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157 /////////////~~~~~~~~~~~~~ 7 Local Justice and Legal Rights among the San and Bakgalagadi of the Central Kalahari, Botswana ROBERT K. HITCHCOCK AND WAYNE A. BABCHUK The Republic of Botswana in southern Africa has long been regarded as an exceptional African nation-state. Not only has it been democratic for over forty years, with half a dozen open, corruption-free elections, but it has also maintained an active civil society, an independent press, political stability , economic growth, and, until recently, an excellent human rights record (Leith 2005). Unlike some of its neighbors, Botswana did not experience violence and conflict in the transformation from colonial to postcolonial status. While South Africa had a Truth and Reconciliation Commission and Zimbabwe had investigations of human rights abuses in the post-independence period, Botswana has had no large-scale external or internal investigations of human rights violations. There have, however, been charges of human rights violations made against Botswana government officials, police, and the military, especially with regard to the treatment of San (Bushmen, Basarwa) and Bakgalagadi in the past decade (e.g., Mogwe 1992; USDOS 1993, 2003; Good 1993, 1999, 2003, 2009; Cassidy et al. 2001). The issue that has called into question Botswana’s commitment to human rights revolves around the resettlement of over a thousand San and Bakgalagadi residents from the Central Kalahari Game Reserve (CKGR), Botswana’s largest protected area. In 1985, the government of Botswana called for a fact-finding mission “to investigate the Central Kalahari Game Reserve problems, with a view to providing information that would facilitate decision making on environmental protection and wildlife conservation on the one hand and the socioeconomic development of the remote area dwellers of the CKGR on the other” (Government of Botswana 1985, vi). In 1986, the Ministry of Commerce and Industry (in which was housed the Department of Wildlife and National Parks, one of the stakeholders in managing protected areas in Botswana) issued a circular that called for the resettlement 158 ROBERT K. HI TCHCOCK A ND WAY NE A. BA BCHUK of people outside of the reserve to promote “development opportunities” (Ministry of Commerce and Industry 1986, 2). This decision, which was not implemented until 1997, set in motion a whole series of efforts by San and Bakgalagadi, and both local and international support groups, to get the Botswana government to change its mind and allow the residents to remain in the Central Kalahari (Corry 2003; Saugestad 2005; Suzman 2002–2003). Global conceptions of indigenous peoples and minority rights have been drawn upon in some of the debates surrounding the struggles of the San and Bakgalagadi for their land, resources, and cultural identities (Hitchcock 2002; Kuper 2003; Saugestad 2001). At the same time, the San and Bakgalagadi have relied on systems of local justice and have called for recognition of their rights as citizens of the Republic of Botswana. These processes have played out at the same time as San, Bakgalagadi, and other minorities in Botswana have used legal means and negotiating tactics to get access to land and resources. By and large, San and Bakgalagadi in Botswana had not, until recently, resorted to direct action, demonstrations, and strikes to bring attention to the need for land and resource rights. On December 13, 2006, the San and Bakgalagadi of the Central Kalahari Game Reserve won an important legal victory in the High Court of Botswana after a long and expensive legal case and an extensive negotiation effort. The decisions of the three High Court judges guaranteed that at least some of the people who had been removed from their traditional territories in the Central Kalahari would be allowed the right of return, and they would be able to hunt and gather for their subsistence as long as they had appropriate licenses from the government. Subsequently, the attorney general of the Government of Botswana, Athalia Molokomme, ruled that the people returning to the reserve would not be allowed access to services, including schools, health posts, and water facilities (Molokomme 2006). The question is, Will the San and Bakgalagadi be able to negotiate different terms regarding the occupation of the Central Kalahari with the government of Botswana? If so, it will be necessary for the government to recognize the legal rights of San and Bakgalagadi to represent their own interests. If social justice is to be achieved, consultation will have to take place, and mutually agreed-upon decisions will have to be made. Social Justice and Land Rights in Botswana...

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