Botswana: The San (Bushmen) Rights Case

Botswana: The San (Bushmen) Rights Case

Order Code RS21956
October 19, 2004
CRS Report for Congress
Received through the CRS Web
Botswana: The San (Bushmen) Rights Case
nae redacted
Research Associate
Foreign Affairs, Defense and Trade Division
Summary
In November 2004, the San people of Botswana are expected to continue their court
case against the government of Botswana. The San argue that they were illegally
removed from their ancestral land within the Central Kalahari Game Reserve (CKGR).
International human rights groups contend that the manner in which the San were
removed violated international human rights laws. The discovery of diamond reserves
within the CKGR has led advocacy groups to argue that the San have been removed to
allow diamond mining to go ahead in the CKGR. Both the government of Botswana
and leading diamond mining companies deny this accusation. How the court case is
resolved could potentially have regional and global implications for disputes involving
other “first peoples” of the world. The case is an issue of concern to the Congressional
Human Rights Caucus, which held a Members’ briefing on it in September 2004. This
report1 will be updated.
Background
The culture of the San people of Southern Africa, a traditionally hunter-gatherer
ethnic group popularly known as the Bushmen, is thought to be among the oldest on earth.
Many anthropologists believe that the San have a unique kinship with the Kalahari desert,
the natural habitat in which they live, and that their understanding of this environment is
unparalleled. Many observers maintain that the San traditional way of life is under threat
because of the government of Botswana’s decision to relocate the San peoples out of the
Central Kalahari Game Reserve (CKGR) into government-designed settlements.2
1 This report was prepared under the supervision of (name redacted), specia
list in African Affairs.
2 Major sources for the paper include Taylor I. and Mokhawa. G., “Not forever: Botswana,
conflict diamonds and the bushmen,” African Affairs, Apr. 2003; Government of Botswana,
“Relocation of Basarwa from the Central Kalahari Game reserve,” available at
[http://www.gov.bw/basarwa/background.html]; Hitchcock R. K., “We are the First People:
Land, Natural Resources and Identity in the Central Kalahari,” Botswana,Vol 28: 4, Dec. 2002;
IRIN, “Botswana: culture under threat - Special report on the San Bushmen (1),” Mar. 5, 2004;
(continued...)
Congressional Research Service ˜ The Library of Congress

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In 1961 Britain created the CKGR to protect the San traditional way of life. In 1966,
Botswana was awarded its independence from British rule. Immediately after
independence, the Botswana Democratic Party (BDP), which remains in power, declared
that Botswana would be a non-racial country. In 1978, the government of Botswana
launched its Remote Area Development Program (RADP) to bring services to Remote
Area Dwellers (RAD), of which the San were key target beneficiaries. Under the RADP
program, the government both provided water and social services to the San, and created
new settlements for them outside of the CKGR. The biggest of these was New !Xade,
which provided extensive social services, including hostels and a maternity ward.3 In
1986 the Minister of Commerce and Industry announced that Botswana would
compulsorily relocate the San people outside of the CKGR. No action was taken to
implement this decision until 1997 though some San voluntarily relocated during this
time. In 1997, !Xade, a functioning San community within the CKGR, was completely
relocated. 1996-2002 saw an intensification of the government’s policy of relocation.4
Diamonds. Implementation of the government’s compulsory relocation policy
followed the discovery of a diamond kimberlite (i.e., a volcanic “pipe” containing
diamond-laden material) in 1982 at Gope, inside the CKGR, as a result of prospecting by
two firms, Falconbridge and De Beers. In 1996, the full evaluation of the site — which
caused Debswana to state that it would not be commercially viable to mine the site — was
completed. 5 In 2000, however, De Beers was awarded a three-to-six year retention
contract for the Gope site. It endows De Beers with mining rights to the site until 2006.
Despite the reported non-viability mining at the site, some international human rights
groups in Botswana, Britain and southern Africa contend that the future potential for
diamond mining was the main reason for the removal of the San.6
Government of Botswana Position
The government of Botswana began intensified its efforts to remove remaining San
from the CKGR in 1997. Approximately 1,739 San were relocated to New !Xade and
Kaudwane. Recent statistics suggest that over 689 San lived in the CKGR in 2001, but
2 (...continued)
Survival International, “Bushman aren’t forever, Botswana: diamonds in the Central Kalahari
Game Reserve and the Eviction of Bushmen,” Oct. 31, 2003; and IRIN, “Botswana: Court case
to determine rights of Bushmen,” Jul. 1, 2003.
3 Roman letter orthographic devices, such as exclamation marks, are used to represent unique
sounds that appear in Khoisan languages, such as a variety of “clicks.”
4 Survival International, “Bushman aren’t forever...” Survival International is a British human
rights advocacy group which defends the rights and claims of the first peoples of the world. See
also Hitchcock R. K., “We are the First People...”; “Botswana: the Mysterious Soul of Ancient
Africa: A Country Profile,” online at [http://www.safariweb.com/botswana/country.htm]; IRIN,
“Botswana: Culture under threat - Special Report on the San Bushmen (2),” Mar. 10, 2004.
5 Debswana is diamond mining company that is equally owned between De Beers and the
Botswana government.
6 Survival International, “Botswana: diamonds in the Central Kalahari Game Reserve and the
eviction of Bushmen,” October 31, 2003, online at [http://www.survival-international.org/
bushmen.html]; and Taylor I. and Mokhawa. G., “Not forever...”

