Former Botswana High Court judge Justice Key Dingake has criticised Botswana’s human rights record particular with regard to the rights of Basarwa and LGBT community. Dingake said there was still a lot to be done to enhance the rights of indigenous and sexual minorities in Botswana. Addressing the Commonwealth Magistrates and Judges Association (CMJA) Conference in Brisbane, Australia recently Dingake said while Botswana has made some strides in developing the San people by extending basic services such health and education to them, a lot still remains to be done. Despite the Constitution recognizing the rights to equality of every person, he said, ‘equality’ remains distant to the San people on many fronts including health, education and participation in employment opportunities in the public service and private sector as well as in business. “Going forward, it is pertinent, to reset the relationship between government and the San, by acknowledging the San as an indigenous group; by cultivating a productive working relationship with the San and involving them in decision ÔÇô making processes.”
He said for this engagement to bear fruit it needs to be based on the aspirations and priorities of the San people. “Nothing for them without them being involved.” He said Botswana must speedily acknowledge the mistakes of the past and seek to re-dress historical injustices through Law.“Despite Botswana’s remarkable economic growth over the years this particular community remain marginalized and very few San students successfully go through the education system. There is a huge gap in terms of access to education, health and employment for the San and the general population.”
Dingake cited the lack of the use of Khoe and San languages as medium of instruction in primary schools as one of the primary factors that inhibit school performance of Basarwa children. Setswana and English are the only languages of instruction Botswana schools.A 2016 study :Mother Tongue Education: Lessons for Botswana by Lone E. Ketsitlile, Uju C. Ukwuoma (Botswana International University of Science and Technology)found that for the Basarwa children ,for whom Setswana and English are usually second and third languages, learning becomes a problem in schools especially upon initial entry as they often do not understand the language of instruction.“What makes the problem worse for Basarwa children is that the gateway examinations at primary and secondary schooling are in English. These examinations are very important, because entry into college and university depends on them,” the study says.
Speaking at the CMJA Conference Dingake noted that one of the major challenges to realisation of the rights of the Basarwa is the failure of government to recognise their Indigenous. “The official position of government is that all the inhabitants of Botswana, save for Immigrants, and are indigenous.”
He also made reference to the forced removal of Basarwa from the Central Kalahari Game Reserve (CKGR) with the government relocating them to nearby settlements.
Between May-June of 1997, the Government of Botswana started the process of relocating the Basarwa from the reserve to nearby settlements outside of the reserve. The court subsequently (in the Sesana v. The Attorney General case) restored the Basarwa’s right to the CKGR as their ancestral land, unanimously holding that the Basarwa had been in lawful possession of the land.
With respect to the rights of the Lesbian, gays, bisexuals, transgenders and intersex(LGBTI) Community Dingake said was imperative that judges effect the promise of the Constitution and disregard their personal opinions. He said they should accept “as they should” that their own personal opinions, social morality and religious views cannot override universal human rights and fundamental freedoms.
“Due to political considerations, legislators are often unwilling to take the necessary steps to repeal laws that criminalise same-sex intimacy or discriminate against LGBT persons. On the contrary,” he said, “anti-gay and homophobic rhetoric seems to have become a key talking point of most elections and an issue for rousing sensational sentiments in the absence of substantive democratic dividends.”
Justice Dingake said the courts have become the last resort for appropriate remedy in the absence of the will to redress the violations against LGBT persons through positive, non-discriminatory policies. He said as an independent, non-political branch of the State, the judiciary, in exercising its mandate as the interpretative organ has an important role in nullifying laws that violate the bills of rights of constitutions. He made reference to the March 2016 Court of Appeal ruling that held that the refusal by the government to register LEGABIBO, an organization of lesbian, gay, bisexual, transgender and intersex (LGBTI) people, was unconstitutional. The Court of Appeal upheld the earlier decision of the High Court.