By Caitlin Shay, February 1, 2010

A bushman drinking water from an ostrich egg

The Bushmen are the oldest inhabitants of sub-Saharan Africa, with ancestors dating back some 20,000 years. Despite their constitutionally protected right to live and hunt on the Central Kalahari Game Reserve (CKGR), which was reaffirmed by Botswana’s High Court in 2006, the government of Botswana continues to deny the Bushmen the right to access water and hunt on the land.

On January 18, 2010, Roy Sesan, leader of the First People of the Kalahari, declared that peace talks with Botswana’s president Ian Khama were unsuccessful and that the Bushmen are ready to take their case to the International Court of Justice (ICJ). The ICJ has authority under the United Nations Charter to issue advisory opinions to states regarding human rights violations. In order to pursue such an advisory opinion, the UN Secretary-General or another authorized organization would have to file a request on behalf of the Bushmen. Sesan accuses the government of ignoring the 2006 High Court decision granting the Bushmen the right to live and hunt on the CKGR, continuing to discriminate against the Kalahari Bushmen, and denying them their right to access water. Attempts to resolve the conflict in domestic courts have also failed, after the government violated the 2006 ruling and failed to comply with subsequent rulings concerning livestock confiscation and hunting permits.

The Bushmen reside in the CKGR, which was created in 1961 to protect the traditional lands of the Bushmen residing in Botswana, and to help preserve the wildlife. However, after diamonds were discovered on the reserve in the 1980s, major conflicts developed between the Bushmen and the government, which many claim has tried to clear the Bushmen off the land in order to allow diamond miners freer access. Land evictions in 1997, 2002, and 2005 caused almost all the Bushmen on the Kalahari Reserve to be pushed off their lands and forced to resettle in camps.

In 2006, after the longest and most expensive case in Botswana’s history, the split High Court ruled that the government’s actions in evicting the Bushmen were “unlawful and unconstitutional” and ordered it to allow the Bushmen to return to their land and have access to water and hunting permits. The swing vote was delivered by Judge Mpaphi Phumaphi, who stated that stopping food rations and depriving the Bushmen of hunting licenses was equivalent to condemning them to “death by starvation.” The ruling ordered the government to comply with Article 14 of Botswana’s Constitution, which protects the Bushmen and allows them to live freely in the reserve.

Since the 2006 landmark decision, Botswana’s government has evaded the ruling and made it almost impossible for the Bushmen to live peacefully in the reserve. One of the most disturbing examples of discrimination against the Bushmen was the disenfranchisement of 400 Bushmen in five villages during the 2009 general election. The Electoral Commission confirmed that the five CHGR villages were not on the voter’s roll, that no polling stations were in the villages, and that no residents had been registered. The District Commissioner responded by stating that the government was not required to provide essential services inside the Kalahari reserve and that 400 disenfranchised people may be too high of an estimate.

The current litigation that Sesan is planning to put before the ICJ addresses the Bushmen’s right to access water. Since the Bushmen returned to the CKGR after the 2006 ruling, the government has denied them access to the boreholes they used for water prior to the evictions, forcing them to travel 300 miles to collect water for their communities. Because of this, only about 1,000 Bushmen have left the resettlement camps and returned home, even though there are 48,000 Bushmen living in Botswana. Many of the boreholes where the Bushmen were accustomed to gathering water were sunk for diamond minors, and even more were closed for tourist lodges. Although the government and diamond companies have claimed that the Bushmen are being denied access to the water for the purpose of environmental conservation, the government recently allowed a safari company to build a swimming pool on the reserve at a tourist lodge. The government has also said that Gem Diamonds, which is in the process of being approved for mining, will be able to drill boreholes to clean diamonds, a process that requires billions of gallons of water. The government has further denied the Bushmen the right to drill a borehole at their own cost.

Water is crucial to the Bushmen’s survival as is access to the CKGH for the continuation of their way of life. The government is flagrantly violating its own judicial body by continuing to discriminate against the Bushmen and deny them access to water. It is now up to the international community to rebuke the government of Botswana and make it conform to its own law.