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that just 17 San remained there by mid 2002. Since August 2002, more than 200 San
have returned to the CKGR. During this time, governmental officials accused the San of
attempting to create a “break away” state within the CKGR.7
The government maintains that the relocation of the San from the CKGR, where
their population averaged around 1,500 between 1988 and 1996, is important for the
preservation of the fauna and flora of the CKGR, and will allow the “Bushmen” to
develop according to the socio-economic practices of the larger contemporary society.
The government maintains that the San have largely stopped living their traditional way
of life because of their involvement with the Bakgalagadi,8 an ethnic group related to the
San which practices agriculture and animal husbandry, rather than a hunting and gathering
way of life. The government argues that the methods of cattle herding used by the San
are destroying the flora and fauna of the CKGR. In addition, the government claims,
traditional methods of hunting with a bow-and-arrow have been replaced with the use of
firearms, and that the San have formed permanent settlements within the CKGR, and no
longer live a traditional nomadic lifestyle. Some observers also allege that some San use
vehicles to hunt, a charge denied by the San. The Department of Wildlife and National
Parks has stated that the “biomass,” a measure of the volume of living organisms within
a designated area, more than doubled in the CKGR between 1986 and 1996.
While the government maintains that the relocation program is “encouraged” to
provide the San “the benefits of development,” it has also stated that it can no longer fund
its Remote Area Development Program (RADP), and that the San people must move out
of the CKGR to existing settlements, such as New !Xade. The government of Botswana
believes that the new settlements outside of the CKGR will better equip the San people
to live according to demographically predominant social norms.9
The Botswana government maintains that it has never employed force, coercion, or
threats during its relocation of the San. The government maintains that San are free to
stay within the CKGR, but that they would have to live without the government support
they enjoyed under the government’s RADP. The Botswana government formally ceased
providing services to Remote Area Dwellers (RADs) on January 31, 2002. It maintains
that this is solely due to operational costs.10
Views of the San and of Human Rights Organizations
Some international human rights advocacy groups maintain that the government of
Botswana is removing the San from the CKGR so that they cannot claim any rights to
minerals within the CKGR. One such group, Survival International, reports that by 2003
7 Hitchcock R. K., “We are the First People...”
8 The Bakgalagadi are descendants of the Nguni peoples of Northern Africa. They migrated to
Southern Africa as cattle herders and formed an inter-dependent relationship with the San, though
the former eventually became dominant within the relationship. The Bakgalagadi speak a dialect
akin to Setswana, a national language, and have a hierarchical social system, similar to that of
the Batswana. Hitchcock R. K., “We are the First People...”
9 IRIN News, “Botswana: Tensions Heightened Over Fate of Basarwa,” Oct. 31, 2003.
10 Hitchcock R. K., “We are the First People...”

