Minority groups suffer further marginalisation
Ancestral land access and land rights for minority groups a source of contention
The Court of Appeal in Gaborone has dismissed with costs a case in which the family of Pitseng Gaoberekwe had made an application to have him buried in the Central Kalahari Game Reserve (CKGR).
The body of Gaoberekwe has been in a mortuary in Gantsi Hospital since last year December as his family took on a legal battle to be allowed to bury the patriarch on his ancestral land as per his wishes. He and his family had lived in that land for ages before they were evicted by Government to make way for the game park.
The Court ruled that the old man should be buried within seven days. The case was presided over by High Court Judges Justice Singh Walia, Leatile Dambe and Mercy Garekwe.
Government has waived their claim to costs on the suit at the High Court when they first won the case. “The Appellant has failed to establish any right of either himself or the deceased to bury the latter in the CKGR, neither did he challenge the decisions by the Council and the Department of Wildlife and National Parks to refuse him to bury the deceased in the CKGR.”
The mammoth Court case opened a can of worms and highlighted the need for amendments to the Land Policy to make specific stipulations for ancestral land, on the backdrop of growing marginalisation of so-called minority groups such as the Basarwa, some of whom have been displaced and driven off the land that their ancestors occupied for many years. When Government pushed Basarwa out of the CKGR and allocated them land in areas such as New Xade and Gantsi, some left physically but spiritually they still felt aligned to the land.
In the instance of the Gaoberekwe family, details of the matter are that the council had wanted Gaoberekwe to be buried in New Xade, but the family opposed this insisting that as per Sesarwa culture their father has to be buried in the CKGR where he originated.
Details of the matter indicate that the deceased’s family who are currently residing in New Xade had informed the court that their father’s last wish was
for him to be buried in the CKGR rather than New Xade stating that he had lived his entire life at the reserve. The deceased’s son Reuben Pitseng said that their father had “moved to New Xade for easy access to health facilities.”
However, the Ghanzi District Council had informed the family that they would not have the resources to assist the family to take the body to the CKGR, but matters turned for the worst when the Department of Wildlife and National Parks (DWNP) refused that his body be taken to the game reserve for burial after the family had applied for a permit but had been denied entry.
Although the two parties’ settlement was approved by the Lobatse High Court, the family has been denied entry into the game reserve by DWNP. The High Court had approved the settlement by the two parties which gave the family the green light to enter the CKGR to bury the deceased.
However, things changed as the DWNP made an application before the High Court which barred the family entry into the CKGR which they insisted is state land and a game park and not a burial site.
The Basarwa have had contention with Government for over two decades now, and perhaps even longer considering that the first evictions started in the 1970s. In 2002, Botswana government evicted the Bushmen from their ancestral land in the CKGR. A landmark high court ruling in 2006 confirmed that the Bushmen had a right to return to the CKGR without a permit.
However, the government has not been allowing all Bushmen to return without a permit, just those involved in the court case and listed legally.
Over the years, the Basarwa have remained the most marginalised tribe in Botswana, and their loss of access to land and subjugation is traceable to the arrival of the Bantu in Southern Africa. In an effort to address this historical injustice, the colonial government conceived the Central Kalahari Game
Reserve (CKGR) as a ‘Bushmen’ land reserve but the tribe lost access to their historical lands and natural resources to tourism and mining.
Consequently, the Basarwa took Government to court which resulted in the judicial pronouncement that they are lawful occupiers of the reserve. The court also ruled that the Basarwa are indigenous peoples within the scope of international law, but as Government advocates argued in Court during the Pitseng trial, the Constitution of Botswana confers special rights to the Basarwa equivalent to those of indigenous peoples and Government should desist from approaching the Basarwa in a paternalist manner and respect their right to self-determination, and uphold the recognition of the indigeneity of the Basarwa, which is critical in resolving their land issues.
It is not only the Basarwa in the CKGR who have had sour grapes over being displaced. Basarwa in the Boteti have also expressed disgruntlement that they have been kicked off their ancestral land without consultation or compensation. Since December 2017 there have been land displacements that have not only confused the residents but also taken them further away from basic resources, plunging them into further poverty and struggle.
Spokesperson of Botswana Khwedom Council Banyatsi Salutu had complained that the Land Board does not acknowledge ancestral land nor uphold the rights of Basarwa and hence makes decisions without consulting them yet they understand their issues better.
Salutu pointed out that Affirmative Action for minority groups was not implemented, and the Remote Areas Act such as RADP is useless as it does not make any amends or recommendations on protecting ancestral land, saying that it rather discriminates and violates the rights of minority groups, particularly of the Basarwa and creates tribal tensions particularly as they are forced to fight for basic amenities and resources.
He noted that ancestral land in Botswana is a longstanding contentious issue centred on land historically occupied by the Basarwa and other indigenous tribes but Government has systematically relocated them in order to make way for farms and mines.