US embassy cable - 05GABORONE1228

UNCLAS  GABORONE 001228 
 
SIPDIS 
 
 
SENSITIVE 
 
AF/S FOR MUNCY 
 
E.O. 12958: N/A 
TAGS: PHUM, PGOV, BC, SAN/CKGR Relocation 
SUBJECT: SLOW PROGRESS IN CKGR COURT CASE, FPK OUT OF FUNDS 
AGAIN? 
 
REFERENCE: GABORONE 913 
 
1. (SBU) SUMMARY:  Hearings in the First People of the 
Kalahari's (FPK) legal challenge of the GOB's policy of 
relocating San and other minorities out of the Central 
Kalahari Game Reserve (CKGR) resumed on August 8.  With the 
case dragging, FPK appears to be on the brink of another 
financial crisis.  Unless Survival International (SI) 
provides more funds, FPK may have difficulty consulting with 
the 200-plus applicants in the case on a way forward because 
the GOB recently barred it from entering the Reserve. 
Perhaps perceiving an impending breakdown in the litigation 
process, the human rights group Ditshwanelo released a 
statement on August 12 endorsing a return to dialogue 
between the San and the Government.  Although talks are the 
best hope for a mutually acceptable solution, the legal 
battle has poisoned the atmosphere, making a potential 
dialogue all the more difficult.  END SUMMARY. 
 
2. (SBU)  State attorney Sidney Pilane continues to wear 
down the applicants, Roy Sesana et al., through prolonged 
court proceedings and efforts to make presenting a case on 
behalf of the applicants difficult.  Although American 
ecologist Dr. Kathleen Alexander was expected to take the 
stand first in this round of hearings, Pilane called instead 
the former Ghanzi District Commissioner.  One of Pilane's 
standard tactics has been to deviate consistently from the 
declared order in which he will call witnesses, apparently 
in an attempt to disrupt the applicants' ability to cross- 
examine them effectively.  When Dr. Alexander finally took 
the stand, Pilane spent over half a day in court reviewing 
her curriculum vitae, despite the fact that the applicants 
were prepared to accept her qualifications as an ecologist 
and wildlife management expert. 
 
HUMAN PRESENCE INIMICAL TO PRESERVATION OF CKGR 
 
3. (U)  In her testimony, Dr. Alexander asserted that human 
occupation of the CKGR is fundamentally incompatible with 
conservation of the natural resources within it.  She 
referred to statements within reports written by Arthur 
Albertson, an expert witness on ecology for the applicants, 
that the San no longer led a nomadic hunter-gatherer 
existence.  Dr. Alexander cited Albertson's findings that 
they were semi-sedentary, kept livestock, and often resorted 
to unsustainable hunting practices, such as killing pregnant 
animals.  In order to preserve the Kalahari's remaining 
wildlife, she argued, an ecological "core" (the CKGR) must 
be preserved.  Wildlife management areas can then be 
established around it in which residents could use the 
wildlife that moved out of the Reserve. 
 
ANOTHER COURT FIELD TRIP TO THE CKGR 
 
4. (U)  Dr. Alexander's testimony followed the court's 
August 10 field trip to Gope, a location within the Reserve 
where currently uneconomical kimberlite pipes are known to 
exist, at Pilane's request (reftel).  Although the 
applicants had not alleged that mining activity had begun or 
was impending there, the judges agreed with Pilane's 
assertion that they needed to verify that this indeed was 
not the case.  Three helicopters, two brought up from South 
Africa, and seven four-wheel drive vehicles reportedly were 
deployed to support this trip to the bush. 
 
FPK'S FUNDING TO RUN OUT BY SEPTEMBER 15 
 
5. (SBU)  On August 25, the applicants' attorney, Gordon 
Bennett, informed the court that the applicants' funds would 
run out by September 15.  He complained that the case, which 
was originally expected to last just over a month, has taken 
a year.  He attributed this to the large amount of time 
spent on tangential issues.  Bennett suggested that either 
the State conclude its presentation by September 15 or the 
court take a three-month recess at that time to allow his 
clients to raise additional funds, as happened in August 
2004.  Pilane refused to truncate his presentation.  The 
judges have yet to make a decision. 
 
PILANE DOMINATES COURT ROOM 
 
6. (SBU)  The judges appear to have granted Pilane 
considerable leeway.  During proceedings observed by PolOff 
on August 24, Bennett raised an objection, which was 
answered not by the judges but by Pilane himself.  The 
judges, presumably in tacit concurrence with Pilane's 
"ruling", said nothing and questioning continued.  In 
 
 
another incident, when Bennett suggested that Pilane was 
leading the witness, the State's attorney lost his temper, 
threatening to drag out the proceedings even further.  The 
judges overruled the objection and asked Pilane to continue. 
 
FPK BARRED FROM CKGR 
 
7. (SBU) Bennett's legal assistant informed PolOff on August 
24 that that Pilane had been overheard instructing an 
official of the Department of Wildlife and National Parks 
not to allow the applicants into the CKGR anymore.  Two 
weeks ago, FPK was denied a permit to enter the Reserve on 
the grounds that if any applicant in their case is living 
within the Reserve, he or she is doing so illegally.  This 
reversed the Government's practice over the past year of 
granting FPK permits to move in and out of the Reserve. 
When PolOff spoke to the Assistant Director for National 
Parks in an attempt to verify that the Department had indeed 
barred FPK from returning to the Reserve, he was referred to 
Mr. Pilane, who was not available for comment. 
 
8. (U)  Although FPK has been denied the opportunity to 
enter the Reserve to consult its clients who have returned, 
the State attorney's team has done so.  In early July, Dr. 
Alexander traveled to the Reserve to inspect the property, 
particularly the goats and dogs, belonging to those who have 
returned to live in the Reserve, apparently including some 
applicants in the case.  Pilane's team neglected to give the 
FPK attorneys advance notice, thereby denying the applicants 
the opportunity to consult with their lawyer on whether or 
not to cooperate. 
 
DITSHWANELO PLEADS FOR RETURN TO DIALOG 
 
9. (U)  Perhaps perceiving that the FPK faces a potential 
breakdown in its litigation, human rights group Ditshwanelo 
issued a statement on August 12 calling for a return to 
dialogue between the San and the GOB to find a mutually 
acceptable arrangement to allow San to remain on their land. 
Ditshwanelo had facilitated such a dialogue before 
litigation began in 2004.  When PolOff raised this point 
with FPK member Jumanda Gakalebone, he said that Ditshwanelo 
is welcome to attempt it, but he had little confidence that 
dialogue with the Government would make any headway. 
 
COMMENT 
 
10. (SBU)  The fact that the Department of Wildlife and 
National Parks deferred to the Legal Advisor to the 
President a straight-forward question about whether or not 
it had barred FPK from the CKGR illustrates the extreme 
political sensitivity of this issue.  It also lends credence 
to the suggestion that the Office of the President, and 
Pilane personally, prompted the decision to bar the FPK from 
the CKGR.  While dialogue is the strategy most likely to 
yield constructive results, the court battle and attendant 
media hype have damaged whatever relationship might have 
existed before as a basis for negotiation.  If dialogue 
resumes, it will do so at a much lower level of mutual trust 
than obtained previously. 
AROIAN 
 
 
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