A panel of five Court of Appeal judges will on the 27 of January deliver judgment in a case in which 189 residents of the Central Kalahari Game Reserve (CKGR) are appealing against judgment passed by Lobatse High Court Lashkavinder Walia last year.
Walia’s judgment states that government is not obliged to supply them with water inside the reserve.
In his submission, advocate Gordon Bennet, representing the CKGR residents, said that the way in which the government is treating the residents of CKGR can fairly be said to be “destitute of human kindness or pity or unfeeling”.
He further said that the applicants have accordingly been subjected “to inhuman treatment”.
The government, said the Britain-based advocate, takes active steps to ensure that animals in the reserve are given water they require whilst at the same time it refuses to let the applicants have access to water. They expected them to beg from passing tourists whilst animals use watering holes.
Bennet said that this lowers the applicants in esteem and honour “both in their own eyes and in the eyes of others. Their need for water, he added, is regarded as less deserving of respect than that of wild animals”.
“That constitutes degrading treatment because the applicants are thereby humiliated or debased; no respect is shown for their human dignity,” he said.
Bennet said the government may genuinely think that this is the only way to exclude human settlements in the reserve and thereby achieve the sole purpose for which the reserve was created, adding that it may even consider that it is in the interest of the applicants themselves to relocate to New Xade and Kaudwane but that this is irrelevant as inhuman and degrading treatment cannot be justified on these or any other grounds.
He also submitted that there is overwhelming evidence that the international community, of which Botswana is no less prominent a member, now recognizes that it is crucial component of human dignity that people should have access to water.
Bennet further said that, in a 2007 report, the United Nations High Commission for Human Rights concluded that, “The increasing references to drinking water in human rights instruments as a component of other human rights similarly highlights the growing importance of the issue to the international community as does the inclusion of access to drinking water and sanitation amongst the Millennium Development Goals. Importantly an increasing number of states are recognizing safe drinking water as a human right in their constitutions as well as national legislation whilst national Courts are enforcing it as a justifiable right”.
Responding to submissions by Bennet, advocate Paul Belger, who has been instructed by Boingotlo Totend, submitted that the government was not trying to frustrate the applicants’ access to water as it has provided the applicants and other communities with sufficient water outside CKGR.
The applicants have eschewed the government’s provision of services in favour of living traditionally in the CKGR. In so doing they have elected to leave supply of water provided by the government.
In consequence of this election, he said, the applicants have frustrated their own access to water. Further that it is significant to note that in giving effect to socio economic rights in terms of international conventions, a considerable margin of appreciation is afforded the states to determine within their available resources the realization of those rights.
On the submission made earlier by Bennet that his clients do not seek so-called water rights but rather claim that they have the right without permission to collect and pump water for domestic use anywhere in the CKGR, Belger said that the law of this country clearly states that “where land amounts to tribal land then the rights claimed by the applicant are subject to the approval of the government as the owner of land in the case”.
