick would be quite unable to do this, or that a four day journey over tough terrain would pose a challenge even for the able bodied. People would have only themselves to blame, apparently, if they died of thirst en route.
More litigation became inevitable. The new claim, for a right to water, was dismissed by the single judge but unanimously upheld by five judges in the Court of Appeal. They found that the Bushmen were entitled both to use the existing borehole and to sink their own, and that the government’s attempts to stop them doing so was degrading treatment and a breach of their constitutional rights.
This decision has at last made it possible to re-commission the “old” borehole, and to sink two new boreholes which should be completed shortly. This will allow many Bushmen -particularly the elderly or infirm and those with young children - to contemplate a return to the Reserve which would not have been practical before.
But the government has found, or thinks it has found, other ways to keep people out of their homes. A favorite ploy has been to insist that only those named as applicants in the Sesana case can rely upon the 2006 judgment. Everyone else requires a permit to enter the Reserve, and this will only be given to those who can identify a Sesana applicant whom they wish to “visit”. Even then, permits are issued for only one month. Those who overstay are liable to prosecution, and can be sent to prison for up to seven years.
The result has been to separate husbands from wives and parents from children. Husbands who had jobs outside the Reserve when the relocation took place, and were therefore not among the Sesana applicants, may “visit” their applicant wives inside the Reserve only if they first obtain a permit to do so. Young people are in an equally invidious position. Many of them were too young to become applicants when the “relocation” took place, and must now apply for a permit to see their own mother and father. Normal family life has become impossible. Requests of the government to either justify or abandon its policy have gone unanswered.
In the meantime, the negotiations which the Court first urged upon the parties more than six years ago appear to have got nowhere. There have only been talks about talks, and even these have been a rare event.
Why is this? If the government had genuinely wanted to agree with the people of the CKGR how they should use their traditional territories, it has had more than enough time to do so.
The most plausible explanation, perhaps, is that Ministers remain determined to see the Reserve empty of people, but that in the light of the legal problems they have decided that this can only be achieved over the longer term. More than thirty Sesana applicants died before the judgment was delivered, and sooner or later those that have survived will follow them.
Eventually, non-applicants will have no more relatives to “visit” and can be denied further access. The government will have achieved by stealth what it could not achieve through the law.
Later this year the Bushmen hope to challenge this scheme through the Courts. They will argue that the Sesana applicants sued not only for themselves but for all those who had been relocated in 2002, and that the government formally admitted this at the time. They will say that Bushmen removed from their homes in exactly the same circumstances as the Sesana applicants cannot have forfeited their legal and constitutional rights to return to the Reserve just because they did not have the same opportunity as the Sesana applicants to put their mark on the relevant court papers.
But whatever the outcome of the new claim, the government can always find ways to discourage those who have had the temerity to prefer life in the Kalahari. More damage may follow to the reputation of Botswana abroad, and there may be more misery to come for the Bushmen. The saga may end only when the people of the CKGR have died out - or the politicians have finally brought themselves to admit that, actually, these people should have the right to live as they want, and that the job of government is to help them to exercise that choice.
By the looks of things, this will not happen any time soon.
This treatment sounds just like that under Apartheid although those concerned in administering it would no doubt not call it that. But that aside it reveals underlying cavalier attitudes to one's fellow human beings that are totally unacceptable.