Impact of international mechanisms on indigenous rights in Botswana

Abstract

This article looks at the inter-relationships between the global indigenous movement on the one hand, and the national policies and the changing fortunes of local indigenous organisations on the other. It provides a case study of a court case contesting the removal of San inhabitants of the Central Kalahari Game Reserve (CKGR) in Botswana that went on from 2004 to 2006. The focus is on the transnational aspects of events leading up to, taking place during, and following after the court case in Botswana. The judgement in the court case is analysed to see to what extent it is resonant with the growing body of international customary law concerning indigenous rights. Drawing in the wider context of the court case, it is shown how changes occurred from a broad-based human rights-oriented local-global alliance supporting the case, to the leading role taken by the non-governmental organisation (NGO) Survival International in a campaign targeting an international audience. The choice of a confrontational strategy vis-à-vis the government has met with considerable resentment not only from government circles but also from the liberal section of civil society in Botswana. It is argued that the divisions created between local organisations have had adverse effects for the San, and what was initially perceived as a positive outcome of the court case has not led to an improved situation for the applicants, or for the San in general.

Keywords:

• indigenous rights
• human rights
• CKGR court case
• transnational movements
• NGOs
• donors
• advocacy

Acknowledgements

The material for this paper was collected through participation in many of the meetings and other events that are discussed here, as well as regular reading of newspapers and other forms for public communication. I attended the preparations and many sequences of the court case, especially during the first year, and discussed it with anyone connected to the case willing to offer an opinion. It is part of a wider study of the relationship between state and indigenous organisations in southern Africa.

I want to extend my thanks to the different San organisations for welcoming my presence over the years. Thanks to Mathambo Ngakaeaja for many useful conversations, to Kuela Kiema for reflecting on the complex social mechanisms within CKGR, and to Jumanda Gakelebone of FPK. Thanks to the legal teams for assistance in my search for documentation. I want to thank good colleagues at the University of Botswana for many discussions, and Maitseo Bolaane and Janet Hermans for good companionship. Lastly thanks to the other participants of the American Anthropological Association's session in November 2008, when this paper was first presented, and to Jennifer Hays for so ably following it up to publication.

Notes

See for instance Andrea Muehlebach, ‘What Self in Self-Determination? Notes from the Frontiers of Transnational Indigenous Activism’, Identities: Global Studies in Culture and Power no. 10 (2003), 241–68; Ronald Niezen, The Origins of Indigenism. Human Rights and the Politics of Identity (Berkeley: University of California Press, 2003); Henry Minde, Indigenous Peoples. Self-determination, Knowledge, Indigeneity (Delft: Eburon, 2008).

James Anaya, Indigenous Peoples in International Law, 2nd ed. (Oxford: Oxford University Press, 2004).

Harald Eidheim, Stages in the Development of Sami Selfhood (Oslo: Department of Social Anthropology, University of Oslo, 1992), 4.

Damien Short, Reconciliation and Colonial Power. Indigenous Rights in Australia (Aldershot: Ashgate, 2008).

Julie Taylor, ‘Celebrating San Victory Too Soon? Reflections on the Outcome of the Central Kalahari Game Reserve Case’, Anthropology Today, no. 3 (2007), 3–5; Sidsel Saugestad, ‘Notes on the Outcome of the CKGR Court Case, Botswana’, Before Farming, no. 4 (2006).

Sally Engle Merry, ‘Transnational Human Rights and Local Activism: Mapping the Middle’, American Anthropologist 8, no. 1 (2006): 41.

George Marcus: ‘Ethnography in/of the World System: The Emergence of Multi-sited Ethnography’, Annual Review of Anthropology 24 (1995), 95–117.

Sidney Tarrow, The New Transnational Activism (Cambridge: Cambridge University Press, 2005); Jeff Goodwin and James M. Jasper, The Social Movements Reader. Cases and Concepts, 2nd ed. (Chichester: Wiley-Blackwell, 2009), 4.

