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Out in Africa: Methods of extinguishing Bushmen's rights

Since time immemorial, Bushmen, who are also known as Basarwas in Botswana, lived in the area which came to be known as the Central Kalahari Game Reserve. Their rights were not extinguished by the colonial British, who rather recognised the exclusive rights of particular bands to particular territories under a system of traditional land usage. When Botswana was declared independent in 1965, these rights accorded to the Basarwas by the colonial British were not extinguished either.  Rather, the constitution of Botswana, in particular Article 14(3), accorded the Basarwas a right to reside in the Central Kalahari Game Reserve.

Today, these rights of the Basarwas are being extinguished by the Botswana government. First, in February 2002, the government of Botswana displaced the Basarwas under the National Parks and Game Reserve Regulation on frivolous grounds such as protection of the wildlife population in the Reserve; the prohibitive cost of the provision of basic services to the settlements and its desire to introduce the Basarwas to the mainstream of Botswana society. Second, when the Basarwas sought to exercise the right accorded under Section 14(3) of the Constitution, the government came up with disingenuous plan to repeal the same.  A mockery of democracy, justice and rule of law!

Basarwas sought a negotiated solution for a Management Plan for the Reserve. These negotiations were reportedly close to producing an agreement under which the settlements inside the Reserve would have had their own "community use zones" to continue to hunt and gather in these zones and launch projects to generate much needed revenue. However, the Government produced another alternate management plan without any consultation with the Basarwas and displaced them.  The alternate plan absolutely prohibits any form of hunting and cultivation of any crops and bans all domestic livestock. The government unilaterally withdrew basic services. The aim was to make living conditions of the Basarwas untenable.

While examining the 15th and 16th periodic reports of Botswana, the UN Committee on the Elimination of All Forms of Racial Discrimination (CERD Committee) in its Concluding Observations of  4 April 2006 expressed concern at "the discrepancy between the information provided by the State party that residents of the Central Kalahari Game Reserve have been consulted and have agreed to their relocation outside the Reserve, and persistent allegations that residents were forcibly removed, through, in particular, such measures as the termination of basic and essential services inside the Reserve, the dismantling of existing infrastructures, the confiscation of livestock, harassment and ill-treatment of some residents by police and wildlife officers, as well as the prohibition of hunting and restrictions on freedom of movement inside the Reserve".

As negotiation failed and government made conditions of the Basarwas untenable, the Bushmen had no other option but to file a case in April 2002. The world's most impoverished populations were forced to seek legal recourse which has so far turned out to be the longest and most expensive litigation in Botswana's legal history. The difficulties experienced by poor people, many of whom belong to San/Basarwa groups and other non-Tswana tribes, in accessing common law courts, particularly high fees, the absence of legal aid in most cases, as well as difficulties in accessing adequate interpretation services in Bostwana has been confirmed by none other than the CERD Committee.

The petition of the Basarwas was first rejected on technical grounds.  The Bushmen appealed and won the right to have the case heard, and it began in July 2004 in Botswana's High Court. At least 10% of the original 243 applicants have died in government resettlement camps since the case was filed. 135 more Bushmen have asked to be added to the original list of 243 applicants in 2006.

In April 2006, the CERD Committee recommended to the Botswana government that it resume negotiations with the residents of the Reserve, including those who have been relocated with a view to finding a solution acceptable to all. Emphasising  a rights-based approach, the CERD Committee urged Botswana to (a) pay particular attention to the close cultural ties that bind the San/Basarwa to their ancestral land; (b) protect the economic activities of the San/Basarwa that are an essential element of their culture, such as hunting and gathering practices, whether conducted by traditional or modern means; (c) study all possible alternatives to relocation; and (d) seek the prior free and informed consent of the persons and groups concerned.

The CERD Committee's recommendation of resuming dialogue with the Bushmen was not implemented. Final arguments in the High Court are slated for the last week of August 2006. 

Earlier, in an attempt to nullify the impending judgment, Botswana decided to repeal section 14 (3) of the Constitution on the obnoxious ground that there was no point in maintaining this provision since the residents of the Reserve had been persuaded to be relocated. The CERD Committee held that such an action would prejudge the results of the on-going court case and urged Botswana to refrain.

The Republic of Botswana has been considered a progressive and stable democratic country in Africa. Its reputation faces a litmus test.  If Botswana repeals Section 14(3) or deprives the rights of the Basarwas, it would be nothing short of the tyranny of the majority in the name of democracy and rule of law.  The denial of rights to the Basarwas will be a sad case for Africa as a whole.

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