“That burial and burial ceremonies have immense socio-cultural significance cannot be denied and for centuries, societies have buried their leaders, social luminaries, cultural figures and loved ones at sites other than recognised graveyards,” declared Justice Walia. He gave an example of the Westminster Abbey in London - a church where the remains of English monarchs and famous British subjects have been buried for centuries and continue to be buried today. “At home, the remains of the famous El Negro are interred at Tsholofelo Park in Gaborone,” he told the court.
It was suggested by the Land Board that the court’s findings would be of interest to the Land Board and to Land Boards generally, in the implementation of their policies and programmes.
“To this, I can only respond that Land Boards wishing to utilise the provisions of the Act to implement or enforce their plans, programmes or land use zoning decisions, must themselves comply fully with the relevant provisions of the Act and to draft their lease documentation with sufficient care, to avoid ambiguity and misinterpretation”. Justice Walia said the Land Board, in according the association’s cultural centre the status of a tourism attraction, shows a narrow-minded approach.
“It is perhaps this approach that prevented it from looking beyond the pigeon hole, in which it had placed the cultural centre in its development plan - a component of its tourism policy, with little regard for the aspirations and expectations of the association”. The court further ruled that the costs of the application should be borne by the Tawana Land Board.
In her affidavit, the coordinator of the association, Professor Lydia Nyathi-Ramahobo, had indicated that in view of the fact that the lease for the plot clearly indicates that it was to be used as a cultural centre, the burial of a chief is part of the history of the people, who need to bury him in accordance with their culture. “It was then logical to bury the chief at the cultural centre. An annual celebration for the installation of Shikati Kamanakao has taken place at the cultural centre for three years,” she said. She argued that Kamanakao was a leader of his tribe and had a mission to revive the Wayeyi culture. “It is therefore proper that his vision be continued by burying him at the centre where his people could honour him. He devoted his life, energy and resources to the development and promotion of the Wayeyi culture, for which they applied for a plot to preserve it, being the cultural centre,” she added.
She also provided examples of burials at a place other than designated cemeteries - like the burial of Letsholathebe Moremi at the kgotla in Maun.
Speaking to Nyathi-Ramahobo yesterday from Dar es Salaam, she was upbeat that the case had come to an end. “For the association, this is a big achievement. The victory means that in burying our chief at the cultural centre, we did not violate any law as alleged by the Land Board”. She added that Bayeyi are a tribe that has every right to do things in accordance with the dictates of their culture.
The Land Board last year filed a civil suit in which they argued that the burial of Kamanakao at Gumare did not conform to the land use plan. In court, papers filed by the Land Board secretary, Andrew Pitse, indicated that a cultural centre in terms of the land use plan, falls under tourism and is envisioned to encompass a traditional or cultural village, where the association displays its traditional way of life. He further argued that this is a place where the Bayei are to erect traditional huts, display and sell traditional crafts, prepare and sell traditional foods and stage performances of traditional dances, plays and story-telling for the tourist market. The Land Board argued that Gumare village has areas that are designated as cemeteries where the body of the late Kamanakao could have been buried. “Consequently, allowing burials in an area not zoned for a cemetery would be going against the essence of the plan,” said Pitse.
The attorney who represented the association in the matter, Gabriel Kanjabanga said the victory shows that what his clients have been arguing about - that they are being oppressed as a tribe - holds water. He indicated that some of the laws are oppressive and need to be amended accordingly.
