Roy Sesana and Others v Attorney General Case No. Misca 52/2002, reported as (2006) 2 BLR 633 (HC)

Facts

The Applicants, led by Roy Sesana representing the First People of the Kalahari (FPK), were Basarwa/San residents of the Central Kalahari Game Reserve (CKGR). In January 2002, the Government of Botswana terminated basic services including water, food rations and healthcare to residents living within the CKGR. The government simultaneously restricted access to the Reserve and stopped issuing special game licenses to residents.

The service termination was followed by relocations of residents to settlements outside the Reserve at Kaudwane and New Xade. The Applicants challenged these actions, arguing they were forcibly removed from their ancestral lands and deprived of their constitutional rights.

Issues

The primary constitutional and legal questions were:

• Whether the termination of basic and essential services was unlawful and unconstitutional?
• Whether the government was obliged to restore these services?
• Whether the Applicants were unlawfully deprived of possession of land they lawfully occupied?
• Whether the refusal to issue special game licenses and requiring permits for Reserve entry was unlawful?

The case challenged fundamental rights including the right to liberty, dignity, and protection from discrimination.

Court Ruling

The court ruled in favour of the government. Justice Dibotelo found that government officials had been talking with CKGR residents about moving since 1986 – that’s 15 years of talks. Residents knew services might stop one day. In August 2001, Assistant Minister Kokorwe gave them six months notice that services would end in January 2002. The court said this was fair warning as the termination was neither unlawful nor unconstitutional.

The court also ruled in favour of the Applicants, stating that they were lawfully in possession of the land they occupied, even though the CKGR was State land. However, the court rejected claims of forcible removal. The judges found no proof that cutting services was meant to make residents leave. Some people stayed in the Reserve even after services stopped.

This case created important rules about how the government must talk with communities before big decisions and recognized that indigenous people have land rights in Botswana.

Want to stay updated on legal cases? Then Subscribe below:

Have a specific case in mind? Email your requests to info@legaldialog.com