Sunday Standard, Khonani Ontebetse

The government has for the first time conceded that the decision to relocate Basarwa from the Central Kalahari Game Reserve (CKGR) was a policy blunder.

The government acknowledged in its latest white paper on the Presidential Commission of Inquiry into the Review of the Constitution of Botswana that mistakes were made in relocating Basarwa from their ancestral land. The government even fell short of acknowledging its elaborate plan to literally wipe out Basarwa from the Constitution when in 2005, it deliberately ‘deleted’ section 14(3) (c) which supported Basarwa’s constitutional rights.

The 2023 annual reports of SEMK Botswana have not yet been written, something has not yet been written in the journal for some time. The reason is that a Botswanan student is staying with us for a period of three months, between her high school final exams and a choice for a possible further study at a university.

RAMOTSWA: After leading her tribe to final victory at the Court of Appeal (CoA) this week, the Ba Ga-Malete leader, Kgosi Mosadi Seboko says she now fears for her life more than ever.
The CoA ruling put an end to a legal fight over Forest Hill 9-KO, the fiercely disputed land measuring 2,229 hectares (other sources mention 200,229 hectares) that left government and Bamalete at odds.

Now with Bamalete granted court victory, Kgosi Mosadi who was among the respondents for the appeal had asked her tribe to pray for her as she faces enemies from both outside and within. Speaking at the Bamalete main Kgotla in Ramotswa after the victory on Tuesday, Kgosi Mosadi said: "I am now treading carefully because there are some people with bad intentions out there." She added: “I know that I must protect myself because there are those people I should be careful when I am around them." Kgosi Mosadi also said she knows better not to accept food offers from everyone because there are chances that some would poison her.

She also revealed that it is not just witchcraft she may be facing but there are other works in play. She said she is glad that through it all, Balete managed to hold on to the spirit of prayer. She said as much as they prayed, they also do not have to disregard traditional methods of protection because the two go hand in hand. She advised her tribe to do the same and exercise care at all times.

She said they should all celebrate this victory responsibly because not everyone is happy about their court triumph. For his part, Kgosi Mosadi’s uncle Kgosi Tsimane Mokgosi emphasised that not everyone is celebrating their victory. "There are some people who are jealous of Kgosi Mosadi. But their hearts will settle,” he highlighted. Kgosi Mosadi made headlines last year when she claimed that President Mokgweetsi Masisi interfered with the Judiciary and wanted to play the hero in the Balete and government matter.

Kgosi Mosadi at the time set tongues wagging when she made the allegations before the media a few days before the first CoA appearance in the last session. She revealed then that Masisi had promised to give Bamalete their land back should they lose the case at the highest court in the land. She exposed Masisi’s 'meddling' hand in the affairs of the land saying she will never keep quiet or be part of the ‘never mind’ ilk to save her skin. “It is my word against his (President Masisi's) but I am telling the truth. I wouldn’t dare make such statements about the First Citizen knowing very well they are false. I have had sleepless nights since our meeting and I wonder how he sleeps at night?" Kgosi Mosadi declared at the time.

Kgosi Seboko warns the tribe (translation not possible) “Se se sa siamang ke se se jesetswang mo ganong. Gake rotloetse tsedi jelwang mo ganong mo gongwe di a tle di iphetole botlhole, le nna ke tshwanetse ke itlhokomele nako tsotlhe. Le a itse le lona gore hake ile meketeng ba mphuthelela diswaanyana mme go nale ba eleng gore ke tshwanetse ke itlhokomele. Le dijo ke ba ra a kere tsholang pele le je. Metsi a ke lemogile gore le one beng ba one itlhele baa tshaba ba sa batle goa nwa, nna le nna ke simolotse go nna careful ka kgang ya metsi. Rotlhe re a itemogela gore ga e sa tlhole re re go jesitse baloi, re jesiwa le ke bone batho sekgoa ba go tweng re ja nabo.” (I don’t encourage comestibles because they tend to become poison. I must be careful at all times. You all know that during social functions they always package food hampers for me. I am not always suspicious but they are those people I should be careful when they are around. Even with food I tell them to eat first, I have started becoming more careful even with water. We have all observed that it is no longer witchcraft only but there are other sophisticated ways people go about to poison others.)

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Reaction President Masisi, published by Mmegi or Sunday Standard. (The article has been removed from the newspaper that published it.)

If I had meddled with the courtcase, Bamalete would have lost the case.

December 15, 2022

Botswana’s Appeal Court has denied a Bushman family the right to bury their elder, Pitseng Gaoberekwe, on his ancestral land in the Central Kalahari Game Reserve (CKGR).

The ruling has been condemned by his family who said: “The government has denied us the right of access to our ancestral land. Who is it to deny us that right? Who are the courts here in Botswana to deny us this right? Our rights are inherent. They cannot be taken away neither by the courts, the government or anybody else. We were there before the creation of the game reserve... therefore this land cannot be left to vultures spreading around trying to scavenge on our land. Our land is precious, full of natural resources and animals, and we will not give it easily to this oppressive government.”

