State of the World's Minorities and Indigenous Peoples 2011 - Botswana

The year 2010 saw a continuation of the tensions between G/wi and G//ana communities of the Basarwa indigenous group and Botswana's government regarding G/wi and G//ana's rights to land inside the Central Kalahari Game Reserve (CKGR). Despite having been granted the right to occupy land within the CKGR as a result of a court ruling in 2006, the government has been slow to respond to the additional needs of the community.

Since their return to the CKGR, G/wi and G//ana community members have continued to suffer due to poor provision of social services within the reserve, including health services, with an adverse effect on women's access to reproductive health care. Due to the government's refusal to reopen the only borehole within the CKGR, the community has struggled to secure access to water sources. Community members have to leave the reserve and travel 300 km in order to fetch water for their homes. In addition to the dispute regarding the borehole, Survival International reported that wildlife scouts had told family members of the community that using donkeys to transport water into the park is not permitted. This increases the difficulty of bringing water into the reserve further, as the Basarwa community do not have access to vehicles and are dependent on donkeys for transport.

James Anaya, the United Nations (UN) Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, expressed concern over the treatment of the Basarwa indigenous group by Botswana's government, in a report released in February 2010. The report stated that although the government, 'may or may not be following the order of the Court in the Sesana case in a technical sense', its behaviour was neither congruent 'with the spirit and underlying logic of the decision, nor with the relevant international human rights standards'.

At the beginning of June 2010, a court heard an appeal made by the G/wi and G//ana community regarding their access to the borehole in the CKGR. More than a month later, on 21 July 2010, the court announced that it had ruled against the appeal. Human rights activists around the globe decried the decisions made by the government and another appeal was submitted in September 2010. In January 2011, the appeal court overruled the previous judgment, finally allowing the G/wi and G//ana community access to the water borehole.

In regard to women's rights, Botswana has made progress in establishing gender equality over the past years with laws such as the 2004 Abolition of Marital Powers Act, which establishes 'equal control of marriage estates and equal custody of children, [removing] restrictive domicile rules, and [setting] the minimum marriage age at 18.' However, despite theoretical commitment to gender equality, some laws continue to discriminate against women (such as the failure to recognize rape within marriage), and social pressure prevents women from speaking out about gender-based violence, or leaving abusive partners.

In February 2010, in its Concluding Observations on Botswana, the UN Committee on the Elimination of Discrimination against Women (CEDAW committee) expressed concern over the continued violations of women's rights due to the coexistence of customary law and common law. While common law recognizes and protects the rights of women in regard to marriage and property rights, customary law is deeply patriarchal and women's rights are often forsaken for the rights of men. For instance, under customary law, women are considered to be minors. This has particular relevance to women from minority ethnic groups, because customary law as recognized in Botswana reflects the patriarchal practices of the majority ethnic group, the Tswana. Therefore, the specific cultural rights to which minority women are entitled are not expressed in either of Botswana's legal systems, leaving them unprotected from violations against their human rights. For instance, the practices of matrilineal minority groups such as the Wayeyi are not recognized. A case lodged in 2006 with the African Commission for Human and People's Rights (ACHPR) in relation to this issue is still pending.

In late 2010, it was reported that the Paramount Chief of the Bakgatla (one of the eight major Tswana tribes in Botswana), Kgosi Kgolo Kgafela II, had mobilized Bakgatla against the government and was demanding constitutional reform. They claimed that the current Constitution, with its colonial roots, did not reflect the culture and values of the people and thus should be changed accordingly. It is unclear how this situation will develop, but if the Constitution is changed, it could have serious implications for the rights of non-Tswana groups as well as the rights of women.

In September 2010, it was announced that the government passed an amendment to its Employment Act that will make the dismissal of employees due to their sexual orientation or HIV status illegal. This is significant as homosexuality is criminalized, and 24.8 per cent of 15-49-year-olds are HIV positive in Botswana. The response from civil society organizations was positive yet muted, as many felt that an amendment was not enough to end discrimination in the workplace against those who are HIV positive.