Recognition of the Indigeneity of the Basarwa in Botswana: Panacea against their Marginalisation and Realisation of Land Rights?

Published date01 November 2020
Date01 November 2020

The Basarwa, or San/Bushmen as they are at times called, have been historically dispossessed of their land and persecuted by dominant Tswana speaking ethnic groups, governments and capitalists, both local and foreign.1 The name ‘Bushmen’ is often used to refer to the Basarwa although the terminology has attached to it a pejorative connotation.2 This tribal group is historically a hunter-gatherer community who were politically and militarily weaker, thus susceptible to displacements meted out on them by cattle herders who drilled boreholes in what was historically their ancestral lands.3

In their effort to address the subjugation and loss of land for use by the Basarwa, the British colonial government, which was exercising indirect rule over the Bechuanaland Protectorate, considered setting aside land for the exclusive use of this minority group.4 This proposal was spearheaded by a colonial government official, George Silberbauer, who came up with a plan to set up a reserve for the use of the Basarwa to practise their traditional lifestyle.5 The proposal was a result of the survey the objectives of which were to come up with recommendations for dealing with issues regarding the welfare of the Basarwa, including what to do about the problem of many landless people on the Ghanzi freehold farms in western Bechuanaland.6 In that regard, the Central Kalahari Game Reserve (CKGR) was initially conceptualised by Silberbauer as a kind of ‘people's reserve’ for the exclusive use by the San to follow their hunting and gathering way of life.7 However, that was never implemented due to the fear of opposition from the settler white farmers to the west of Ghanzi and possibly the Ngwato to the east due to the potential loss of the cheap labour supplied by the San.8

Despite being designated a game reserve, it has always been clear that the CKGR was assigned a dual function of conserving the natural habitat within its boundaries and for the use of the hunting and gathering populations living within it by the then colonial government.9 It is because of such a known intention that it is argued that the CKGR was primarily gazetted by the colonial government to address a then growing international concern over the welfare of the so-called ‘Bushmen’.10 That sensitive issue found its way into modern-day Botswana having failed to be laid to rest during the colonial era at the creation of the CKGR. That might be attributable to the government of Botswana's persistence that the country does not have indigenous tribes. The argument is that all citizens of Botswana are indigenous to the country.11 The government's argument has been that classifying some tribes as indigenous, and thus formulating a differential developmental agenda to suit their special circumstances, would be similar, if not the same, to the ‘apartheid’ policies which were pursued by the government in neighbouring South Africa.

This article uses a case study of the Basarwa of the CKGR to investigate the extent to which the government of Botswana balances or fails to balance the competing interests of conservation and the utilisation of wildlife. It gives a historical overview of the struggle of Basarwa to access land and utilise natural resources. It also discusses the place and role of international law in constitutional interpretation in Botswana. Further, this article discusses the jurisprudence of the courts of Botswana relating to the right to reside in the CKGR and utilise natural resources therein by the Basarwa. It also discusses the attempts made by the government of Botswana to allow local communities to benefit from natural resources and highlight its weaknesses relative to the Basarwa. Before making concluding remarks, this article further explores the contents of indigenous people's rights to utilise natural resources within an international framework as a solution to the struggles of the Basarwa. The main objective of this article is to assess whether the classification of the Basarwa as indigenous people and conferment of native title to them as done in the Sesana case is capable of improving their rights to land and to utilise natural resources.


From the foregoing, it is essential to point out that this article does not claim to give a total historical account of the Basarwa and their land struggles. The San or Basarwa, and to a certain extent some of the Bantu-speaking tribal groupings lumped together as the Bakgalagadi which can be loosely translated to mean ‘those who belong to the Kgalagadi/Kalahari desert’, have been engaged in a struggle for land and resource-rights in the CKGR which can be traced to the pre-colonial era, including the most recent attempt to relocate them from the CKGR beginning around the mid-1980s.12 The reserve occupies some 52,000 km2 of the central part of Botswana and was at the time untouched by an expanding cattle industry.13 It is rich in wildlife but extremely vulnerable to drought due to its loose sandy soil and lack of permanent surface water. The reference to the mid-1980s coincides with the period of re-designation of the CKGR in 1986 from its original use of wildlife conservation and a land reserve for traditional livelihood for the Basarwa community to conservation status only.14

The change in land use within the CKGR was a result of some studies which suggested that the wildlife population was reducing.15 The government also stated that it was difficult to provide developments and deliver services to remote populations inside the game and land reserve.16 This line of argument is influenced by the thinking of Botswana's political elites who view development as not being limited to the improvement of economic reality but also entailing the modernisation and the improvement of people's integration into social and political structures.17 Such an approach was heavily criticised by the court in the Sesana case by observing that:

One of colonialism's greatest failings was to assume that development was, in the case of Britain, Anglicising, the colonised. All the current talk about African renaissance is really twisting and turning at the yokes of that ideology … The case is thus, ultimately about a people demanding dignity and respect. It is a people saying in essence, ‘our way of life may be different but it worthy of respect’…18

The government's paternalistic view of what development means for the Basarwa resulted in a long and controversial process of removing and resettling the Basarwa from their lands in the CKGR and dissolving their hunting and gathering rights. These actions were challenged in the courts of law in the mid-2000s. It is worth noting that prior to the relocation of the historic inhabitants, the government's representatives met with people in the reserve during the 1990s and advised them on the advantages of moving to more central settlements.19 The government emphasised to the residents of the CKGR and other stakeholders that the relocations were to be voluntary.20 As a matter of fact, the actual relocations were everything but voluntary. The state used force to move families out of the CKGR, burnt personal belongings of those who were not interesting in relocating and sealed the boreholes they used for drinking water in order to starve them out of the reserve. Increasingly, the issue of relocation of the Basarwa began to be viewed within the context of indigenous rights and gained both international and local opposition

The conflict between the state and the residents of the CKGR is attributable to the prevailing acrimonious relationship between conservation and the livelihoods of communities living adjacent to and within wildlife sanctuaries.21 This controversy over land rights between the Basarwa and the government led to the longest and most expensive court case in the history of the country. The case of Roy Sesana and Others v. Attorney General,22 hereinafter the Sesana case, is the culmination of the dispute over the use of natural resources in the CKGR. The judgment of the High Court in the Sesana case gives a perspective on how issues of access to and utilisation of natural resources may be addressed in Botswana with specific reference to the historically downtrodden Basarwa. Scholars have argued that this case and the preceding dispute finally began to draw international attention to Botswanan issues, in particular the country's human rights record besides its economic growth rate and the regularity of its elections.23

Despite emerging successfully from one of the most contentious litigations in the history of Botswana, such a win has led to very few changes to the position of the Basarwa in society and their rights to access and utilise natural resources.24 This article investigates how the recognition of Basarwa as indigenous peoples may and should be used to improve their rights to the land and natural resources therein.


Although Botswana is an independent state with its own legal, judicial and political system, it is part of the international community in a highly globalised world. It is on that basis that a question arises on the role international law plays in the domestic legal system in Botswana. This section briefly attempts to answer that question. Public international law is the branch of law that deals with the conduct of sovereign nation states.25 Within this field of the law, a distinction is made between hard and soft law. Hard international law refers to legal obligations that are specific. In instances where there is no specificity, such international obligations of nation states may be made precise through adjudication or the issuance of detailed regulations.26 Some of the main sources of hard international law are: (a) treaties/international conventions; (b) international custom, as evidence of a...

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