The Kalahari Bushmen were to present their case on access to their ancestral lands on Monday (29.07.13), but without legal counsel Gordon Bennett who was refused an entry visa for Botswana.
DW: How did you get into this area of the law ?
Gordon Bennett: Years ago when I was a young man, I wrote my postgraduate dissertation on tribal rites and it was published by the Royal Anthropological Institute which is an ancient organisation in the UK and it sat collecting dust on some library shelf until people started picking up on it and I was asked to help out with particular tribal problems and I become more and more involved in individual land rights' disputes of which the dispute in Botswana is probably the most prominent.
And what is the case all about?
Initially the case was about the unlawful eviction of the Bushmen from the central Kalahari game reserve. It's a huge area and people are dispersed all over the place and when the lawyers started preparing the case they couldn't find all the people who had been evicted. They could only find about 200 of them. They got those people to sign up and they brought a claim for an order from the court that they had been unlawfully evicted and the court agreed that they had been. And we said, well, that leaves another 400 people who were also evicted, but they didn't happened to be in the right place at the right time and didn't sign the court documents. The government's position is that unless you signed up on those documents you have no right to go back into the reserve. We say that's nonsense. The legal rights of the Bushmen can't depend on whether they signed up on a paper or not. So we have brought new proceedings that everybody who was evicted from the reserves in 2002 has the right to go home.
Well, it sounds pretty complicated and you have been denied a visa to enter Botswana to represent the Bushmen this time. So who will represent them?
There is a very good human rights lawyer in Botswana called Duma Boko, he has been my attorney, he instructs me in all of these cases and he will take the case on. He will do the best he can for the Bushmen at the hearing.
Is it the same thing - he being there or you?
It would be better, frankly, if I was there because I have more experience and more knowledge of the case. I was the lead counsel in the first CKGR [Central Kalahari Game Reserve] case which went on for four years so I know pretty much everything about it. I know I think more about it than anybody else alive and so it would have been better that I could do it. The other factor I suppose is that I have known the Bushmen now for almost ten years, I have made many trips into the reserve. I think that the Bushmen trust me, I certainly trust and respect them. And obviosuly it would be better from that point of view if the man who is presenting their case is somebody they know and know quite well. Now, some of them know Boko Duma but they don't know him as well as they know me because Boko Duma has not been into the reserve.
Why did they deny you a visa?
Well that is a very good question. You'd have to ask them. I haven't been given any reason. I wasn't even told that I was on the visa list. They haven't actually refused me a visa, they just have not responded to my application to be given one. All I can say is I was put on the visa list, which means I have to have a visa, about four or five days after my latest court appearance on behalf of the Bushmen which was extremely successful, so successful in fact that the government was ordered to pay the Bushmen's cost and so it might be that the government decided they'd had enough of me and this time they'd clear me off the scene. But I don't know. It's one of the greatest misfortunes of the case that the Bushmen are deprived of the counsel they would like to use and they have been given no reason and they've not been told why that is.
And how hard is it to find a lawyer in Botswana willing to take on such cases?
I think quiet hard. Duma Boko is well known for his support of human rights cases and he is prepared to step into the breach but finding lawyers in Botswana prepared to take on the government is not easy. Many of them look to the government for work and they don't want to be seen to be challenging the government
And how worried are you that the Bushmen won't be given a fair deal?
Well I am quite worried. I think it's going to be a long hard struggle and it is not over yet. I am particularly worried that there will really only be a sensible solution when the government can sit down with the Bushmen and talk them and come to some kind of sensible agreement. For reasons I have never understood, they are very reluctant to do that. They would not talk to the Bushmen. They would talk at them, but they wouldn't talk to them.
This looks like a blatant attempt to influence the hearing. What could be done to prevent this?
There is nothing that can be done in the short term. I simply cannot get into the country. Without a visa I'll be turned away and there is nothing I can do to prevent that. It is possible I suppose if the case is lost at this stage, we could appeal and invite the court of appeal to decide that the hearing was unfair because the Bushmen were denied the lawyer of their choice but we must take it in stages and see what happens this week before we decide on our next cause of action.
Interviewer: Asumpta Lattus
Gordon Bennett is a human rights lawyer.