(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.