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over two-thirds of the CKGR and approximately 80% of the San ancestral land had been
made subject to provisions governing diamond prospecting concessions. Analysts also
suggest that over six different mining companies have been awarded these concessions.
Other human rights experts doubt that the diamonds discovered are economically viable
at this time, and see the relocation program as being motivated primarily by the state’s
goal of pursuing environmental conservation within the CKGR for tourism purposes, as
well as due to the influence of cattle ranching interests.11
Human rights critics of Botswana’s government allege that in pursuing its relocation
policy between 1996 and 2002, the government used tactics ranging from monetary
incentives to the burning of huts, the removal of water supplies and physical assaults.
Survival International reports that the government of Botswana destroyed homes and
water tanks to make the return of the San to their former settlements impossible. One of
the San who has taken the government of Botswana to court is reported to have said that
the “government told us to leave or they would send the army in” He also alleged that
government agents threatened to achieve their goals through the use of murder and arson;
they reportedly threatened to lock his wife in her hut and torch it. Experts report that in
2002, the government of Botswana sealed existing boreholes and destroyed all San water
storage structures within the CKGR. It has also been reported that the government banned
non-governmental organizations (NGOs) from supplying San within the CKGR with food
and water.12
Critics also suggest that the government’s relocation policy is placing in peril the
ability of the San people to preserve and maintain their unique culture and language. The
Sans’ relocation outside the CKGR, for instance, is seen by some anthropologists as
eroding San social coherence because it has removed them from their ancestral lands and
grave sites, which have historically formed a central facet of San spiritual life and social
identity. Some San have named New !Xade the “Place of Death.” In addition, some
allege that resettlement may also be contributing to reportedly high rates of alcoholism,
social degradation, crime and HIV/AIDS in the resettled communities, where jobs and
other economic opportunities are rare. Some experts argue that although development
services and programs have been provided to the resettled San, they are inaccessible to
the San due to cultural and linguistic differences. These experts also argue that although
these programs are provided, they do not tackle the problems of social and economic
exclusion. Cultural differences also play a role; for example, the San believe the increase
in health problems in New !Xade is due to their inability to visit their ancestors’ graves.
Reports indicate that some San would be happy for mining to take place within the
CKGR, as long as they would be given jobs and paid royalties in accordance with the
rights to the land through ancestry that they are claiming.13
11 Survival International, “Diamond concessions in CKGR,” online at [http://www.survival-
international.org/bushmen-diamondmap.htm#]; Hitchcock. R., “Seeking Sustainable Strategies:
The Politics of Resource Rights among the Central Kalahari San,” and “Impacts of Hunting by
the People of Northwestern Kalahari Desert on Wildlife Sustainability,” both online at
[http://www.kalaharipeoples.org/documents/Fpk-ckg.htm].
12 Roy Sesana cited in Alastair Leithead, “Botswana’s bushmen battle for land,”BBC News, July
12, 2004.
13 BBC News, “Botswana’s bushmen battle...”; and IRIN, “Botswana: Culture under (2)...”