Thomas Risse and Kathryn Sikkink, ‘The Socialization of International Human Rights Norms into Domestic Practices: Introduction’, in The Power of Human Rights. International Norms and Domestic Change, ed. Thomas Risse, Stephen C. Ropp and Kathryn Sikkink (Cambridge: Cambridge University Press, 1999), 18.

Willem van Genugten and Camilo Perez-Bustillo, ‘The Emerging International Architecture of Indigenous Rights: The Interaction between Global, Regional and National Dimensions’, International Journal of Minority and Group Rights no. 11 (2004): 381.

Dorothy Hodgeson, ‘Precarious Alliances’, American Anthropologist 104, no. 4 (2002): 1086–97.

http://www.geocities.com/reteng_we_are_here/ (accessed 1 June 2009).

Merry, ‘Transnational Human Rights’.

Danielle Resnick makes an interesting analysis of the two disputing frames in the article ‘The Benefit of Frame Resonance Disputes for Transnational Movements: The Case of Botswana's Central Kalahari Game Reserve’, Social Movement Studies 8, no. 1 (2009), 55–72. My conclusions are different from hers, as will be explained later.

Government of Botswana, Fact Finding Mission (Garabone: Government Printer, 1985).

George Silberbauer, Report to the Government of Botswana on the Bushman Survey (Gaberones: Bechuanaland Government, 1965).

Sidsel Saugestad, The Inconvenient Indigenous. Remote Area Development in Botswana, Donor Assistance and the First People of the Kalahari (Uppsala: Nordic Africa Institute, 2001).

Kuela Kiema gives an insider's description of this turbulent history in Tears for My Land. A Social History of the Kua of the Central Kalahari Game Reserve, Tc'amnqoo (Gaborone: Mmegi Publishing House, 2010).

A working definition is found in UN documents that bring out four principles to be taken into account: (a) priority in time, with respect to the occupation and use of a specific territory; (b) the voluntary perpetuation of cultural distinctiveness, which may include aspects of language, social organisation, religion and spiritual values, modes of production, laws and institutions; (c) an experience of subjugation, marginalisation, dispossession, exclusion or discrimination, whether or not these conditions persist; and (d) self-identification, as well as recognition by other groups, as well as state authorities, as a distinct collectivity (E/CN.4/Sub.2/ACV.4/1996/2). See also Anaya, Indigenous Peoples in International Law.

Channeled initially through the Copenhagen-based International Working Group for Indigenous Affairs (IWGIA).

N|oakwe is Naro and means ‘the Red People’, a commonly used label of self-designation, in contrast to ‘the Black People’, the Bantu peoples who make up the majority. The early activists tried to establish N|oakwe as a common (generic) name for all San people, but because of the substantial difference between the San languages this has not succeeded.

Saugestad, The Inconvenient Indigenous, 198.

Ambassadors and an official of the European Commission in Gaborone visited the area on 22–23 May 1996 and were assured by the government representatives that ‘not only no forcible resettlement will be carried out but social services to people who wish to stay in the reserve will not be discontinued and economic development related to wildlife or tourism activities will also be encouraged’. ‘Ambassadors Visit Ghanzi to get First Hand Information about Xade Issue’, Dayly News, 29 May 1996.

Two representatives from each of the seven Central Kalahari Settlements, and The First People of the Kalahari (FPK), Kuru Development Trust, WIMSA Botswana, Ditshwanelo (the Botswana Centre of Human Rights) and Botswana Council of Churches.

Generally perceived as being ‘from Cape Town’, although the office was in Stellenbosh.

This process was underway, and was completed in 1999. See R. Chennells and A. du Toit, ‘The Rights of Indigenous Peoples in South Africa’, Robert Hitchcock and Diana Vinding, eds. Indigenous Peoples' Rights in Southern Africa, IWGIA Document (Copenhagen: IWGIA, 2004), 98–113.

