The following article originally appeared in The Mail and Guardian
In recent years, courts in southern Africa have obstinately avoided referencing progressive international laws and treaties in their judgments. This has largely been a function of the growing partisanship of benches. As presidents across the region have stacked the judiciary in their favor, judges have been only too happy to oblige the executive by putting on blinkers and sticking rigidly to a narrow interpretation of human rights. “Let the rest of the world expand the scope of human rights,” they seem to have been saying. “Here we can stop the march of progress.”
But last week’s landmark judgment by the Botswana Court of Appeal in favor of an indigenous community provided a radical departure from this trend. In a scathing condemnation of the government´s conduct, Justice Ramodibedi JA offered activists—and everyone concerned about human rights—a ray of hope.
For more than two decades, Botswana’s Central Kalahari Game Reserve has been at the center of the struggle for indigenous peoples’ rights in southern Africa. On January 27, indigenous groups won the latest round in their battle against the government—thanks to the Court of Appeal’s decisive ruling. But the judgment could also have repercussions far beyond Botswana—by influencing court cases across the region involving marginalized communities fighting for their fundamental socio-economic rights, such as access to land and water.
And water was at the heart of this latest legal battle. Twice—in 1997 and 2002—the government of Botswana unlawfully relocated inhabitants of the reserve, which is part of the traditional lands of the San and Bakgalagadi people (sometimes referred to as the "Basarwa"). For those who refused to relocate to areas adjacent to the park, the government terminated their basic services, including access to drinking water—as a brutal means of coercion.
When some individuals from the Mothomelo community opted to remain in the reserve rather than relocate, the government dismantled the pump and water tank at the borehole that they relied on for their survival—and then prevented other members of the community living outside the reserve from providing any assistance. No one was allowed to bring water tanks or any other equipment into the reserve and so in desperation in 2002, the community took the government to court.
In 2006, Botswana’s High Court—in the famous Sesana case—declared that the community was in lawful possession of the land, and that they were “deprived of such possession by the government forcibly... and without their consent.” However, the government argued that despite this decision it was not obliged to provide communities inside the reserve with water and other basic services or to restore the services that it had cut off. Nor would the communities be allowed to re-commission the borehole themselves, or contract anyone else to do so.
In last week’s decision, the Court of Appeal delivered a succinct—and devastating—appraisal of the government’s attitude: “Government seems to be saying to the appellants: you can live in your settlement in the [Central Kalahari Game Reserve] as long as you don’t abstract water other than from plants.”
In upholding the community’s right to re-commission the borehole at Mothomelo and to sink other boreholes for domestic purposes, Justice Ramodibedi JA crafted a judgment that is a model of lucid thinking and writing—and one that demonstrates explicit empathy for those whose rights have been violated. In one poignant—and for the government, particularly damning—section, he “observed at once that it is a harrowing story of human suffering and despair caused by a shortage of water in the harsh climactic conditions of the Kalahari desert, where the applicants and their ‘Basarwa’ community live.”
However, while the government has been smarting and the community celebrating, many people have missed the most radical—and potentially far-reaching—element of the judgment. The community’s lawyers had sought redress based partly on section 7(1) of Botswana’s Constitution, which reads: “7(1) no person shall be subjected to torture or to inhuman or degrading punishment or other treatment”
Surveying the miseries inflicted on the community by the government’s decision to cut off all access to water, the court concluded in unequivocal terms that the denial of the right to water constitutes degrading treatment.
Referring to a 2003 UN Committee on Economic, Social and Cultural Rights’ report that states the “...human right to water is indispensable for leading a life in human dignity...[and is] a prerequisite for the realization of other human rights...” as well as the 2010 recognition by the UN General Assembly of the right to safe and clean drinking water as a fundamental human right – the court held that the government had indeed violated Section 7(1) of the Constitution, which prohibits torture or inhuman or degrading treatment.
This represents a radical departure from judicial norms prevailing in most of southern Africa, where it is uncommon for judges to rely on international treaties and norms, and where the enforcement of socio-economic rights is often regarded as a thorny issue best left to the discretion of the Executive.
The Court of Appeal in Botswana has now demonstrated that it is willing to take into consideration non-binding—but profoundly important—statements emanating from the emerging international consensus on the fundamental importance of socio-economic rights to the fulfillment of human dignity.
For communities across southern Africa who face the daily challenge of accessing water, food and shelter, this judgment represents a small but significant step towards the realization of their right to be treated with the dignity that inheres in all members of the human family.
We can only hope that other courts in southern Africa will be so bold as to follow in the footsteps of this remarkable judgment.