Matsipane Mosetlhanyane, et al. v. Attorney General

Appellants, a married couple who are members of an indigenous community known as the “Basarwa,” sought reversal of a High Court decision that had denied members of the Basarwa communities a constitutional right to utilize at their own expense a borehole located within the Central Kalahari Game Reserve (CKGR) for purposes of extracting and using water for domestic purposes. The Government of Botswana had established the CKGR in 1961 with the intention of both conserving wildlife in the area and providing a place of residence to indigenous groups, including the Basarwa. In 1986, the De Beers Company dug the borehole at Mothomelo, an area within the CKGR, for purposes of excavating minerals. By arrangement with the Government, the borehole also provided water for residents of the region with the assistance of fuel and a pump, which the Ghanzi District Council provided until 2002.

During that same period, however, the Government began to view communities living within the CKGR as a threat to the wildlife in the territory, and it sought to induce the Basarwa to leave the CKGR. As part of relocation efforts, the Government dismantled and removed the pump engine and water tank. Consequently, the Basarwa claimed that its members suffered a severe lack of access to water. According to the appellants’ undisputed testimony, they had to search for “roots and other edible matter from which [they could] extract even a few drops of water.” Lack of water also caused members of the Basarwa to feel weak, made them vulnerable to illnesses including bouts of constipation, headaches, dizziness, and contributed to sleep disorders. The appellants also claimed they did not have enough water to cook or clean themselves, a contention which official reports confirmed.

Relying on a related decision that had found Government denials of game licenses within the CKGR to the Basarwa communities unconstitutional, the appellants therefore sought reversal of the High Court’s dismissal of their application for declaratory relief, which would grant them use of the idle borehole at their own expense. In response, the Attorney General argued that section 6 of the Water Act, Cap 34:01 (the Water Act) did not give the Basarwa communities an absolute right to extract water from the borehole. He also argued that the Government originally intended the area primarily to serve as a refuge for wildlife, and that the appellants’ hardships were of their own doing insofar as they remained free to live where they chose, both inside and outside the CKGR.

The Court held that applicants had a right at their own expense to continue use of the borehole in the CKGR, as well as to dig further boreholes to abstract and use water for domestic purposes, retaining any machinery, equipment, advice or assistance necessary to that end.

Although not pleaded, the treatment of the Basarwa, which caused them to suffer from lack of access to water, violated section 7(1) of the Constitution of Botswana, which protects every person from “torture or... inhuman or degrading punishment or other treatment.” According to the Court, whether a person has suffered such treatment involves a value judgment. Accordingly, reference to the International Covenant on Economic, Social and Cultural Rights provides an international consensus on the importance of access to water. The Government of Botswana had a particular duty to protect indigenous populations from unlawful pollution, as well as to provide access to water sources as a “prerequisite for the realisation of other rights.” The right to water is therefore “absolute and unqualified.” Any arguments related to the right of the Basarwa to live within the CKGR should have been disregarded, as the Basarwa occupied the territory before any zoning policies arose. Furthermore, the related case of Sesana & Ors. V. The Attorney General [2006] (2) BLR 633 (HC), had already upheld the Basarwa’s right to continue occupying settlements with the CKRG. The respondent and the High Court also misread section 9 of the Water Act as qualifying and limiting the right to dig boreholes without a water right under section 6(1). Properly read, the provisions of section 6(1) dominate and override section 9.

Accordingly, the judgment below was reversed, and the respondent was responsible for costs.

"[15] In my view, it cannot be emphasized strongly enough… that in Botswana water is at a premium. Law occupiers of land such as the appellants must be able to get underground water for domestic purposes, otherwise their occupation would be rendered meaningless. Indeed, I accept that this is the rationale behind s 6 of the Act. Accordingly, I have no hesitation in concluding that the appellants, being the lawful occupiers, do not require a water right for the use of Methomela borehole, or indeed any other current or future borehole on land in the CKGR, for domestic purposes." Page 14-17.

"[The right to be free from torture or to inhuman or degrading punishment or other treatment] is absolute and unqualified. Unlike the other rights contained in s3 of the Constitution it is not subject to any limitations “designed to ensure that the enjoyment of the said rights and freedoms of others does not prejudice the rights and freedoms of others or the public interest.” I should add that I approach the matter on the basis of the fundamental principle that whether a person has been subjected to inhuman or degrading treatment involves a value judgment, the Court is entitled to have regard to international consensus on the importance of access to water." Page 20-21.

"[22] It is significant the that the government is unable to point to any qualifications the original applicants had in the Sesana case which distinguish them from the appellants insofar as use of water for domestic purposes is concerned. As was crisply pointed out to respondent’s counsel during argument, the Government seems to be saying to the appellants: - “you can live in your settlement in the CKGR as long as you don’t abstract water other than from plants.” Surely that cannot be right. Doing the best I can in the exercise of a value judgment in theses circumstances I am driven to conclude, therefore, that the factors set out in paragraph [8] above amount to degrading treatment of the appellants." Page 23-24.