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Publication Title

Washington University Global Studies Law Review

Abstract

The Central Kalahari Game Reserve, one of the largest conserved areas in Africa, encompasses tens of thousands of square kilometers of arid lands in Botswana that for millenia have been inhabited by San groups indigenous to southern Africa. Despite the ancient and close relationship between the San and the Kalahari region, the government of Botswana has provoked international outcry by progressively expelling San communities from the Reserve, placing them in dilapidated settlement camps, and issuing licenses for diamond prospecting to a multinational mining concern backed by the World Bank Group’s International Finance Corporation. San groups, human rights NGOs, and others have mobilized in response to the crisis and have brought the government to the negotiating table and the Botswana High Court. The outcome of this confrontation remains to be seen, but a resolution is unlikely to be lasting or effective unless the government, civil society and the international community come to grips with the deeper, structural aspects of San subordination in Botswana.

Botswana’s experience underscores how the pursuit of national development and democratization, even if successful along other dimensions, is likely to fail indigenous groups when not accompanied by recognition of indigenous rights and acknowledgement of the effects of legally-supported inequality. The San have largely been denied the fruits of Botswana’s rapid economic growth and social development, suffering from chronic unemployment and poverty, holding little land and few assets, and frequently depending on government beneficence for survival. At the same time, dynamics such as the conversion of land for grazing and extractive uses have created grave threats to the San’s traditional activities. These contemporary problems, however, cannot be fully understood without tracing their roots in the customary, and subsequently formal, legal and political organization of pre-colonial Tswana chiefdoms and then the Bechuanaland Protectorate.

Under Tswana rule, the San were subjugated as serfs and excluded from the political community. Although the British-controlled Bechuanaland Protectorate formally abolished serfdom, in other respects it exacerbated the inequities between San and Tswana groups by establishing a two-tier land and governance framework that gave the dominant Tswana tribes substantial autonomy to enforce their own customary law while denying the San similar recognition. The Protectorate provided protection for San land rights only through a London-conceived conservation framework that provided insecure tenure. The post-independence nation building enterprise of the Republic of Botswana has not rectified these problems, in part because of the shortcomings of land reform, the enactment of increasingly burdensome hunting regulations, and a focus on assimilating the San into the Tswana-dominated mainstream, rather than on giving them control over the projects and policies that affect them. Finally, the article discusses applicable international human rights norms, including those in the International Covenant on Civil and Political Rights and the Convention on the Elimination of Racial Discrimination, and sets forth an argument for the viability of an aboriginal title claim to San lands in Botswana.

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