Survival believes this manifestly unjust and inhumane judgment appears to be politically influenced and to reflect a renewed round of persecution of and discrimination against Bushmen by the government.

Pitseng become ill in 2014. He was persuaded to leave his community in the CKGR to access medical treatment, and be near his children who live in one of the sites to which many of the CKGR Bushmen were evicted in 2002. He died there on 21 December 2021.

Local authorities and the Director of the Department of Wildlife refused to allow his family to transport the body from the morgue to the reserve, leaving the family with no option but to go to court to resolve the issue.

According to Bushman customary law, it is vital to bury the dead near their ancestors. Legal experts say the Director of Wildlife has no powers to override customary law and therefore no power to determine who is buried in the CKGR, or to refuse a permit for the purpose of a burial. It appears the Director exceeded his powers to further government policy aimed at restricting Bushmen access to the reserve.

Born in the CKGR in the 1940s, Pitseng spent virtually his whole life there until he became ill in 2014. He never forfeited his right to live on his ancestral land and refused to leave in the 1997 and 2002 evictions.

On his death bed he made clear to his family that he wished to be buried on the land of his ancestors in the CKGR, in accordance with custom.

He was a hunter, and endured assault, detention and even a year’s imprisonment in 1994 after being arrested by wildlife scouts for hunting. Despite this relentless persecution he refused to stop hunting.

Pitseng was an applicant in the landmark 2002-2006 High Court case, when judges ruled the Bushmen had been illegally and unconstitutionally evicted from their land in the CKGR.

A report published by the UN Committee on the Elimination of Racial Discrimination this month raises considerable concerns at Botswana’s treatment of the CKGR Bushmen. It stated that: “the restrictive execution of the High Court’s decision and particularly the removal of the children from the Park at the age of 18 would aim for there to be no more inhabitants after the death of the Elders”.

The Committee urged Botswana “to fully implement the High Court’s decision by allowing all ethnic groups originating from this reserve to return and settle there unconditionally. ... and “to provide them with effective access to basic social services and enable them to resume their traditional activities without hindrance".

(revised draft, 1/8/23, J Frost) (8 January 2023) Ms Frost is an independent scholar who works with IWGIA (International Work Group for Indigenous Affairs) and KPF (Kalahari Peoples Fund) and has done fieldwork among the =Khomani in South Africa.

Pitseng Gaoberekwe was born in the mid-1940s and lived for most of his life in Metsiamanong, one of the five San communities in the Central Kalahari Game Reserve (CKGR). His way of life there was recognized and documented several times by anthropologists. When the government attempted to relocate all residents outside of the Reserve, between 1997 and 2005, he refused to leave. As a result of the 2006 Roy Sesana vs Attorney General case, those who were evicted were allowed to return to the Reserve, but the decision only applied to residents who signed an official list of applicants. Gaoberekwe was a signatory, although his name was not on the part of the petition that was submitted to the court in 2006.

When he became ill in 2014, his family asked him to move to the New Xade, a settlement immediately outside the Reserve, in order to benefit from health care. In 2021 his condition worsened, and his family moved him to a hospital in Gaborone. He died there on December 21, 2021. During his illness he had asked his family to promise to bury him near his community in the CKGR.

His three children, Lesiame, Keitatotse and Dikakanyetso, moved their father’s body to Ghanzi, where they placed him in a mortuary while they asked for the Ghanzi District Council to help arrange for transport to the CKGR for burial. Initially the GDC raised no objections, except that they would not help pay for the transport, which the family said they would cover themselves. But the Department of Wildlife and National Parks (DWNP) intervened and refused to allow the body to be transported into the Reserve. When the family made clear their intention to continue trying to bury their father in his ancestral territory, they received a court order on March 9 telling them to bury the body elsewhere within seven days, which they refused to do.

Smith Moeti, a nephew of the deceased and representative of the family, explained their point of view. “In our culture, it is sacrilegious to contravene the covenant we had with the departed. It is a traditional rite,” he said. “We must at all cost follow the dead’s words because the moment they pass they become our ancestors.”

Early in April, the Director of the DWNP, Kabelo Senyatso, submitted an affidavit to the court stating that “no body is, by current law entitled to be buried inside the CKGR.” He went on to state that no one in Botswana “...has the right to bury their dead inside a game reserve or a national park or any other protected place.” However, he allowed that the courts could still permit “the surviving 189 people in the Sesana case” to be buried in the Reserve.

Lesiame Pitseng, the son of the deceased, responded to the Directors statement by saying that his father was indeed an applicant in the Sesana case and that he has equal rights with the other 189 applicants. He went on to name several individuals whose corpses were buried in national parks or reserves.

