Global Policy Forum

Bushmen forced out of the Kalahari desert by Botswana's government won a landmark legal victory today as the country's high court ruled they had been illegally removed and should be allowed to return. The panel of three judges ruled 2-1 in favour of the Bushmen, among Africa's last hunter-gatherers, whose fate has attracted widespread international attention.

Survival International, a British-based pressure group which campaigns for the rights of indigenous and tribal people and has been assisting with the case, hailed the verdict as "a victory for the Bushmen and for indigenous peoples everywhere in Africa". The legal battle - the longest in Botswana's history - has been seen as a major test case in establishing the fundamental rights of indigenous people.

Earlier today, the Bushmen's campaign seemed lost when the high court's chief justice, Maruping Dibotelo, delivered his verdict first and ruled in favour of the government. The Bushmen's supporters assumed the other two more junior judges would follow suit. However, they disgreed, granting the Bushmen - also known as the San people - the right to return to what is now the central Kalahari game reserve.

Judge Mpaphi Phumaphi, who delivered the deciding vote, said the government had been wrong to force the Bushmen into settlement camps. "In my view the simultaneous stoppage of the supply of food rations and the stoppage of hunting licenses is tantamount to condemning the remaining residents of the central Kalahari game reserve to death by starvation," he said.

The third judge, Unity Dow, ruled that the government had "failed to take account the knowledge and the culture" of the Bushmen when it expelled them. But the verdict also said the government was not obliged to provide basic services, such as water, to anyone returning to the reserve.

The Bushmen's lawyer, Gordon Bennett, welcomed the decision, saying: "It's about the right of the applicants to live inside the reserve as long as they want and that's a marvellous victory." A number of Bushmen had trekked overland to the court in Lobatse, just south of Botswana's capital, Gaborone, and some sat in the courtroom to hear the rulings. The Bushmen, whose ancestors lived in the Kalahari 20,000 years ago, say they have been forced to resettle in bleak camps to make way for diamond mining, Botswana's most lucrative export.

They launched a civil lawsuit in April 2002 to try to force the government to let them return to the Kalahari. The initial case was thrown out on a technicality, but in 2004 the high court then agreed to hear the complaint. The government insists the Bushmen have changed their lifestyle so much that they no longer belong in the Kalahari reserve, an animal sanctuary the size of Belgium, and are affecting conservation efforts. They are better off in settlements, where they have access to clinics and schools, it says, adding that diamond mining has nothing to do with the decision.

The government complains that the Bushmen's foreign supporters, including South African anti-apartheid hero, Archbishop Desmond Tutu, and British actors Julie Christie and Colin Firth, are romanticising a hunter-gatherer lifestyle which no longer exists.

However, Survival International alleges that the Bushmen have been forced out to make way for increased operations by De Beers, the world's biggest diamond mining company, which denies any such plans.

Discovered in 1967, a year after Botswana gained independence from Britain, diamonds have taken the country from one of the poorest in the world to a per capita annual income of more than £5,000. Today's ruing, while going in favour of the Bushmen, said there was no reason to support such claims.

The government has resettled about 2,000 Bushmen, mostly in 1997 and 2002, and says all but about 24 had voluntarily left the reserve. About half of southern Africa's 100,000 surviving Bushmen live in Botswana. Survival International says that more than one in 10 of the original 239 Bushmen who signed up to the legal case have since died in government resettlement camps.