Her name is Unity Dow, Judge Unity Dow. But she may remind some of Portia — Shylock’s nemesis — for the performance she put on last week for the Bushmen of the Kalahari.
Last Wednesday, Botswana’s Bushmen won a historic victory at the end of a four-year legal battle to hold on to their ancestral lands and to hunt game in one of Africa’s biggest nature reserves.
To quote Dow: “It has turned out to be the most expensive and longest-running trial this country has ever dealt with. It has also attracted a lot of interest as well as a fair amount of bandwagon jumpers, both nationally and internationally, than perhaps any other case has ever done.”
Dow (47) is a phenomenon. She is a successful author, with three published thrillers to her name, and she was the first woman appointed a judge in Botswana. Even before she arrived on the bench she was locally famous, for successfully suing the government to have maternal rights recognised in the country’s nationality laws.
So it was expected by the Batswana (people of Botswana) following last week’s day of judgement on national TV and radio broadcasts that there would be fireworks from the judge. And that is what they got, as she dispatched some of the personalities in the case. Counsel for the applicants, one Mr Boko, “has not been particularly helpful in this trial, decided he was more effective in criticising the court and other lawyers in the media than in representing his clients in court”, she observed of one lawyer for the Bushmen.
The Bushmen’s leader, Roy Sesana — who distinguished himself for the cameras by wearing antelope’s horns — also felt the lash of her tongue. He “had a lot to say outside the court, but to this court he said absolutely nothing. Outside court, through the media and without the limitations of an oath to tell the truth, he had plenty to say some of which, sadly was pretty ridiculous.”
Outlining the case, Dow said Sesana and his fellow applicants were of “the San, or Basarwa people” indigenous to the central Kalahari, a vast, unique wilderness in an area in excess of 52Â 000 square kilometres. The last census, in 2001, showed the population was 689.
The reserve was intended as a place where the Bushmen could maintain their way of life as hunter-gatherers. “At the time of the creation of the reserve, though, apartheid South Africa with its racists and segregationist policy, was thriving next door [and] it was considered politically unacceptable to be seen to be creating at best a human reservation and at worst a human zoo,” she said.
Growing crops and hunting, the Bushmen lived on limited resources. Most were classified as destitute by the government, entitling them to food rations, water supplies and the transport of their children to schools outside the reserve. In 1986 the government decided the Bushmen should be relocated outside the reserve, giving assurances to foreign diplomats and the media, among others, that it would be by “persuasion, not force”. But in 2002 it cut water supplies and brought in police with 29 large trucks to move the Bushmen.
There was nothing wrong about the use of police in the exercise, observed Dow. But she said: “What is curious is the persistent denial by the government’s witnesses that there was a police presence.”
She cited a case where a family had asked that they be allowed to stay to care for a sick relative. Authorities described it as a “ploy” to stay. “The question becomes why someone who is not under pressure to relocate would need a ploy to remain,” Dow pointed out.
The Bushmen belong to an ethnic group “that has been historically looked down upon”, said the judge — the names for them “common terms of insult in the same way as nigger and kaffir”. From the point of view of the government lawyers, “Sesana and his international friends, notably the NGO backing their case, Survival International, are really the cause of the problems”.
The government had had to give endless assurances to diplomats with regard to the reserve and its residents. A British lawyer was flown out from England to represent the Bushmen. “Will it ever stop? You can almost hear the cry, this continued and continuous interference from the West. What is a government to do?” Dow asked rhetorically.
“The case being judged, though, is not whether slavery was brutish, which it was, or whether colonialism was a system fuelled by a racist and arrogant ideology, which it was, or whether apartheid was diabolical, which it was. It is not even about how high the Botswana government should jump when a Western diplomat challenges or questions its decision.”
Survival International and others who had helped the Bushman’s cause had merely “given courage and support to a people who historically were too weak, economically and politically, to question decisions affecting them”, she said.
Dow said the case was “ultimately about a people demanding dignity and respect. It is a people saying in essence: ‘Our way of life may be different, but it is worthy of respect. We may be changing and getting closer to your way of life, but give us a chance to decide what we want to carry with us into the future.'”
Three judges delivered last week’s decision in Sesana and Others v the Government of Botswana, broadly finding in favour of the Bushmen. Dow was one of them. Portia had spoken. — Guardian Unlimited Â