'Enlightened' judgment advances battle for access to basic amenities.
In recent years courts in Southern Africa have avoided referring to progressive international laws and treaties in judgments.
As presidents stacked the judiciary in their favour, judges have been happy to oblige the executive by sticking to a narrow interpretation of human rights.
But last week’s landmark judgment by the Botswana Court of Appeal in favour of an indigenous community was a radical departure. In a scathing condemnation of the government’s conduct, Justice Michael Ramo-dibedi 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 centre of the struggle for indigenous peoples’ rights and on January 27 they won the latest round in their battle against the government.
But the judgment could have repercussions beyond Botswana by influencing court cases across the region involving marginalised communities fighting for fundamental socioeconomic rights, such as access to land and water.
Water was at the heart of it. Twice. In 1997 and 2002 the Botswana government 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, the government terminated their basic services, including access to drinking water, as a brutal means of coercion.
But the Court of Appeal delivered a devastating appraisal of this: ‘Government seems to be saying to the appellants: you can live in your settlement in the [reserve] as long as you don’t abstract water other than from plants.”
Human suffering and despair
In upholding the community’s right to recommission the borehole and sink others for domestic purposes, Ramodibedi observed ‘at once that it is a harrowing story of human suffering and despair caused by a shortage of water in the harsh climactic [sic] conditions of the Kalahari desert, where the applicants and their ‘Basarwa’ community live”.
The community’s lawyers sought redress based partly on Section 7(1) of Botswana’s constitution, which stipulates that ‘no person shall be subjected to torture or to inhuman or degrading punishment or other treatment”.
The court cited a 2003 United Nations Committee on Economic, Social and Cultural Rights report, which states the ‘human right to water is indispensable for leading a life in human dignity — [and is] a prerequisite for the realisation of other human rights”, and the UN General Assembly’s recognition last year that access to safe and clean drinking water is a fundamental human right, and held that the government had violated the constitutional provision that prohibits torture or inhuman or degrading treatment.
This is a radical departure in most of Southern Africa, where judges rarely rely on international treaties and norms and where the enforcement of socioeconomic rights is often regarded as a thorny issue best left to the executive.
Botwana’s Court of Appeal showed 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 socioeconomic rights in fulfilling human dignity.
For communities who face the challenge of accessing water, food and shelter, this is a small but significant step towards the realisation of their right to be treated with dignity.