Gordon Bennet must have spent many nights burning the midnight oil. The crack lawyer representing Basarwa in their case against eviction from the Central Kgalagadi Game Reserve this week lugged a bag heavy with 400 pages of his summation into the Lobatse High Court.
His mountain of court documents dwarfed the about 200 or so pages put together by the Botswana government’s lawyer, Sidney Pilane. Basarwa are hoping that Bennets long late nights will finally payoff and are already rubbing their hands in anticipation of victory.
It will take another few months, but then they will finally know whether they have won their marathon legal battle to remain on their traditional lands in the Kalahari Desert.
The high court in Lobatse, about 70km south of Botswana’s capital, Gaborone, this week heard closing arguments from Bennet who says the evictions were “unlawful and unconstitutional.”
Bennett told IRIN in a telephone interview that “the [Botswana] government had shamefully abused its powers.”
The CKGR is a reserve about the size of Switzerland. Created in the last days of British colonial rule before Botswana’s independence in 1966, it guaranteed the San – also known as Bushmen or Basarwa ÔÇô continued occupation of land their ancestors had used for thousands of years.
The San “have a right of use and occupation”, Bennett told the court, pointing out that neither the British colonial system nor the Botswana government had passed legislation to remove this right.
According to documents put before the court by Bennett, Bushmen in the reserve had stated they did not want to leave the reserve a number of times – in 1990, 1995, 1997, 1999, 2000 and 2001.
He argued that lawyers acting on behalf of Botswana’s government had produced no evidence in court to suggest that the Bushmen had decided otherwise by the time evictions forced them off the reserve in 2002.
Bennett said the state had not brought before the court, any testimony from a Gana or Gwi Bushmen, saying they had agreed to relocate. This was a “telling omission”, he said. The Bushmen had moved off their land because of “intolerable pressure by the government to leave the reserve”.
Bennett told IRIN his clients had been subjected to a government strategy that had “left them with nothing”. Water tanks and livestock had been confiscated, he said, and they had been prevented from hunting, making them “trespassers on their own land”.
After the water tanks were removed, the Bushmen had used donkeys to ferry water, but these had also been taken away because the government said the donkeys threatened wildlife with disease.
On a visit to the reserve last year, Bennett said he had seen “rope burns” caused because Bushmen were dragging water barrels long distances to the settlement the government had allocated them.
The government had withdrawn services it admitted were “basic” and “essential” for the Bushmen, including pensions, Bennett said. “That cost must have paled into insignificance compared to the millions and millions spent on infrastructure, roads, water supplies and so on at New Xade and Kaudwane [the government’s resettlement camps].”
Survival International, an advocacy group, has said the Bushmen’s evictions from the game reserve in the Kalahari, are driven by the Botswana government’s desire to get at diamond deposits. The government has denied this.
“The test of a mature democracy is its ability to tolerate and respect the choices made by its minorities, and to resist the temptation to impose upon them a way of life they may not want and do not seek,” the rights group said.
Outside the courthouse in Lobatse, Roy Sesana, a San spiritual leader, said, “We are so happy that after such a long case the court is finally hearing why we must be allowed to go home. We all hope the judgment comes soon, so that we can go back to our land.”
A verdict will be handed down after the panel of three judges has reviewed all the documents presented, and about 19,000 pages of trial transcripts.
Should the panel find in favour of the government, Bennett’s clients will appeal and extend the “the longest and by far the most expensive case in Botswana legal history for the [country’s] most impoverished people.”
The Botswana government was unavailable for comment.