In January 2002, the Government of Botswana terminated water, food and health services to the Bushmen residing in the Central Kalahari Game Reserve in Botswana. The service cuts were followed by relocations to adjacent areas. Access to the reserve was restricted for those who relocated, resulting in some of the Kalahari Bushmen no longer being able to enter the land they had occupied or to pursue their hunter-gatherer lifestyle. A number of the affected Bushmen bought a case against the Government in the High Court.
The High Court had to consider a number of questions. The first was whether the termination of the provision of basic and essential services to the residents of the Reserve was unlawful or unconstitutional. The Bushmen claimed that unlawfulness and wrongfulness of this action arose from the fact that, amongst other things, the Bushmen had a legitimate expectation that the services would not be terminated without their first being consulted on the matter.
The second, related issue to be considered by the Court was whether the Government was obliged to restore the provision of such services to the Bushmen. The Court found by a 2:1 majority that the termination in 2002 by the Government of the provision of basic and essential services to the Applicants in the CKGR was neither unlawful nor unconstitutional. The Court held that even if the Bushmen had such a legitimate expectation (which the majority judges differed on), there ad been adequate consultation. As a result, it was also held that the Government was not obliged to restore the provision of such services to the Applicants in the CKGR.
The next paired issues were whether, subsequent to 31 January 2002, the Bushmen were: i) in possession of the land which they lawfully occupied in their settlements in the Central Kalahari Game Reserve, and (ii) deprived of such possession by the Government forcibly or wrongly and without their consent. All members of the Court gave an affirmative answer to the first question, while a majority of the Court held that the Applicants were deprived of such possession by the Government. According to Justice Dow, this was because the Government operated under a confusing an unclear policy and there had been inadequate consultation with the Bushmen to ensure their true consent was obtained. Justice Phumaphi agreed that the residents’ had not properly consented.
The final questions the Court had to answer were whether the Government’s refusal to issue special game licenses (SGL) to the Bushmen (which was necessary to ensure they could pursue their traditional lifestyle) and/or the Government’s refusal to allow them to enter into the Reserve unless they were issued with such a permit, were unlawful and unconstitutional. While the full Court held that the refusal to issue SGL was unlawful, only two of the judges found it to be unconstitutional. Justice Phumaphi stated that the simultaneous stoppage of the supply of food rations and the issuing of SGLs was tantamount to condemning the remaining residents of the CKGR to death by starvation, resulting in a violation of the right to life set out in Section 4(1) of the Botswanan Constitution. The same two judges found that Government’s refusal to allow the Applicants to enter the CKGR unless they are issued with permits was unlawful and unconstitutional. They held that, as the Applicants were lawfully in the CKGR, it followed that the legislative provision that forbade entry into the reserve did not apply to permanent residents of the CKGR. It also followed that refusal to allow the Applicants entry into the CKGR without permit was both unlawful and unconstitutional because it violated their right of freedom of movement guaranteed by Section 14(1) of the Constitution.