Kg'oesakeni was the original name, meaning ‘in search of life’. The settlement later became known as New Xade, reflecting internal debates among those who had came from the original Xade. See Kiema, Tears for My Land.

See note 26.

MISCA No. 52 of 2002 in the matter between Roy Sesana (1st Applicant), Keiwa Setlhobogwa and 241 others (2nd and further Applicants) and the Attorney General (in his capacity as recognised agent of the government of the republic of Botswana, (Respondent).

http://www.gov.bw/basarwa/background.html (accessed July 2009). For details see Sidsel Saugestad, ‘“Improving their Lives”. State Policies and San Resistance in Botswana’, Before Farming 4 (2005).

Botswana Guardian, Apri1 12, 2002.

Press Statement, Ditshwanelo, 24 April 2002.

Press Statement, Ditshwanelo, 11 July 2004.

The cost is not known. Survival International does on principle not solicit funding from states, in order to ensure its independent position, and financial or other details about the scope of assistance to the applicants are not available.

In Norway, the protest against a dam encroaching on Saami reindeer-herding territories was rejected and a dam was built. But the massive mobilisation of public opinion led to a number of government initiatives that in the following years significantly changed the position of the Saami indigenous minority within Norwegian law and constitution. (See Trond Thuen, The Quest for Equity. Norway and the Saami Challenge (St. John's: ISER, 1995).)

http://www.survival-international.org/files/pressroom/bushmen_press_pack/case_in_numbers.doc (accessed July 2009).

Some had fallen out when mandates were transferred to the new legal team; some had died in the meantime.

Later this ruling was modified to include spouses and older children.

Richtersveld Community v. Alexor and Govt of Republic of South Africa, Constitutional Court Case 19/03, 14 October 2003. See T.M. Chan, ‘The Richtersveld Challenge: South Africa Finally Adopts Aboriginal Title’, in Indigenous Peoples' Rights in Southern Africa, ed. Robert Hitchcock and Diana Vinding (Copenhagen: IWGIA Document, 2004), 114–33.

Mabo and Others v. Queensland No 2, High Court of Austrlia, 1992.

Dow, page 232 in transcript of judgement.

Mathias Guenther, Tricksters and Trancers. Bushmen Religion and Society (Bloomington: Indiana University Press, 1999).

James Scott, Weapons of the Weak. Everyday Forms of Peasant Resistance (New Haven, CT: Yale University Press, 1985).

Clement Ng'ong'ola: ‘Sneaking Aboriginal Title into Botswana's Legal System Through a Side Door. Review of Sesana and Others v. the Attorney General’, University of Botswana Law Journal (December 2007): 127–8.

Ibid.

Judge Dow, 189–90, in transcript of judgement.

James Workman compares the prohibition on access to water to siege tactics used through history, ‘using thirst and water to coerce insubordinate people’, in Heart of Dryness (New York: Walker Publishing Company, 2009), 46. See also Hitchcock, this volume.

Founding affidavit signed by Roy Sesana, February 2002. Not published.

Ng'ong'ola, ‘Sneaking Aboriginal Title into Botswana's Legal System’, 111.

In a much publicised case about traditional land rights in northern Norway (the ‘Black Forest’ case) the entitlement for local people according to ILO convention 169 was recognised, as Norway has signed the convention. But even then it was ruled that the documentation of traditional land use provided sufficient grounds for the recognition of their legal rights. Bjørn Bjerkli, ‘Landscape and Resistance. Transformation of Saami Common Land from Dwelling to Political Landscape’, Acta Borealia (2010, forthcoming).

This started immediately after the verdict. Wildlife scouts would not allow wives and children of applicants into the reserve as they tried to return in January 2007. ‘Basarwa Not Allowed into CKGR?’, Mmegi, January 5, 2007.

