Blog of law articles

(BY HUGO)

An interesting case regarding the capacity of human rights to provide access to water is developing in Botswana.

Ekklesia is informing that the Kalahari Bushmen are taking the Government of Botswana to court over what they describe as its refusal to allow them access to a water borehole on their own land.

A summary statement of fact by Survival International describes the context of the case:

- Boreholes in the Kalahari were the Bushmen's source of water;

- The Botswana Government evicted the Bushmen from the Kalahari in 2002 and sealed-off the wells;

- In 2006, the Botswana High Court ruled that the Bushmen's eviction by the Government was unlawful and unconstitutional, despite the fact that the government had removed the clause protecting Bushmen rights in the constitution during the proceedings. The Bushmen returned to the Kalahari but the Court determnied that the Government had no obligation to provide them services;

- Despite long negociations, the Government currently refuses to reopen the sealed borehole;

- The Bushmen argue that their right to live in the Kalahari surley includes the right to obtain water by their own means;

- The Government argues that the Bushmen's have to face the consequences of their choices for having decided to live in a place where ther is no water, and that the Bushmen endanger the life of wild animals.

This case is loaded with interesting issues regarding the human rights providing basic access to water, including:

- The determination of the specific human right(s) that will provide redress and ultimatly access to water for the Bushmen should the Court accept their claim. This is related to debates on the proliferation and prioritisation of human rights justifying access to volumes of water for basic needs. In the context of the Bushmen's claim, this issue will probably be influenced by the 2006 judgement;

- Protection of the environment as per the Government's argument for denying access to the wells vs the fulfilment of basic human human needs for water. This is related to the extent of the State's duty to respect, protect and fulfil human rights, and is particularly intersting given the fact that the Bushmen are not asking the Government to take positive steps to provide them with water while the Government argues that water cannot be obtained in a desert.

The case is due to be heard at Botswana’s High Court in Lobatse on 9 June 2010. A web search has not yielded the official court documents (for the present claim as well as for the 2006 decision). Many thanks to anyone who can provide access to them.

One last element that appears relevant in the context of the above: the UN Expert on Human Rights, Catarina de Albuquerque, pushes for the implementation of the human right to water and the human right to sanitation in Slovenia as the chosen instrument to redress discrimination against the Roma minority. Moreover, the Commissioner links human rights to water and sanitation to the implementation of the EU Wastewater Directive.