Mosetlhanyane and others v. Attorney General of Botswana, Civil Appeal No. CACLB-074-10

Appeal by Basarwa community of the decision by the High Court and relying on the decision in Sesana, challenging the Government's refusal to allow members of the Basarwa (San or Bushmen) community access to a borehole in the Central Kalahari Game Reserve (CKGR); Scope of the right of access to water; State obligations in relation to vulnerable groups; Access to water as an aspect of the right of occupancy.
Date of the Ruling: 
Jan 27 2011
Court of Appeal at Lobatse
Type of Forum: 
In 1985 De Beers mining company drilled a borehole for prospecting purposes and some of the water was supplied to settlements in CKGR. The Government later evicted and resettled the Basarwa outside of the CKGR because they felt that human settlements were incompatible with the conservation of wildlife in the preserve. In an attempt to dissuade the Basarwa from returning, the borehole was also dismantled as it was the only source of water within 40km. In 2006, in the Sesana case, the Court found that this eviction was unconstitutional and allowed the Basarwa to return to the CKGR. In this case, the Court went further and found that because the Basarwa were lawful occupiers of the CKGR, they have a right to utilize existing boreholes and drill new ones for water for domestic uses. Without this ability, the right to occupy the land would essentially be meaningless. In addition, the Court held that under section 7(1) of the Constitution of Botswana, guaranteeing the right not to be subject to inhumane or degrading treatment, the Governments actions constituted a violation of the Applicants fundamental rights. The Court referred to General Comment 15 and the UN General Assembly resolution on the right to safe and clean drinking water to affirm both that water is a human right and linked to the rights to health and life. Further the Court noted that State's have particular obligations to prevent encroachment and pollution on indigenous people's lands and to provide resources for indigenous groups to design, deliver and control their access to water.
Keywords: Mosetlhanyane and others v. Attorney General of Botswana, Civil Appeal No. CACLB-074-10, Water, Sanitation
Enforcement of the Decision and Outcomes: 
The Court ordered that the Applicants be able to re-commission and freely use the borehole for their domestic needs. The Gem Diamonds Company has since been given mining rights on the CKGR. They have said they will collaborate with the non-profit organization VOX United to implement the water project and will support the drilling of four boreholes. In August 2011, drilling began on the Malapo and Gope boreholes.
Groups involved in the case: 

First Peoples of the Kalahari

Significance of the Case: 

This case followed on an earlier decision in Sesana and Others v Attorney-General (2006) AHRLR 183 (BwHC 2006), in which the Court found the relocation of the Basarwa community off of the CKGR unconstitutional. In this case, the Court used a traditional civil and political rights framework to advance socio-economic rights, which are not formally recognized in the Constitution of Botswana. The Court importantly also pointed to important statements in international law recognizing the right to water and particular State obligations in relation to indigenous groups, helping to integrate the socio-economic rights framework into domestic jurisprudence. However, the applicants did not argue, and the Court refused to acknowledge, an affirmative obligation of the State to provide water using its own resources. More broadly, this decision reflects broader protections of indigenous peoples on land marked as game preserves. In the Inter-American Court of Human Rights, in Xákmok Kásek Indigenous Community v. Paraguay (2010), the Court noted its concern that the wildlife refuge could be a new and sophisticated method adopted by the owners of private property to "block the original peoples' claim on the territory [...] under the cover of the law and even invoking purposes as pure as the conservation of the environment."