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.

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

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.