On April 25, the government brought the case before the Gaborone High Court under Judge Itumeleng Segopolo, naming Lesiame Pitseng as chief applicant. The family’s attorney, Nelson Ramataona, stated that Lesiame had not only a right, but a duty to bury his father in the CKGR, and that other families had been permitted to bury their dead inside the CKGR. He emphasized that Gaoberekwe’s home was in the Reserve and he had lived at New Xade on a temporary basis only to gain access to health facilities. He testified that the DWNP’s narrative was wrong because the deceased’s name was found among the initial applicants, and he had never withdrawn from the case. He argued that the decision of the DWNP was unjustified and divisive as other families had been permitted to bury their dead inside the CKGR.

Advocate Sidney Pilane, who had represented the government in the 2006 case, represented her again here. He said of Mr. Gaoberekwe, “He is deceased and no longer exists as a person with rights. He is now a thing. And the question arises whether anybody can assert his right when he is deceased and what right does the applicant have to assert the dead person’s right?”

He denied that the deceased was one of the 189 residents who had been on the list submitted to the court, and for that reason could not have been a beneficiary of the 2006 High Court judgement of Sesana vs the Attorney General. In any case, he added – to the surprise of many listeners -- the clause in the Constitution that protected the Basarwas’ right to live in the Game Reserve, Section 14.3.C, had been removed from the Constitution. Therefore, no one was allowed to enter the CKGR without a permit. Further, he averred that Lesiame Pitseng had presented no evidence that his father had ever lived in the Reserve. Siding with him, Judge Segopolo ruled against the family, ordering Lesiame Pitseng to bury his father’s body or spend 30 days in jail.

The High Court’s decision against the burial drew attention both in Botswana and worldwide. Afterward, Kgosietsile Ngakaagae, another attorney who had assisted in the case, used a social media post to request donations toward the family’s legal bills. Within a few months, 100,000 pula had been raised. A member of the Botswana parliament, Dithapelo Keorapetse criticized the government’s “systematic injustices against the First People of the Kalahari” Another MP, Dr. Neva Tshabang, said “I think the government must relax its stance regarding areas with ancestral linkages.”

Attorney Nelson Ramaotwana filed an appeal in November, inviting Advocate Duma Boko to join the team. After several delays the case was heard on December 12 in the Court of Appeals, under a three- judge panel headed by Judge Mercy Garekwe.

Advocate Duma Boko asserted that Gaoberekwe Pitseng’s name was one of the first 29 residents of the Reserve to sign the list of applicants. Boko argued to the court that “He never withdrew from the case and [as] such, we ought to consider him as one of the applicants, and a beneficiary to the judgement.”

However, Judge Garekwe agreed with the previous judge, that the appellant had failed to establish any right to bury the deceased in the Reserve. She said that a right could have been based on the Sesana judgement, but the applicant had failed to provide convincing evidence indicating that his father had been one of the 29 unrepresented applicants in Sesana. She added “I will take it a step further that, there is no evidence placed before Court showing that the deceased was in first instance one of the original 243 Applicants.”

Coincidentally, during the time the appeal was heard in court in Botswana, several Botswana officials were in Geneva participating in hearings held by the United Nations Committee on the Elimination of Racial Discrimination. Athalia Molokomme, Botswana’s representative to the UN, who had been Attorney General during the 2006 Roy Sesana case, was among them. After several meetings, the committee issued its final report on December 14, the day after the appeal in the burial case was denied.

Though the procedure in Geneva had no relationship to the appeal that had been decided the previous day in Botswana, the report issued by the UN Committee was strikingly relevant to the issues raised in the appeal. The committee expressed its regret that “...those groups who were not party to the Roy Sesana and others v. Attorney General case have not been allowed to return to the Reserve to settle there. Furthermore, those who are allowed to return must obtain a permit in advance and encounter difficulties in resuming and conducting their traditional activities.” The report went on to urge the State party “to fully implement the High Court’s decision in [the Sesana case], by allowing all ethnic groups originating from the Central Kalahari Game Reserve to return and settle there unconditionally. The Committee also recommends that the State party provide them with effective access to basic social services and enable them to resume their traditional activities without hindrance.”

Within a few weeks after the appeal was denied, it seemed that the family had developed an approach to the burial that would satisfy official demands. Smith Moeti sent a letter to the Attorney General stating the family would not resist the government’s burial of their father in New Xade, but would not attend nor participate in it. He wrote:

“In a nutshell, the government of Botswana has all along wanted to bury Pitseng Gaoberekwe at New Xade, and their courts granted the government her wish and the family of Gaoberekwe shall not partake in the burial of their father in New Xade or anywhere else, except the CKGR.” The family is considering taking the matter to a high court such as the African Human Rights Commission, the African Union Court or the UN.

At year’s end, Gaoberekwe Pitseng’s body remained in the mortuary in Ghanzi.