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Ogiek Elder Murdered
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Ogiek Elder Murdered
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UN Declaration on the Rights of Indigenous Peoples
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| 16 Jan 2007 |
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Bushmen in Jubilation after the Landmark Case |
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The Constitutional court seating in Lobatse, Botswana, on December 13th 2006 delivered the judgment in favor of the Bushmen. The Bushmen who are commonly referred as the Gana and the Gwi broke into joy as the government as the aggrieved party was issued with six weeks to appeal. Approximately a thousand people had attended the court judgment that took eight hours to be delivered |
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Bushmen in Jubilation after the Landmark Case
The Constitutional court seating in Lobatse, Botswana, on December 13th 2006 delivered the judgment in favor of the Bushmen. The Bushmen who are commonly referred as the Gana and the Gwi broke into joy as the government as the aggrieved party was issued with six weeks to appeal. Approximately a thousand people had attended the court judgment that took eight hours to be delivered. Journalists across the world were well armed with their tools as they arrived and camped outside the court a day before. Policy makers, Friends of the Bushmen and Ogiek representative, UN staffs, International NGOs and powerful government intelligent also attended the crowded court.
Mpoiko Kobei and Bushmen leaders Solly, Jumanda and Roy during the visit in New Xade on November 23rd 2006. The leaders were part of the applicants in the suit.
The Bushmen’s leader Mr. Roy Sysena and his house at the background in New Xade before the court allowed him and his community to go back to the Central Kalahari Game Reserve(CKGR)
The judges, Unity Dow, Phumaphe and M. Dibotelo termed the forcefully evictions of the Bushmen from the Central Kalahari Game Reserve as unlawful and
unconstitutional. In her judgment, justice Unity Dow described the Bushmen as community with a unique rich culture, language and tradition. “Its amaze me to realize that government that embraces such cultural value and a signatory of the International Covenant on Civil and Political Rights (ICCPR) has jeopardized its pledge to the convention. Even though the Republic of Botswana is not a signatory to the International Labour Organisation (Con.169) on indigenous issues, it’s sad to note that what we loose in culture is not restorable. Exposing such families to unfriendly ecosystem in the name of policies is like committing genocide. In fact, it’s the policies that follow the people but not people following the policies, by the way people came first. This is not a family to
live in New York flats or Block 8 in Gaborone, but a family with a strong bond that ties them together and to their culture” she said.
In addition Judge M. Dibotelo accused the plaintiffs (Bushmen applicants) for discussing the court proceeding through press conference. He had worn them that the law will take its course if they will alter such terms again within their lifetime. “It’s prohibited to discuss a matter pending in court until the judgment is determined, if it wasn’t for your counsel several apologies, this honorary court may have taken a strict decision” he said.
The Bushmen had instituted the suit three years ago against the respondent over what was alleged to be forcefully evictions, harassment, separation of families, intimidation, threats and imposed false charges. But the respondent declined, claiming that act was willingly but not forcefully. The respondent went further to provide some documents of compensation paid to some Basarwa people. During the cross examinations of the witness, one PW8 when asked what he though the compensation was for; “I thought I was given money because I agreed to be forcefully evicted” he said.
In his judgment, judge Phumaphe termed the eviction as had lack free prior informed consent hence being unlawfully and unconstitutional. He further termed the decision by the respondent for the demand for payment from the Bushmen in entering Kalahari from New Xade and Goudwane (new settlement) to look for food as null and void. He directed disagreed with the defense counsel that the eviction wasn’t intended to pave way for diamonds mining. He disagreed again with defense counsel witness (a vetinary doctor) that the eviction was intended to save the Bushmen from the outbreak of diseases from the wild animals.
The government of Botswana does recognize through ratification on the International Convention on the Elimination on all forms of Racial Discrimination. These are domesticated within the Botswana constitution, but even if they were not, ratification alone makes the instruments legally binding. Section 15 (4) (d) and 15 (9) of the Botswana constitution permit discrimination along tribal lines which is contrary to this instrument. Section 14 (c) which protected the rights of the Basarwa to have CKGR as their territory to preserve their culture was recently removed from the constitution. As a result, Botswana recognizes cultural rights in a discriminatory manner, by recognizing the Tswana as the only tribe with languages and cultures to be preserved, with the chiefs to be consulted on matters affecting their lives and with group rights to land as a major economic tool to control power and all other resources. In recognizing Botswana’s obligation, CERD (2002 and 2006) had recommended that all forms of racial discrimination should be removed from the constitution and related laws such as the Tribal Territories Act and the Chieftainship Act.
It’s therefore believed that the government forcibly evicted the Gana and the Gwi because, like all no-Tswana speaking groups, government didn’t recognize them as a people with social cultural rights, but part of vegetation to be acted upon.
Mpoiko Kobei (right), Roy Sysena (center-Bushmen) and Kiplangat Cheruyot During the press conference in Gaborone in show of solidarity to the Bushmen two weeks before the land mark case in Lobatse
During the previous visit by two members of the Ogiek (Mpoiko Kobei and the author) to the Bushmen, it emerged that human rights violations rate was high. In press conference held in Gaborone Hotel, two weeks before the judgment, the Ogiek demanded for self identification to the Bushmen. They urged the government to allow the Bushmen to go back to their ancestral land in the Central Kalahari Game Reserve. They challenged President Festus Mogaye to provide justice to the Bushmen unless they will call upon the international community to stop buying their diamonds. More so, they urged the government to determine the case independently unless they will appeal at the African Court of Human Rights in Banjul and beyond to the International Court at Hague. As they Ogiek were living the country, they were arrested and interrogated for almost an hour before released.
By: P. Kiplangat Cheruyot (Program Officer – Cultural, Human and Land Rights attached to Ogiek Peoples Development Program based in Nakuru
africanogiek@gmail.com or opdp2001@yahoo.com / www.forestguardian.net
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