A/HRC/15/37/Add.2 68. With the exception of small groups of people, almost all inhabitants of the game reserve relocated between 1997 and 2001.10 On 31 January 2002, the Government ceased provision of basic and essential services to the Basarwa and Bakgalagadi people who remained in the game reserve. Additionally, the Government removed the pipe and capped the borehole that brought water to inhabitants of the reserve. 69. In February 2002, 243 Basarwa individuals who had lived in the reserve filed an urgent application with the High Court of Botswana, seeking an order declaring the termination of basic and essential services by the Government unlawful and unconstitutional, and declaring the Government’s obligation to restore these services and their access to the lands and resources within the reserve. They further sought an order declaring unlawful and unconstitutional the Government’s refusal to issue special game licences and its refusal to allow them to enter the game reserve unless they possess such a permit. 70. In December 2006, the High Court of Botswana in the case of Roy Sesana and Others v. The Attorney General11 held that the “Applicants were deprived of [possession of the land, which they lawfully occupied] by the Government forcibly or wrongly and without their consent”.12 Two of the three justices on the panel that decided the case highlighted conflicting and confusing statements and actions by the Government, in particular regarding the provision of services, which would indicate that the residents did not freely consent to the relocation. 71. Justice Dow highlighted the Government’s failure to take into consideration the social and political structures of the Basarwa, and to some extent the Bakgalagadi, which are in fact different from the social and political structures of Tswana groups, in the design of programmes and projects at the new settlements. Additionally, both Justice Dow and Justice Phumaphi referred to the reserve inhabitants’ relative position of powerlessness, resulting from historical processes and general discrimination that has resulted in a number of Basarwa having low literacy levels and little to no political or economic clout. Finally, the justices concluded that even if residents had decided to relocate voluntarily, their consent could not be considered informed, based on evidence that the Government failed to adequately inform them about compensation or their right to return to the reserve after relocation. 72. The Government has stated that the decision of the High Court is being faithfully implemented and that all applicants in the Sesana case and some of their family members have been allowed to return without having to fulfil the requirement of obtaining entry permits. In the view of the Government, all others, including those who lived in the reserve at the time of the relocation but who were not applicants to the Court case, must obtain temporary entry permits. While allowing inhabitants of the reserve to make their own provisions for water, the Government has stated that it is not obligated to provide access to water in the reserve and that it will not permit the inhabitants to gain access to water through the use of the Government’s borehole. The Government also has affirmed that the prohibition of livestock in the reserve continues, and that the ordinary restrictions on hunting in the reserve still apply.13 Further, Government representatives explained to the Special Rapporteur that allowing even relatively small communities to live within the game 10 11 12 13 GE.10-13968 Initial report submitted by Botswana to the Human Rights Committee (CCPR/C/BWA/1), para. 286. High Court of Botswana, Misca. No. 52 of 2002, judgement of 13 December 2006. Order of Court announced in Judgment of Hon. Mr. Justice M. Dibotelo, para. 55 (4). See “Summary of Botswana Government position regarding implementation of the Decision of the High Court in Roy Sesana and Others vs. The Attorney General”, 19 February 2007 (transmitted to the Special Rapporteur, June 2009). 17