ARCHIVE 1996

 

Southern Africa: Program Description

SYNOPSIS

Since the beginning of human memory, the San people have moved in small bands throughout southern Africa using the land in a sustainable manner. They are the original inhabitants of the territory and their identity, expressed in oral tradition and cultural practices, is directly linked to the fragile Kalahari ecosystem of which they consider themselves stewards. However, they have been enormously impacted, in a negative and destructive way, by historical events and contemporary circumstances. Their traditional way of life is rapidly being eradicated through relocation from traditional territories, lack of control over their own social and economic destiny, lack of control over their interaction with dominant culture and the perpetuation of the romantic myth that they are a historical figment and not real people of today. The destruction of culture is irreversible. With it go the lessons and knowledge of countless generations as well as valuable wisdom for the future. In the case of the San, with the elimination of their culture will go the intuitive ability to live in synchronicity with the total environment as well as more than 30, 000 years of conservation experience.

For these reasons, the overall (and continuing) goal of our work in southern Africa has been to assist the San (also known as the Khwe, Basarwa and Bushmen) groups in southern Africa to secure land tenure in their traditional territories. We have attempted to be both realistic as well as creative in working with our local partners to develop a comprehensive strategy to secure San land tenure.

 

Southern Africa Legal Assistance Project

Summary

FPW's legal project in southern Africa is our longest standing international commitment and represents, to some extent, the genesis of FPW. We have been involved in the struggle to secure land tenure for the San since 1995 when Rebecca was first approached by John Hardbattle, then coordinator of the First Peoples of the Kalahari. The original request was for assistance in developing alternative income-generating and sustainable economic development projects for the Naro San community in western Botswana. However, while they were in the process of developing an overall economic development strategy, the government of Botswana began to pursue a policy of removing the residents of the Central Kalahari Game Reserve to settlements located outside the Game Reserve. This precipitated an official request for land rights assistance from the First Peoples of the Kalahari (FPK) to FNDI in February, 1996.

Since that time, we have continued to work with local and regional organizations in Southern Africa in order to secure San control of their traditional territories. We have moved from a relatively limited relationship with the First Peoples of the Kalahari to a strong relationship with many San organizations in the region. In particular, we have an excellent relationship with the Working Group of Indigenous Minorities in Southern Africa (WIMSA) with whom we are jointly managing the land rights training program in Botswana and Namibia.

During the last two years, some of our major activities in southern Africa have been: strengthening the relationship between FPW and local NGO's; researching and writing the first legal history of San land tenure in Botswana; developing a community legal education program for San NGO's and communities in Botswana; networking with numerous indigenous and non-indigenous organizations in the region; developing a land rights booklet for use by San NGO's and communities in Botswana (called "Steps Toward your Land Rights"); working with the Working Group of Indigenous Minorities in Southern Africa ( WIMSA), the Legal Assistance Center & the Center for Applied Social Sciences to develop a land rights curriculum for use by the Traditional Authorities in Namibia; providing on-going strategic advice and technical support to the attorneys hired by San communities to take their land rights cases to court/negotiation; on-going international advocacy regarding the land rights of the San; and fundraising to secure financial support for these activities.

Current Project in the region

Our current project is still inspired by the original legal strategy which outlined a multi-pronged strategy to secure San control of their traditional territories. In addition to providing legal technical assistance to our partners, we have also made a commitment to WIMSA to assist them in ensuring that the San people receive culturally appropriate land rights education.

A. Technical Assistance (On-going)

The value of providing culturally appropriate technical assistance cannot be underestimated. In many cases, the San communities as well as their legal representatives have been disadvantaged due to the difficulty in obtaining current information about international legal cases such as those being decided by Australian, Canadian and American courts. FNDI-FPW is in the enviable position of being able to provide not only the most current information on these legal developments but we can also link our southern African partners to the numerous land claims experts with whom we have a very positive relationship. In the last two years, some of the on-going issues that we have been requested to research and give an opinion include: impact and benefit agreements between indigenous people and mining companies; co-management agreements for indigenous people living in or near protected areas; international precedents for restitution; land restitution models from North America; recent Canadian land claim cases such as R. v. Delgamuukw and options for Indigenous people under the Biological Diversity Convention. We also receive requests for information on sustainable development models such as those developed by First Nations grantees, references for international conferences, support for human rights campaigns and assistance with general program development.

B. Lawyers Reference Group on Indigenous Land Claims

As part of our larger legal technical assistance program in southern Africa, we have also been asked to facilitate a Lawyers Reference Group on Indigenous Land Claims. This request arises out of discussions with our partner organizations and their legal counsel during which we recognized that our legal assistance work had been somewhat exclusionary due to a shortage of available time and resources. During several visits over the last year, we discussed the possibility of including other lawyers in the information sharing as well as the utility of bringing them together to share strategy and progress in their respective claims. The end result has been a formal request to First Nations to assist in the establishment and development of a Lawyers Reference Group on Indigenous Land Claims.

Although membership is open, keen interest has already been expressed by Henk Smith of the Legal Resources Center (Richtersveld claim), Advocate Peter Hathorn (Richtersveld claim), Roger Chennells of Chennells Albertyn (Southern Kalahari claim) and the Surplus Peoples Project. An invitation has also been extended to Glyn Williams of Chennells Albertyn (Central Kalahari Game Reserve claim), Andrew Corbett of the Legal Assistance Center in Windhoek (West Caprivi claim) and Alice Mogwe of Ditshwanelo - the Botswana Center for Human Rights (Central Kalahari Game Reserve claim). Although First Nations has agreed to facilitate the establishment of the Lawyers Reference Group, we have approached the South African San Institute (SASI) regarding the possibility of incorporating the Reference Group into their general technical assistance program in the future.

We expect that a corollary effect of such a convening will be to encourage regular dialogue between the lawyers, something which is seriously lacking at the moment. It is anticipated that increased dialogue will prevent contrary precedents from being set in any one jurisdiction as well as allowing the lawyers to use each other's successes to leverage a positive decision in their own case. In this way, the Lawyers Reference Group will further protect the interests of the San people.

C. Legal Education program (joint project with WIMSA)

Our most important commitment in the region is to provide culturally appropriate legal education to San communities. Under the guidance and management of WIMSA and the Center for Applied Social Sciences at the University of Namibia, we have researched and developed a series of four legal education modules that are focused on providing clear direction to the San leadership regarding accessing, maintaining and utilizing land in their traditional territories (communal areas).

The topics to be covered in the sessions include:

  • basic legal education including the national Constitution;

  • basic democratic principles;

  • situation of indigenous peoples in other parts of the world;

  • land claim processes and strategies;

  • responsibilities of San communities to research and gatherevidence of occupation and use of traditional territories;

  • conservation and environmental issues; and

  • issue of relocation/ resettlement.

In addition, we are continuing to work with the San organizations in Botswana in order to develop appropriate follow up to our legal education program there.

Conclusion

It is an exciting time in Southern Africa. In Namibia, the land reform process and the potential role of Traditional Authorities in the allocation of land means that the San have the potential to influence their own course of history and regain their rightful place as the first people of the Kalahari. We are looking forward to continuing our work with WIMSA and our other regional partners.

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