Basarwa sue Khama
Oarabile Mosikare | Tuesday August 19, 2014 17:07
Nare Gaoberekwe, Mosetlhanyane Matsipane, Amogelang Segootsane, Gaorapelwe Kgwathiswa and Mogoba Tshiamiso are residents of the CKGR, who have instituted the notice to sue.
“The claimants’ cause of action is their right as citizens of Botswana not to be subject to statutory instrument that is inconsistent with the provision of the enactment under which it was made and is therefore void pursuant to Section 5 (2) of the Statutory Instrument Act; and their right to protection of Chapter II of the Constitution,” reads the notice received by the Attorney General’s office on August 8, 2014. The applicants say the statutory instrument is in the Wildlife Conservation and National Parks (Prohibition of Hunting, Capturing or Removal of Animals) order of 2014.
The claimants are forbidden to hunt to feed themselves and their families, even though the animals are their only source of protein.
These animals include lion, elephant, bushbuck, antelope, eland, zebra, warthog, kudu, springbok and ostrich amongst others.
They claim that the minister did not make the order to fulfil any of the four purposes listed in Section 45, but advanced a different purpose, which is to preserve wildlife.
They believe that Khama “acted in violation of the principle that a minister may use his statutory power to make orders only for one or more of the purposes for which the power was conferred...” The order thereby confers upon the minister the wholly arbitrary power to determine whether or when he will decriminalise the activities of citizens of Botswana and is contrary to the rule of law.
Attorneys Gosego Lekgowe and Dr Bonolo Dinokopila represent the applicants.
The lawyers say that paragraph 2 (2) of the order imposes a prohibition for “a period of 12 months from the date of publication of this Order”. However, paragraph 2 (3) provides that this period “shall be reviewed on a yearly basis until the prohibition is lifted”.
The prohibition will therefore continue automatically after January 10, 2015 unless and until it is ‘lifted’. No further order will be required in the meantime.
Section 45 of the act does not authorise the minister to make an order in these terms, or any order, which is automatically renewed on the expiry of the 12 months period unless the minister decides to revoke it, the lawyers say.
The applicants seek a declarator that the Wildlife Conservation and National Parks Order, 2014 is ultra vires, unlawful and unconstitutional. They seek that the director of the Department of Wildlife and National Parks be instructed to make all arrangements necessary to enable the claimants to apply for special game licences or hunting permits and to determine those applications on their merits.
The claimants were amongst applicants in the Roy Sesana and others versus the Attorney General case, who were resisting forceful relocations from the CKGR. They were also amongst the applicants in the Mosetlhenyane Matsipane versus the Attorney General case, who challenged a government decision to deny them use of water from Mothomelo borehole.
Meanwhile, the Attorney General’s office has not responded to the notice of intention to sue.