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Court Case
Although some San have reportedly accept the government’s resettlement policy,
others are fighting their removal from the CKGR in court. In order to press their case,
these San, with the assistance of NGOs, created a unified organization named First People
of the Kalahari (FPK) in 1993. In 1996, the San, along with Botswana human rights
groups, rallied together to form a negotiating team to press their claims during interactions
with the government. The group included representatives from FPK, Working Group of
Indigenous Minorities in Southern Africa (WIMSA), Ditshwanelo (Botswana’s Center for
Human Rights), and the Botswana Council of Churches. Their first step taken was to
register 250 San as residents of the CKGR. This offered the negotiating team a basis for
discussions with the Botswana government.14
Negotiations did not produce the results acceptable to the San and human rights
groups, however, and in April 2002, the San took the government to court in Botswana.
The court case focuses on the legality of the government’s policy of halting the provision
of essential services to RADs; the government’s potential legal responsibility to restore
these services; questions relating to the Sans’ claim to hold land and mineral ownership
rights in the CKGR on the basis of their ancestral occupation of the land in question; and
whether the government of Botswana used force to remove the San from the CKGR. The
case is being continued in New !Xade following initial hearings in the capital. These were
criticized by observers as being inaccessible to the plaintiffs, who are generally poor, lack
transportation and, in some cases, do not speak English or Tswana. Some observers see
the case as an example of Botswana’s democracy at work, but those defending the San
object that all the judges are Batswana, and argue that this shows the Botswana
government’s desire to tilt the judicial landscape in its favor.15
Legal Precedents. Two prior political decisions made by the first President of
Botswana, Seretse Khama, are central to this court case. First, asserting that Botswana
was a non-racial nation, he effectively decreed that all people of Botswana were indigenes
of the nation’s land. This presumption has informed the Botswana government’s decision
not to recognize the San as the original people of the Kalahari or as having any rights to
the land in the CKGR through ancestry. Second, under President Khama, the parliament
passed a law that decreed that all minerals are the property of the Botswana government.
This law, known as “Khama’s Choice,” means that if any mineral deposits of wealth are
discovered, they automatically belong to the Botswana government. This is important to
the San court case because the law may undermine San claims to the minerals within the
CKGR.16
14 Hitchcock. R., “Seeking Sustainable Strategies: The politics of resource rights among the
Central Kalahari San,” online at [http://www.kalaharipeoples.org/documents/Fpk-ckg.htm] and
IRIN, “Botswana: Culture (2)...”
15 Batswana (“Tswana people”) is the collective name for the various Setswana (“Tswana
language”)-speaking groups of Botswana. San culture and languages are distinct from those of
the Batswana.
16 IRIN, “Botswana: Court case...” and Ralph Hazleton, “Diamonds: Forever or For Good? The
Economic Impact of Diamonds in Southern Africa,” Occasional Paper #3, The Diamonds and
Human Security Project, March 2002.

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Possible Implications of the Case
The court case between the San people of the CKGR and the government of
Botswana may prove important both regionally and internationally for those seeking the
rights to their ancestral land. The legal systems of several other African states where there
exist historically disputed land claims are similar to those in Botswana. Should the San
win any portion of their case, their victory may create precedents of legal strategy that
may be applicable to the cases of land case plaintiffs in other countries. Similarly, legal
precedents in other countries may inform legal outcomes in Botswana. In 2003, for
instance, the Richtervelders of South Africa won a landmark court battle with a
prominent diamond company.17 The Constitutional Court ruled that even though the
3,000 Nama Richtervelders had no legal land titles, they owned the rights to the minerals
and land that they inhabit through ancestry. Analysts have suggested that the South
African ruling is important in the CKGR case, as Botswana and South Africa share
similar judicial systems.18 International observers also champion the importance of the
San case for indigenes of other African countries, such as the Masai of Kenya, the pygmy
peoples of Central Africa, and the Hadza hunting people of East Africa.19
U.S. Policy. The San case has not attracted extensive attention among U.S. policy
makers, but its outcome may provide an important precedent for treatment of aboriginal
peoples by national governments around the world. The San rights case is an issue of
concern to the Congressional Human Rights Caucus. In late September 2004 the Caucus
held a Members’ Briefing on the issue. USAID and the Department of State have both
cited the importance of the CKGR San court case for other San within bordering southern
African countries.20
17 Richtervelders are a Khoisan, Nama-speaking South African group who are related to the San
of Botswana.
18 CIA World Factbook, South Africa and Botswana.
19 IRIN, “Botswana: Court case...”
20 [http://www.state.gov/r/pa/ei/bgn/1830.htm], [http://www.aaanet.org/committees/cfhr/
san.html], and [http://www.usaid.gov/stories/namibia/cs_namibia.bushman.html]

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