Barring Bots San lawyer sparks controversy
Gaborone – Botswana’s imposition of travel restriction on a British lawyer representing the Kalahari San people has sparked both local and international row.
Gordon Bennett was put on 'visa list' after he successfully represented the San people to stall the government to evict the Ranyane community from a game reserve at a hearing in June 2013.
Bennett has in the past successfully defended the San people ‑ first in 2006, when they won the right to return to their ancestral land, while in 2011 the court granted them right to drill their own water boreholes after the government attempted to stop them doing so.
British citizens do not require visas to enter Botswana, but six days after the Ranyane victory, Bennett was put on 'visa list'.
Bennett applied for a visa, but has allegedly faced a series of delays, which have been construed by some as tactics by the authorities in Gaborone to ensure that his application in not considered until after the case has been heard.
Government spokesperson Jeff Ramsay confirmed that the department of immigration has turned down a visa request submitted on short notice by Gordon Bennett, who is a citizen of the United Kingdom.
Ramsay said Bennett had approached the Botswana High Commission in London earlier this week to submit a visa application, demanding that it be expedited and issued within two days.
“Officials at the High Commission, however, explained to him that this would not be possible given that the stipulated visa processing time is between seven to 10 days.
“Further to the above, as a sovereign country, we are not obliged to accept Mr Bennett (or anyone else) into the country under any circumstances, much less on short notice.
“By the same token, we are not obliged to provide Mr Bennett with a place of extended employment,” said Ramsay.
He is adamant that under international law, the entry of any individual into any country is always strictly at the discretion of the country concerned.
“This is equally true for countries with visa requirements for short-term visitors.
In this context, it is also common for countries to maintain lists of individuals who are denied routine entry for various reasons,” he concluded.
The Law Society of Botswana (LSB) has voiced its concern on the same matter, saying, “That the government of Botswana has rejected the visa application of Advocate Bennett on the eve of his appearance before the High Court on July 29, 2013, on a matter that is of great importance to the Basarwa may now suggest that the imposition of visa requirements was always intended to create a barrier to him representing the Basarwa in their various court actions against government.
“The use of foreign counsel from foreign countries in our courts in complex legal matters and matters of national importance, and those which are of great importance, is provided for in our statute law and has become customary, especially in Constitutional matters.”
The law society stressed that the decision to bar Bennett without explanation strengthens suspicion of the government’s deliberate attempt to deny the Basarwa their right to legal representation contrary to Section 10(9) of the Constitution.
For his part, Bennett said, “the right to a fair trial normally includes the right to be represented by counsel of your choice. Not in Botswana, apparently – or at least not if you sue the government.”
He added that, “Most of us would struggle to understand why one party to a legal action should ever be allowed to deprive the other of the counsel he has chosen, but the government sees no problem. It does not even think it necessary to explain itself. Not a good day for the rule of law in Botswana.”
The San people returned to court for the third time on July 29, 2013, over the government's refusal to allow all the San evicted in 2002 free access to their ancestral land in the Central Kalahari Game Reserve (CKGR).
A Gaborone High Court Judge reserved judgment in the present case on Monday after hearing preliminary arguments from both parties’ legal representatives.
Most San people are currently required to apply for permits to enter the CKGR – in blatant violation of a 2006 High Court order and are facing ceaseless harassment and intimidation by the government agents.
In a landmark ruling in 2006, the High Court confirmed the San's right to enter the CKGR without a permit.
But the government now claims that only the 189 people formally listed as applicants in that case, and their children up to the age of 16, are allowed free passage into the reserve and that everyone else must apply for a one-month access permit.
However, at the start of the case in 2002, the government had acknowledged that the ruling would apply to around 700 San, including children.
The San live in constant fear of overstaying their permits, amid a spate of arrests and violence towards the tribe by paramilitary police and wildlife scouts.
United Kingdom pressure group, Survival international’s Director Stephen Corry said, “This is yet another calculated move by President Khama to thwart the San's access to justice.
“It’s ironic that Botswana is still thought to be transparent and democratic when its government has spent years trying to destroy its original peoples.
“Now, after their successes in court, San are not even allowed their lawyer. This is a vindictive and repressive step.”