Saturday, September 26, 2020

Basarwa to appeal High Court judgement

Basarwa are this week expected to file an appeal against part of the December judgement by the High Court in Lobatse which ruled that government decision to relocate them from the Central Kgalagadi Game reserve (CKGR) was unconstitutional.

The lawyer acting for Basarwa, Duma Boko, has already notified the Attorney General’s Chambers that he would be challenging the court’s decision not to award costs of the suit to his client.

The CKGR case, which is reported to be the longest running in the history of Botswana, is understood to have ran up legal costs of close to P2 million. Boko would not discuss the appeal.

Boko may also file a fresh case against the relocation of Basarwa from the CKGR in 2005.

The December judgment, which ended Botswana’s longest-running legal battle, called the government’s actions unconstitutional and ruled that Basarwa were free to return to the game reserve.

The government response to the ruling is that only the 189 Basarwa named in the suit would be allowed to return, and park officials denied access to several others who sought to enter the park last month.

In a letter to the Attorney General, Dr Athalia Molokomme, the Basarwa lawyer says Basarwa who were relocated from the CKGR in 2005 and did not form part of the 189 who filed a law suit against government “seem therefore to have unanswerable claims in damages for further violations of their legal and constitutional rights. These claims will be pursued through the courts unless the government indicates that in principle it is willing to discuss a sensible settlement.”

Boko said they had begun “to assemble a list of those excluded or evicted from the reserve during this period, and to prepare witness statements which give a dramatic account of their experiences.”

“The forcible nature of their exclusion or removal is plain to any visitor to the settlement. As our dossier of photographs will demonstrate, almost every hut in Molapo (for example) still contains the cooking utensils, rugs and other personal effects of its former inhabitants. Those who know the people of the reserve will know that they would never have left their belongings behind if they had moved voluntarily.

Boko may also file another case against government on behalf of CKGR residents. This follows a decision by government to withdraw two way radio licenses for CKGR residents.

In the letter to the Attorney General, Boko indicated that he has received instructions from his clients to take the matter to court if it is not resolved amicably with government.

Before their relocation, CKGR residents used two way radios to maintain contact with the outside world. The radios were, however, seized by the police after their licenses expired and are now held at Ghanzi Police Station.

According to Boko’s letter, Botswana Telecommunications Authority “has said it cannot process any application for new licenses without the written authority of the Director of Department of Wildlife and National Parks.” The BTA says this is the effect of Regulation 37(1) (f) of the 2000 Regulations, which provide that: “No person shall within a national park or game reserve erect… any building, structure or facility except with the written authorization of the Director.”

Argues Boko: “A radio aerial is clearly not a building. We do not believe that this is a structure or facility either.”

It has emerged that Advocate Bennett, who was acting for Basarwa of CKGR in their marathon law suit on December 20, asked the Acting director whether written authorization would be forthcoming, but the Acting Director said he would need to take instructions from his superiors.

In the letter, Boko argues that “it is vital that our clients have a means of communication with people outside the reserve in the event of medical or other emergency. The presence of four radios in the reserve cannot conceivably prejudice wildlife. We, therefore, formally apply on behalf of our clients for any written authorization that may be required.”

Boko further stated that, “if authorization is refused without sufficient reason we are instructed to apply to the Court for appropriate relief.”

The Attorney General in her response, however, stated, “As you know, the claim about radios was not part of the relief sought in your case, and is, therefore, not canvassed in the judgement. Their confiscation was clearly lawful because, by your own admission, their licenses had expired by then.

The Applicants should, therefore, follow the procedure laid down when applying for licenses to operate these radios. In the light of the foregoing, it follows that I have no basis for providing you with confirmation you seek in your letter.”

Government, however, seeks to defuse a standoff that has generated years of bad publicity for Botswana and may resolve the issues amicably.

Jeff Ramsay, spokesman for President Festus Mogae, was recently quoted in the international media as saying that all Basarwa, whether named in the suit or not, were free to enter the game reserve while the government developed a new permanent policy on the issue. Ramsay said 44 Bushmen, including several not named in the suit, entered this month.

“Those who wish to go into the park can do so,” Ramsay said.

Government this week went further in extending an olive branch to Basarwa and dropped charges against some who were caught hunting in the game reserve without licenses. Government has also asked the lawyer acting for Basarwa, Duma Boko, to compile a list of cases against Basarwa which he feels should be dropped following the recent High Court judgment.

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