‘Basarwa Want Permission to Drill a Borehole in the CKGR’, Sunday Standard, 20 November 2009.

James Anaya: ‘The Situation of Indigenous Peoples in Botswana’, United Nations, A/HRC/15, 22 February 2010.

By the time of breaking up, the First People of the Kalahari was also suffering from internal strife over lack of payment to staff and disagreements over further strategies. ‘FPK Broke, Embroiled in Internal Fights’, Sunday Standard, May 24, 2008.

Judge Phumaphi, page 398, in transcript of judgement.

The issues were: Concern that community members were arrested when trying to re-enter CKGR, communities still denied the right to bring goats back to CKGR, community members not issued with special game licences, restrictions on the amount of water allowed into CKGR. The minister promised to kick start meetings on CKGR.

Joint Press Statement from The Government of Botswana, the CKGR Residents' Committee and the CKGR Non-Governmental Organisations' Coalition on the Central Kalahari Game Reserve Consultation Process, Gaborone, 3 June 2010.

Summary of reactions to the CKGR Joint Statement of 3 May 2010 prepared by the CKGR NGO coalition 18 June 2010.

Ibid.

Mmegi, July 22, 2010.

Report of the African Commission's Working Group on Indigenous Populations/Communities. Mission to the Republic of Botswana, 15–12 June 2005. See also Press Release from the African Commission, 10 August 2010, http://www.achpr.org (accessed 10 August 2010).

Will Kymlicka, Politics in the Vernacular, Nationalism, Multiculturalism and Citizenship (Oxford: Oxford University Press, 2001), 132.

This analysis is based on information from Survival's webpage and other information material, talks with Survival staff and the applicants during the court case, and an interview with Stephen Corry and other SI staff in London in October 2004.

SI Press Release, 11 May 2010; see also http://www.survivalinternational.org/about/wilderness-safaris (accessed May 2010).

http://www.debeersgroup.com/en/Media-centre/Press-releases/2009/Historic-Investment (accessed January 2010). See also Ian Taylor and J. Mokhawa, ‘Not Forever: Botswana, Conflict Diamonds and the Bushmen’, African Affairs 407 (2002): 261–83; and Kenneth Good, Diamonds, Dispossession and Democracy in Botswana (Suffolk: James Currey, 2008).

See for instance the infamous front cover of The Ecologist of September 2003 ‘Dying for de Beers’.

Concession has been given for mining in the Gope area, and will probably start up as soon as the market picks up after the 2008/2009 recession.

Resnick, ‘The Benefit of Frame Resonance Disputes for Transnational Movements’.

The USA based Indigenous Land Rights Fund and Diamonds for Africa Fund, a registered charity that solicits funding ‘to help rebuild African communities harmed by the diamond trade’, http://diamondsforafricafund.org (accessed February 25, 2010).

SI Press Release, 8 October 2005.

SI Press Release, 12 September 2005.

‘Survival International Answers to Martin Horwood, MP’, Mmegi, November 30, 2007.

Resnick, ‘The Benefit of Frame Resonance Disputes for Transnational Movements’, 68. Her analysis is a perfectly logical argument seen from the outside, but does not address the divisions within local organisations. Hence we draw different conclusions about long-term impact.

Botswana Guardian, November 25, 2005.

The Mirror, November 30, 2005.

The Mirror, November 30, 2005.

Statement 6 July 2005, http://www.wimsareg.org (accessed July 2005), page no longer functional.

Jacqueline Solway, ‘Human Rights and NGO “Wrongs”: Conflict Diamonds, Culture Wars and the “Bushman Question”’, Africa 79, no. 3 (2009), 321–46.

Sidsel Saugestad, ‘Beyond the “Columbus Context”: New Challenges as the Indigenous Discourse is Applied to Africa’, in Indigenous Peoples. Self-determination, Knowledge, Indigeneity, ed. Henry Minde (Delft: Eburon, 2008), 157–73.