The African Commission wishes to recall that, after being forcibly removed from the Central Kalahari Game Reserve in 20002, the Bushmen won an historic victory on 13 December 2006, when Botswana's High Court ruled that their eviction by the government was ‘unlawful and unconstitutional’. The Court also ruled that they have the right to live inside the reserve, on their ancestral land inside the Central Kalahari Game Reserve. This ruling which is consistent with the provisions of the African Charter, in particular articles 2,4,19 and 24 has been welcomed by the international Human Rights community.
The ruling has been however seriously crippled by the denial to Kalahari Bushmen, of the right to water contained in the judgment no. MAHLB-000393-09 delivered Wednesday July 21st by the High Court in Lobatse, Botswana. The High Court ruled that the Bushmen people were not entitled to use a well already established on their traditional land in the Kalahari Game Reserve or excavate a new one.
As the principal regional mechanism for the promotion and protection of human rights in Africa, the African Commission operates under the African Charter on Human and Peoples’ Rights, which the Republic of Botswana ratified on 17 July 1986.
The right and access to water are essential to the full enjoyment of the right to life and all the rights contained in the African Charter. A denial of such right is a denial of the basic right and the denial of the right to life as enshrined in the article 4 of the African Charter.
The African Commission therefore urges the Government of Botswana to embrace the spirit of the 13 December 2006 ruling of the High Court which concluded that the evictions of the Bushmen were illegal and unconstitutional, by allowing Bushmen to access their own water using the pre-existing borehole at Mothomelo, within the reserve. Refusal to allow the Bushmen to use their existing borehole at Mothomelo can only be interpreted as a clear sign that the Government of Botswana is determined to continue what is perceived as a policy of keeping the Bushmen from returning home.