Thursday, September 24, 2020

Boko, Molokomme to shed lots of tears before bedtime

When I finished reading Duma Boko’s letter to the Attorney General dated January 8, I felt that it was so powerful, so overwhelming that I would not have been surprised if the Attorney General wrote back and said, “OK let all Basarwa return to the Central Kgalagadi Game Reserve (CKGR).”

Then the Attorney General, Dr Athaliah Molokomme, responded by return mail on February 15 and she was dazzling. I imagined Boko almost having a heart attack as he went through the letter.
And the zeitgeist of the debate seemed to be trapped in the pre- CKGR judgement belligerence.
The December judgment, which ended Botswana’s longest-running legal battle, called the

government’s decision to relocate Basarwa from the CKGR unconstitutional and ruled that the Basarwa were free to return to the game reserve.

Boko believes that the judgement confirmed the Constitutional right of all Basarwa who were relocated out of the CKGR to go back. The Attorney General, on the other hand maintains that “our understanding is that legally, only the 189 individuals listed as applicants in the case are the beneficiaries of the court order, therefore, only they will be allowed to enter the CKGR, with their minor children, without permits.”

The haggling, hedged in combative language suggests that a negotiated outcome is unlikely. Boko, for example, ends some of his sentences with, “if authorization is refused without sufficient reason we are instructed to apply to the Court for appropriate relief.”

Dr Molokomme, on the other hand, says things like, “While you are fully entitled to express your opinion on what you perceive to be the role of the Government in the aftermath of the court judgement, it is inappropriate that you should be advising or dictating to Government what it should now take.”

And this is what she says about Boko’s letter, “It takes on a rather litigious tone, and in my view, has a decidedly belligerent flavor.”

At stake is the future of 189 Basarwa who won their court case to be allowed back into the Central Kgalagadi Game Reserve. They suddenly find themselves with no water, no livestock, no automatic rights to hunting licenses and cut out from the outside world.

When I asked Boko if he was considering taking the issue back to court, he simply shook his head and pursed his lips, suggesting no words would be forthcoming. Then, he said: “I have spoken to the Attorney General and I am confident that she is committed to having this matter resolved amicably.”

The Attorney General actually ended her letter to Boko on a conciliatory note: “The government is also ready to play its role, and is actively working on ways of engaging in constructive discussions with the affected persons and other citizens to address the wider issues relating to the future of the CKGR. It would not, therefore, be useful if this was delayed or complicated by lengthy exchanges of correspondence between lawyers.”

Indications are that all the vitriolic letters and veiled threats of litigation are just mind-games and posturing as the two camps seize each other up before taking up seats on the negotiation table, some kind of a Persian auction where bids start at the very top and gradually move down to a sale.
Jeff Ramsay, spokesman for President Festus Mogae, was quoted in the media recently 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.

His comments were the latest sign that government is seeking to defuse a standoff that has generated years of bad publicity for Botswana.

This week government went further and withdrew a criminal case against some Basarwa who were caught hunting in the game reserve without licenses.

In his letter to the Attorney General, Boko requested that government should drop charges against all Basarwa facing prosecution for hunting without licenses. “Those people did not have licenses because they could not get them. They could not get them because, as all the three judges have held, from at least February 2002 the government refused to issue any further licenses for use in the Reserve unlawfully ( and unconstitutionally, in the view of the majority).

“In these circumstances it would be utterly wrong to prosecute these charges any further. We believe that many observers would regard such a course as vindictive and oppressive.

Please confirm that the relevant authorities will withdraw all outstanding charges as a matter of urgency, or explain why they have chosen not to do so.”

The Attorney General in her response said, “We have passed on your request to the Director of Public Prosecutions (DPP), and she is seized with the matter. In the meantime, it would be helpful if you supplied the DPP’s office with the names of the cases which you consider might be candidates for reconsideration in the light of the judgement.”

However, there will be lots of tears before bedtime. Boko is contesting the judgment’s decision not to award Basarwa costs of the marathon suit which go up to P2 million. He is expected to file an appeal with the appeals court next week.

Besides, a number of issues stand between Basarwa and government. Basarwa want to bring back their livestock into the game reserve. Basarwa, who currently do not have water, want to install a water pump inside the game reserve. Dr Molokomme wrote in her letter that “your intention to install a pump at the Mothomelo borehole is however not accepted. As you may be aware, Mothomelo borehole is the property of the Botswana Government, which according to the judgement, is not obliged to provide services to” Basarwa wishing to go back to the CKGR.

Basarwa also want to bring their livestock back to the game reserve with them. Dr Molokomme, however, maintains that “the government’s position on livestock in game reserves is quite clear. The Diseases of Animals Act empowers the Minister to make an order declaring an area a “stock free zone.” In exercise of that discretion the Minister, on 10th December 1982 declared all Game Reserves including CKGR, stock free zones.

Basarwa also want to be granted special hunting licenses. “Prior to the 2002 relocation, the practice of the Department of Wildlife and National Parks (DWNP) was to issue special game licenses to CKGR residents if and when S&CD was satisfied that they were principally dependent on hunting and gathering. As Mr. Matlhare accepted in cross-examination, this was not the correct procedure.

The proper course would have been to issue permits under Regulation 45 of the 2000 Regulation. This does not require the permit holders to be dependent on hunting or gathering.

Please confirm that you accept that this is the case (or if you do not explain why not),” wrote the lawyer for the Basarwa, Duma Boko.

Molokomme, however, maintains that the judgement does not give the Basarwa automatic rights to Special Game Licenses; the applicants should apply for them in a normal way. The DWNP will in turn consider each application and decide on its merits. This office cannot therefore, make the undertaking you seek,” in your letter.

Basarwa also want government to reinstate licenses for their two way communication radios. Before their relocation, residents of the reserve used two-way radios to maintain contact with the outside world. The radios were seized by the police after their licenses had expired and are now held at Ghanzi Police Station.

The Botswana Telecommunications Authority says it cannot process any application for new licenses without the written authority of the Director of DNWP. This is the effect of the 2000 Regulations which provide that: “No person shall within a national park or game reserve erects… any building, structure or facility except with the written authorization of the Director.

Boko argues that “A radio license is clearly not a building. We do not believe that it is a structure or a facility either.”

Boko asked the Attorney General to confirm that for the issue of radio licenses will be given. “If authorization is refused without sufficient reason we are instructed to apply to the Court for appropriate relief.”

Molokomme pointed out that the issue of radio licenses was never discussed in court and that the confiscation of the radios was “clearly lawful because by your own admission, their licenses had expired. 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 the confirmation you seek in your letter.”

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