'The Human Rights of the San (Bushmen) of Botswana – The Clash of the Rights of Indigenous Communities and Their Access to Water with the Rights of the State to Environmental Conservation and Mineral Resource Exploitation'

40 Pages Posted: 4 Aug 2012

See all articles by Jeremy Sarkin

Jeremy Sarkin

University of South Africa

Amelia Cook

affiliation not provided to SSRN

Date Written: August 3, 2012

Abstract

In July 2010, the High Court of Botswana ruled against the San, often called pejoratively “Bushmen” or Basarwa, denying their right to access water on their ancestral lands inside the Central Kalahari Game Reserve (CKGR). During the June 9, 2010 hearing, the San requested that either the existing borehole on their land be reopened or that they be given permission to drill another borehole at their own expense. This court’s decision represented another step in the ongoing and protracted legal dispute between the Government of Botswana (GOB) and a group of San peoples formerly living inside the CKGR. Since 1996, when the GOB began its forced-removal campaign against the San living within the CKGR, the San have been fighting to regain access to their land. At the same time, the GOB has granted diamond-mining licenses in the Reserve on the condition that any water borehole “be utilized strictly to provide water for the mine.” The San contend that this condition specifically aims to deny them access to water from the mine.

The water issue must be seen in the context of the San’s struggle to live and pursue their livelihoods on their land, butting heads with the GOB’s desire to allow diamond mining in the Reserve. While the GOB has argued that the San’s presence in the CKGR impedes conservation efforts, the United Nations (UN) Special Rapporteur on Indigenous Rights stated in a 2010 report that the GOB’s position is “inconsistent with its decision to permit Gem Diamonds/Gope Exploration Company (Pty) Ltd. to conduct mining activities within the reserve, an operation that is planned to last several decades and could involve an influx of 500-1,200 people to the site, according to the mining company.”

At the same time, the right to water as an internationally recognized human right has gained increasing support. On July 28, 2010, the UN General Assembly adopted a resolution recognizing access to clean water and sanitation as a human right. The resolution called on “States and international organizations to provide financial resources, build capacity and transfer technology, particularly to developing countries, in scaling up efforts to provide safe, clean, accessible, and affordable drinking water and sanitation for all.” One hundred twenty-two states voted in favor of the resolution and none voted against it, while forty-one states, including Botswana, abstained.

This Article begins by reviewing the historical relations between the ruling Tswana ethnic group and the San from the time that the Tswana settled in Botswana roughly 700-800 years ago to the present day, in which the Tswana and their allies continue to dominate the political sphere. The history of the CKGR, which is central to the current debate of land and water rights for the San there today also is reviewed. Before introducing the court case, in which the San protested their eviction from the CKGR before the High Court of Botswana, the legal system in Botswana is discussed. The Article reviews and analyzes the findings of the High Court then discusses the GOB’s failure to comply with many aspects of the 2006 ruling and what this will mean for the San. It further explores the issue of human rights violations with respect to the San people of the Kalahari. It also discusses the implications this case — and the legal battle it gave rise to — have for other indigenous land rights cases and the protection of indigenous rights across Africa.

While this Article focuses specifically on the plight of the San inhabitants of the Central Kalahari, the G/wi and G//ana, it is crucial to note that all San groups in Botswana, who are represented by many distinct linguistic and cultural groups, suffer marginalization and discrimination to varying degrees at the hands of the GOB and Botswana society. They “are widely recognized as the most impoverished, disempowered, and stigmatized ethnic group in southern Africa.” The Article discusses the implications of the current status of the San in Botswana. It analyzes the need for the GOB to address the general situation of the San and makes recommendations regarding how Botswana can protect and promote the unique value of the San in such a way that will complement its image, help drive its economy, and assist its goals of environmental protection, while at the same time improving the San’s vulnerable position in its society. The Article concludes that the current state of affairs of the San will not benefit Botswana in the long run, and that at the same time, it poses a legitimate and potentially detrimental threat to the country’s international image.

Suggested Citation

Sarkin, Jeremy and Cook, Amelia, 'The Human Rights of the San (Bushmen) of Botswana – The Clash of the Rights of Indigenous Communities and Their Access to Water with the Rights of the State to Environmental Conservation and Mineral Resource Exploitation' (August 3, 2012). Journal of Transnational Law & Policy, Vol. 20, 2010-2011. Available at SSRN: https://ssrn.com/abstract=2123038

Jeremy Sarkin (Contact Author)

University of South Africa ( email )

P.O. Box 392
UNISA
Pretoria, Gauteng 0003
South Africa

Amelia Cook

affiliation not provided to SSRN ( email )

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