Botswana's San peoples win land battle in court: in one of Africa's most high-profile land disputes, Botswana's Bushmen have won the right to live on their ancestral land--but with many strings attached. Tom Nevin reports.

In a verdict that stunned southern Africa and promises to impact on the way governments in the region will handle land dispossession of their indigenous peoples, a Botswana court has ruled in favour of a group of San Bushmen, and set aside their forced removal from ancestral land. But the story has many twists and turns and in the end, the Bushmen's victory could prove hollow and short-lived.

[ILLUSTRATION OMITTED]

The sandy Kalahari scrublands the Bushmen call home are also a fabulously wealthy repository of gem quality diamonds. Purely and simply the issue reflects a conflict of interests between the Bushmen's spiritual and physical hankering to sustain their traditional lives and the commercial interests of diamond mining, Botswana's economic mainstay.

Debswana, the diamond company in which De Beers and the Botswana government are equal partners, owns a retention mining licence in the park. Several senior politicians are Debswana directors. De Beers denies it has any plans to mine in the reserve.

The wrangle began in 1997 and continued through to 2002 when the government expelled some 2,000 Basarwa, an ethnic grouping of the San people, from their ancestral lands in the Central Kalahari Game Reserve. The uprooting of the Basarwa and their dumping on a distant, dusty reserve caused immediate local and international outcry. The Botswana government responded to this criticism by claiming that the Bushman lifestyle has long since vanished and was being romanticised by Western activists.

Essentially, San groupings such as the Basarwa are nomadic hunter gatherers, constantly on the move in search of water and such food as the environment can provide in game and plants. As a result, their homes are a series of temporary camps in the vast stretches of the Kalahari desert. It is a cyclical way of life that has endured for at least the last 20,000 years.

While the government will not appeal the court decision, it does not intend to stand by idly and do nothing. It has given notice that the gloves are off and that although the Basawra may have won the court battle, the war is far from over.

According to the government's legal spokesman, Clifford Maribe, the Basarwa's lifestyle has long since changed from its ancient traditions. "Even before the resettlements," he maintains, "they were not living the hunter-gatherer lifestyle. They were growing crops and hunting with dogs, horses and sometimes vehicles and guns bought outside the reserve."

Maribe says the Basarwa have long worn jeans and tracksuits and that the reserve is a poverty trap that stops them working for a better life and denies them access to health and education. The government also claims that all but 24 of the more than 2,000 Bushmen resettled had voluntarily left the reserve.

The Basarwa disagree with most of what the government claims. Relocated to a bleak resettlement camp some 200km north of Gaborone, Botswana's capital, they have little else to do, they say, but to drink the time away. There are no jobs, they claim.

"Here all we do is drink," observes Letshwao Nagayame. "It will finish us." Nagayame says he suffers in the camp. "I want to go home where I know I can find plants to eat and game to hunt."

Fiona Watson of pressure group Survival International says the Basarwa in the resettlement camp are living on handouts and have been robbed of their dignity.

In some instances the court decision is ambiguous and the government's legal department is pouncing upon various anomalies. For instance, although the Basarwa have been in possession of the land for the past 20 millennia, they do not own it, the government insists, claiming it is the state's land. They have a point. The court did not award ownership of the land to the claimants, simply the right to live on it.

In a twist the government said it will subsequently allow only the 186 representative claimants access to the land, the rest of the 2,000-strong Basarwa clan will have to apply for permits and there's scant guarantee that they will get them. The government will also not supply water, education or health services.

The scene for the showdown was set by Attorney-General Athaliah Molokomme immediately after the verdict when he announced strict conditions for the government's implementation of the court order. "The Central Kalahari Game Reserve remains state land," he said. "It is owned by the state and is subject to the laws of the republic."

The Bushmen do not necessarily see it that way. "The ruling says we own that land," claims Junanda Gakelevone of the First People of the Kalahari, a group representing the Basarwa. "We have constitutional rights to stay and occupy that land." Be that as it may, counters chief government lawyer Sydney Pilane, the government has still not lost outright, because the ruling does not require it to provide essential services to the bushmen in the reserve. The size of Belgium, the Central Kalahari Game Park is one of Africa's biggest protected nature conservation areas.

A way of life is gone forever

The Weekender, a Botswana newspaper, editorialises that the days when the Bushmen wandered unchallenged throughout most of southern Africa in an idyllic life of plenty and peace are long since over, and the court's ruling must be seen in that perspective.

"In some quarters, traditional Bushman culture--in which private property is an alien concept--may be viewed as superior to the materialism that now rules most of the world, but that point is no longer relevant. What the Kalahari Bushmen won was the right to live and hunt in a specific area of land. They are, however, no longer free to roam far and wide. It is precisely this loss that marks their extinction, but to try to resurrect it is a hopelessly lost cause; to do so is incompatible with the interests of the rest of humanity who share this part of the world."

The High Court ruling, although cause for celebration and a rare opportunity to bruise the administrative ego, does little more than to affirm the Basarwa's existence in limbo, and to ponder what will become of them and of other remnants of San tribes.

Their range is inexorably shrinking and a return to the past is no longer an option. What remains is to find a way for this handful of anachronistic people to live on in their culture and traditions as best they can in the space and conditions being allowed to them.

The fear is that the interests of diamonds will dictate the way that will be. While the diamonds that lie in the sands of the Kalahari might be forever, the ways of the Basarwa are not and miner and government alike can wait out the interval the Bushmen can tolerate an existence devoid of modern trappings and services and either die out or filter back to the fringes of their ancestral land.

RELATED ARTICLE: Tourism

A victory for others?

The Botswana High Court's decision in confirming the rights of indigenous people to live on their ancestral land is being hailed as a triumph for tribal people everywhere. This is the opinion of activists for the rights of indigenous people, including Survival International (SI). Miriam Ross of SI believes the Basarwa case will add to a growing body of case laws worldwide that indigenous people could refer to in the fight for their rights.

The ruling would also help break down the resistance among some UN members to resolutions calling for indigenous people's right to self-determination. The Botswana government opposed the Declaration on the Rights of Indigenous People adopted by the Human Rights Council of the UN General Assembly claiming an absence of a definition of 'indigenous people' left it open for any group to identify itself as indigenous.

Other San communities have been inspired by the Basarwa verdict to take up their own cases. Descendants of the Hai//kom, a San tribe that lived for centuries in the area now occupied by Namibia's Etosha National Park, until they were dislocated in the 1960s by South Africa's apartheid government, intend mounting a court challenge. Says Hai//kom descendant Naftali Soroseb: "The battle has only begun. We are fighting from scratch and we will fight for all the land we lost in southern Africa, including Etosha."

Other traditional communities around the world are under threat. The Bayaka pygmies of the Dzanga-Sangha rainforest in the Central African Republic are being helped by the World Wildlife Fund in a fight to secure the rainforest for future generations.

[ILLUSTRATION OMITTED]