Sunday, December 17, 2006
After a hard-fought court battle - billed as the longest and most expensive in Botswana's legal history - on Wednesday the San won their right to return to their ancestral home in the Central Kgalagadi Game Reserve (CKGR), in the Kalahari Desert.
The High Court of Botswana in Lobatse, about 70km south of the capital, Gaborone, ruled that the San, also known as the Bushmen, had been wrongfully evicted from their ancestral homeland in 2002.
The government intended setting aside the protected area for wildlife and tourism development and began relocating the San outside the CKGR in 1997. Rights groups claimed that the San community was forcibly removed from their ancestral land to make way for diamond exploration in the CKGR, and assisted 244 former CKGR residents to mount a legal challenge in 2002. The government has maintained that the emphasis has always been on persuasion and voluntary relocation.
"Today is the happiest day for us Bushmen. We have been crying for so long, but today we are crying with happiness. Finally, we have been set free. The evictions have been very, very painful for my people. I hope that now we can go home to our land," said Roy Sesana, a former CKGR resident and spokesman for the First People of the Kalahari (FPK), an advocacy group for the San community.
"We are pleased", said an elated Jumanda Gakelebone, another FPK spokesman.
A panel of three judges ruled two to one in favour of the main issues raised by the San during the case, which is being perceived as a model for other legal challenges being mounted by indigenous communities removed from their ancestral land in other countries.
Stephen Corry, director of the advocacy group, Survival International, described the ruling as a "victory for indigenous peoples everywhere in Africa. It is also a victory for Botswana. If the government quickly enacts the court ruling, then the campaign [to return the San to their land] will end and the country really will have something to be proud of".
The only dissenting voice on the bench, Maruping Dibotelo, chief justice of the high court and the first to deliver a verdict, ruled in favour of the government, sending an air of despondency across the court room packed with hundreds of members of the San community, many of whom had trekked for long distances to hear the historic judgment.
When the second judge, Unity Dow, ruled that the government had acted "unconstitutionally" and "unlawfully", the San were visibly pleased. "The respondent [the government] did not inquire into the consequences of the relocation. In some cases, wives who wished to relocate were turned against their husbands who did not want to do so, and children were also turned against their families," she said.
Judge Mpaphi Phumaphi, who delivered the deciding ruling, took an even harder line and said the refusal to issue hunting licences to the San was "tantamount to condemning the remaining residents of the Central Kgalagadi Game Reserve to death by starvation".
Dibotelo, the presiding judge, then read out the final verdict: "Prior to January 31, 2002, the applicants were in possession of the land which they lawfully occupied in the CKGR [Central Kgalagadi Game Reserve]. The applicants were deprived of such possessions forcibly or wrongly and without their consent."
The government's subsequent refusal to allow the San a permit to return to their land was "unlawful and unconstitutional", he said.
The CKGR is a reserve about the size of Switzerland, created in the last days of British colonial rule before Botswana's independence in 1966, in which the San were guaranteed continued occupation of land their ancestors had lived on for thousands of years.
The lawyer representing the San, Gordon Bennett, had told the court that the San "have a right of use and occupation", and pointed out that neither the British colonial system nor the Botswana government had passed legislation to remove this right.
During the relocation, the community's water tanks and livestock had been confiscated, Bennett said, and they had been prevented from hunting, making them "trespassers on their own land".
After the water tanks were removed, the Bushmen had used donkeys to ferry water, but these had also been taken away because the government said the donkeys threatened the wildlife with disease.
Thousands of San seemed set to relocate to CKGR after the verdict, which also said the government was not obliged to provide basic services, such as water, to anyone returning to the reserve.
The government is reportedly considering whether to appeal the judgment.