The Judicial Enforcement of Socio- Economic Rights in Botswana and the Case of Basarwa

THE JUDICIAL ENFORCEMENT OF SOCIO- ECONOMIC RIGHTS IN BOTSWANA AND THE CASE OF BASARWA IN THE CKGR

BONOLO RAMADI DINOKOPILA

LL.B (UB), LL.M (Human Rights & Democratisation in Africa) (Pret.); Doctoral Candidate, Centre for Human Rights, University of Pretoria, South Africa & Lecturer, Law Department, University of Botswana.

Abstract

Minority ethnic groups such as the indigenous Basarwa continue to be marginalised by the current policies adopted by the Government. Although the government officially considers all of the country’s ethnic groups to be equally “indigenous”,[1] the earliest inhabitants of the country, the Basarwa, have from time immemorial proven that theirs was a special situation which needed special considerations and policies specifically tailored to meet their needs. Of all the vulnerable groups in Botswana, the Basarwa have been at most, economically and politically marginalised.[2] Their isolation, limited access to education, ignorance of civil rights and lack of political representation hinder their progress.[3] The protection of their rights- in particular their socio-economic rights- remain elusive as the government’s policies and decisions are not cognisant of their special situation. The severity of this detrimental situation is underscored by two decisions of the Botswana High Court in Sesana & Others v The Attorney General[4] and Matsipane Mosetlhanyane & Others v The Attorney General of Botswana[5]

The paper will thus discuss the institutional, legal and Constitutional framework of the promotion, protection and fulfilment of socio-economic rights in Botswana. Within that context, it highlights the possible means of judicial enforcement of socio-economic rights in Botswana. The paper also tackles the controversial issue of whether the judicial enforcement of socio-economic rights is easy to achieve when such rights are not constitutionally entrenched and further whether the absence of Directive Principles of State Policy within the Botswana Constitution are a hindrance to the judicial enforcement of socio-economic rights in Botswana.

[1] See generally, Ditshwanelo, The Botswana Centre for Human Rights, Shadow Report to the United Nations Committee on the Elimination of Racial Discrimination, 68th Session, Geneva, 3-6 March 2006 at p. 10.

[2] See generally, Ditshwanelo, The Botswana Centre for Human Rights, Shadow Report to the United Nations Committee on the Elimination of Racial Discrimination, 68th Session, Geneva, 3-6 March 2006 at p. 10.

[3] As above.

[4] Roy Sesana & Others v The Attorney General, MISCA No. 52 of 2002 reported as Sesana and Others v The Attorney General 2002 1 BLR 452 (HC).

[5] Matsipane Mosetlhanyane & Others v The Attorney General of Botswana, High Court of Decision MAHLB – 000393-09 (Unreported).