Days of Basarwa
Basarwa will soon find out that their 2006 victory against the State was in vain because government had conveniently erased them from the Constitution hardly a week before the judges unknowingly declared that the San have freedom of movement rights inside
In 2006, the High Court ordered that the refusal by government to allow Basarwa to enter the Central Kalahari Game Reserve (CKGR) unless they are issued with a permit was both unlawful and unconstitutional.
This was a majority judgement in the Roy Sesana and Others versus the Attorney General case before then Chief Justice Maruping Dibotelo, Justice Unity Dow and Justice Mpaphi Phumaphi.
It was a landmark ruling that was celebrated by Basarwa as a great victory in their struggle for freedom of movement at their birthplaces inside the CKGR.
But in the ruling, the judges were not aware that hardly a week before they delivered their judgement, the Constitution was conveniently amended to repeal a key clause that supported the primary argument in the case.
In the amendment, Parliament scrapped Section 14.3.C which was used to protect Basarwa’s freedom in the CKGR.
The reason for the amendment was said to make the clause ‘tribally neutral’.
Section 14.3.C said that the general public can have their right to free movement restricted within ‘defined areas’ if that is necessary for the protection or well-being of Basarwa.
The Sesana Case, as it is popularly called, was the first time that the said section was tested in court.
Justices Dow and Phumaphi ruled: “The respondent’s (government) policy of refusing to allow the applicants (Basarwa) to enter the CKGR unless they were issued with a permit amounted to an unlawful curtailment of the applicants’ constitutional right to freedom of movement.”
In his judgement, Justice Phumaphi used Section 14.3.C to argue that the CKGR was meant to serve a dual purpose of providing a home for Basarwa and protection for wildlife.
He wrote in the judgement: “Subsequent to the declaration of CKGR a game reserve, the 1963 CKGR (Control of Entry) Regulations made it very clear that the Bushmen to the CKGR were exempted from having to obtain a permit to enter the CKGR, while all other people required permits to enter the reserve.
This exemption of the Bushmen from requiring a permit into the CKGR found its way into the Constitution as Section 14(3) (c).
“The Westminster debates on the Botswana Independence Bill demonstrate how Section 14(3)(c) of the Botswana Constitution came about. They show that the provision was meant to ensure that the game reserve was available to the Bushmen, while other communities were prohibited from occupying the game reserve,” argued Phumaphi.
Phumaphi, therefore, used Section 14.3.C and concluded that it was unconstitutional to require Basarwa permits to enter the CKGR because “when government decided to relocate the residents outside, it took the route of persuasion as it appreciated that the Bushmen lawfully resided in the CKGR.”
But as he delivered the judgement, Section 14.3.C had already been repealed. Knowing very well that the judgement was based on a non-existing law, strangely the government did not appeal the judgement. They complied with it, but to an extent. And now 16 years later, in the case of Lesiame Pitseng versus Attorney General, the issue of Basarwa’s permits into the CKGR has resurfaced again and this time Basarwa have no Constitutional protection.
Pitseng is seeking to bury his father Pitseng Gaoberekwe at Metsiamanong in the CKGR and has been denied a permit by the director of the Department of Wildlife and National Parks (DWNP) who says that no one has the right to be buried in the game reserve. The deceased’s body has been lying in a morgue for four months.
This week, Justice Itumeleng Segopolo dismissed Pitseng’s application saying that although his father was a resident of CKGR, he was not part of the litigants in the Sesana case because his name was not amongst the 189 people on the list and therefore not a beneficiary in the judgement. However, it is worth noting that in 2006 in her judgement in the Sesana case, Dow argued about people who were not on the list saying: “The remaining 29 applicants were not represented, and they remain litigants on paper only. Notwithstanding, having launched the case, they remain parties to the case and are bound, for better or for worse, by the decision of this court. They had ample time, over the last four years, to withdraw from the case, if that is what they wished.”
State lawyer in the Pitseng case, Advocate Sidney Pilane, has argued that by law no one is now supposed to be in the CKGR without a permit, including Basarwa. He said it was only a government policy to allow Basarwa without a permit into the CKGR because the law (Section 14.3.C) that guaranteed their special freedom of movement in the game reserve, was repealed and therefore Basarwa have the same rights as everyone else. Survival International’s Director, Stephen Corry who was supporting Basarwa had anticipated that the amendment was going to haunt Basarwa.
Corry had said: “Removing this section [14.3.C] takes away the only constitutional protection given to an already vulnerable people, just when they need it most. It is outrageous that the government should act before the court has handed down its judgement. This confirms that the government is happy to bend the law and even the Constitution just to get its own way.”
Segopolo’s judgement in the Pitseng case means that the 2006 Sesana case victory was in vain. In the Pitseng case, Justice Segopolo wondered aloud why the government did not appeal the Sesana judgement then because it was based on a changed law.
His judgement this week could be interpreted as effectively cancelling the Sesana judgement and affirming that indeed no one has the right to live in CKGR without a permit. The attorney in the Pitseng case, Nelson Ramaotwana has indicated that they are appealing the judgement and it remains to be seen whether Basarwa will ever freely live in the CKGR again.