Sesana v. Attorney General

In March 2002, the Botswana Government terminated certain basic services to the Central Kalahari Game Reserve (CKGR), including access to:

• Drinking water;
• Maintenance of borehole water;
• Rations to registered destitute;
• Rations to registered orphans;
• Transport for the applicants’ children to and from school; and
• Healthcare to the applicants through mobile clinics and ambulance services.

The Applicants, who were part of an indigenous group resident in the CKGR, claimed that the termination of basic and essential services was unlawful and unconstitutional on the grounds that they had a legitimate expectation to be consulted before the services were terminated. They also claimed that they had been forcibly relocated from their land because the termination of services had left them no choice but to move, and that they had been unlawfully denied game licences and entry to the CKGR area, further reducing their ability to live off the land.

The State argued that it was no longer feasible to provide basic services to the applicants on the land they occupied on a long term basis and that an extensive consultation process had been undertaken with the applicants before it came to the decision to terminate the services in question.

Each of the three judges in the case issued a separate judgment.

Judge Dibotelo held that the Applicants had a legitimate expectation that the State would not terminate basic services such as health care, water, sanitation without consultation. However, his Honour held that the government had indeed consulted the applicants before taking the decision to terminate the provision of basic and essential services to the applicants.  The decision was therefore neither unlawful nor unconstitutional.  The State was not obliged to restore the provision of the services to the applicants as demanded by the applicants.

Judge Dibotelo also found that the Applicants had not been forcibly removed from their land, finding that the land had been continuously owned by the State, and that prior to the termination of the services, the State had encouraged the Applicants to voluntarily leave the CKGR and compensated those Applicants who did. The Applicants had further not adduced any evidence to show that they had left the land because of the termination of services, while the State had adduced evidence that a number of persons who had left the CKGR region had later returned.

Finally, Judge Dibotelo found that the Applicants were not entitled to enter the CKGR region as of right, as the legislation establishing the CKGR had always made entry contingent upon the discretion of the relevant authorities. Further, the Applicants had been compensated for the loss of their access to the CKGR.

Judge Dow dissented from the majority judgment. Her Honour found that both the State and the relevant legislation had long recognized the dual use of the CKGR region as not only a game reserve, but as the traditional lands of the Applicants. Her Honour criticized the State in failing to adequately inform the Applicants and to listen to the Applicants’ concerns on the relocation, finding that the State should have had a clear policy on the provision of services. Judge Dow further held the withdrawal of basic essential services resulted in the forced relocation of the people concerned, because the powerlessness of the Applicants meant that no genuine choice was exercised in deciding to leave. Judge Dow also found that the withdrawal of services and the barring of the Applicants from accessing the CKGR was a breach of the right to life, and that its consequences had implications for other rights, including the right to movement, right to liberty, and the right to equality.

Finally, Judge Phumaphi held that the Applicants had no legitimate expectation to the basic services being continued. Judge Phumaphi, however, held that the relocation of the Applicants had been forcible, and that the longstanding practice of recognizing the Applicants on the land meant that they stood outside the legislative regime for game permits and could not be barred from the land under that legislation.

In light of the differences in judicial opinion, the Court issued the following order:

1. 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. (Dow J dissenting).

2. The Government is not obliged to restore the provision of such services to the Applicants in the CKGR. (Dow J dissenting)

3. Prior to 31 Jan 2002, the Applicants were in possession of the land, which they lawfully occupied in their settlements in the CKGR. (unanimous decision)

4. The Applicants were deprived of such possession by the Government forcibly or wrongly and without their consent. (Dibotelo J dissenting)

5. The Government refusal to issue special game licenses to the Appellants is unlawful (unanimous decision)

6. The Government refusal to issue special game licenses to the Applicants is unconstitutional (Dibotelo dissenting)

7. The Government refusal to allow the Applicants to enter the CKGR unless they are issued with permits is unlawful and unconstitutional. (Dibotelo dissenting)

8. Each party shall pay their own costs. (Dow dissenting)

“I have already found in deciding issue number one that there is ample evidence from both the Applicants and Respondent which proves that the Applicants were consulted and even told that the provision of services to them in their settlements was temporary before the decision to terminate the provision of those services was made by the Government, and that as a result, the termination of the provision of those services by the Government was lawful. Arising from those findings it cannot, in my view, be successfully contended that the Applicants were forcibly or wrongly deprived of possession of the land they occupied in their settlements in the CKGR by the Government. In my judgment, the contention of the Applicants that the Government forcibly or wrongly deprived them of possession of the land they lawfully occupied in their settlements in the CKGR has no merit and must fail.” Dibotelo J, para. 47.

“I find that the Respondent operated under a confusing and unclear policy and on this point alone I would hold that the Applicants were deprived of possession of the land they lawfully occupied wrongfully and unlawfully and without their consent, but I go on to consider other factors that I say are informative on whether the Applicants gave their free and informed consent to the relocation.” Dow J, para. 18.

“It seems to me that, if this Court were to decide that the services should be restored, in the face of admitted evidence to the effect that provision of services in the reserve is unsustainable on account of costs, the import of the Court’s decision would be to direct the Respondent to re-prioritise the allocation of national resources. In my view, the Court should be loathe to enter the arena of allocation of national resources unless, it can be shown that the Respondent has, in the course of its business transgressed against the Supreme Law of the land or some other law.” Phumaphi J, para. 31.