Preliminary conclusions and observations by the Special Rapporteur in the field of cultural rights at the end of her visit to Botswana – 14 / 26 November 2014

Gaborone, 26 November 2014

I am pleased to share my preliminary observations at the end of the 13-day official visit I carried out in my capacity of UN Special Rapporteur in the field of cultural rights, at the invitation of the government of Botswana.

The purpose of my visit was to identify, in a spirit of co-operation and constructive dialogue, good practices in and possible obstacles to the promotion and protection of cultural rights in Botswana. I addressed a number of key-issues, in particular the rights of individuals and communities to participate in cultural life: that is, to access, take part in, and contribute to cultural life in all its facets, to enjoy and have recognised their cultural heritage, including through participating in the identification, interpretation, classification, and stewardship of cultural heritage, as well as to express their creativity in the arena of artistic expressions, sports and culture.

I chose these points with a particular focus on Botswana’s policies in the fields of culture, language, education and tourism. During my visit, I sought to discuss with all stakeholders their views on the impact, positive and negative, as well as the potential of policies, programs and initiatives to promote and further protect the cultural rights of all groups.

I will develop my assessment in a written report, in which I will also formulate recommendations. I intend to present this report at the 28th session of the United Nations Human Rights Council in March 2015 in Geneva.

Let me begin by thanking the Government of Botswana for inviting me to conduct this official visit. I visited Gaborne, Maun, Ghanzi / Dkar, Old Xade, New Xade, Shakawe, the Tsodilo Hills as well as several villages in the Okavango Delta, and Ramotswa. I had the opportunity to hold meetings with a number of Government officials, at the national and district levels, responsible in the areas of culture, education, tourism, protection of wildlife and land, as well as several chiefs, including paramount chiefs. I also met with artists, academics, representatives of civil society, and the Ombudsperson. I would like to thank all the persons and institutions I met for their time, warm hospitality, and the wealth of information they shared with me. I also extend my thanks to the Office of the United Nations Resident Coordinator for their assistance.

Botswana must be congratulated for its efforts and achievements in the area of development and reduction of poverty, in particular through important safety nets for vulnerable populations across the country, and its commitment to providing services in the areas of health, education and water to all. Substantial challenges remain, however, as people are scattered across the country in many diverse communities. The government recognised, for example, that a significant proportion of the population depends on welfare, and that poor people are locked into increasing dependence on state support.

Efforts to include and enable people to benefit from the development processes have been rolled out in parallel with policies geared towards nation-building. While the use of Setswana as the national language has largely succeeded in enabling citizens to communicate with each other, it seems that it is time for a second phase of nation-building that reflects, builds on and celebrates the rich cultural diversity of the country. There is a need for a serious national dialogue, at various levels and with all stakeholders, on the way forward.

From a cultural rights based perspective, this implies equal recognition and acknowledgement of the various communities in the country, and of the diverse ways in which people relate to their environment and natural resources, as well as their land. I am therefore happy to note that one important aim of the Vision 2016 is to build a united and proud nation, with a diverse mix of cultures, languages, traditions and peoples sharing a common destiny.

Botswana has adopted several good policies in that regard, including the 2001 National Policy on Culture. The Vision 2016 document states that “Botswana’s wealth of different languages and cultural traditions will be recognised, supported and strengthened within the education system. No Motswana will be disadvantaged in the education system as a result of a mother tongue that differs from the country’s two official languages”. In 2012, at the Universal Periodic Review, the Government appreciated the importance of using mother tongues for early schooling and indicated that it is exploring different strategies to accommodate mother tongues in the education system, including by introducing teacher aides at the primary school level.

I am concerned, however, that good policies and intentions do not always translate into concrete implementation. The implementation of the excellent 2001 National Policy for Culture is uneven. As stated in this Policy, “it is through language that culture is communicated to future generations.” I am happy to see that in some parts districts, such as Ghanzi, the local administration acknowledges the importance of local languages and has started multi-language newsletters. However, several key provisions remain largely unimplemented, such as those relating to the documentation and further development of languages, to the acceptance and respect of other cultures as integral parts of the national stream as cultural identity does not imply an homogeneuous culture, and to the reorientation of cultural practices and values to achieve a society culturally supportive of the rights and status of women.

I know that Botswana wants to increase the quality of its education system. There is growing worldwide evidence that using mother tongues in the initial years of learning significantly increases the quality of education: it allows children to learn and to develop life skills as well as self-esteem. Currently, the system in place further disadvantages children in remote areas who have no or minimal exposure to Setswana in their families and communities. This is especially the case of pupils residing in hostels. I am encouraged, however, by the fact that teachers’ aides have been introduced in Ghanzi and elsewhere, and I recommend that in places where it is needed, more robust measures be taken to ensure that language is not an obstacle to learning. In this regard, I stress the importance of measures being formulated on the basis of research results and analysis of the Department for Curriculum Development and Evaluation.

Many people feel excluded from the main society and lack recognition of their cultural heritage and distinct ways of life, including of their own historical narratives.

In particular, issues relating to the recognition of tribal communities as tribes under the Bogosi Act of 2008 need to be addressed. Unlike the eight Tswana tribes who have an automatic seat in the House of Chiefs, other communities do not. Six years after the Act was adopted, some groups which have requested to be recognized as tribes, such as the Wayeyi, still await a decision.

I recognize that the Kgotla system, which many consider an important institution for consultations at the local level, has enabled communities to remain the guardians of their own cultural heritages. I am concerned, however, that the adjudication system based on the Kgosis (chiefs) leads to the dominant tribe mainly imposing its customary law on all groups in a tribal territory in civil matters.

I am happy to note that adjudication by customary courts on criminal matters are based on the Penal code, but worry about the lack of required training of the Chiefs and tribal administration in this respect.

While the system of arbitration by headmen reportedly resolves about 80% of cases at the ward level, this is without any records being maintained or reviews by the administration. The lack of records deprives authorities of a useful source of information about developments and issues arising at the community level. In my view, the introduction of small claim courts for urban centers is to be encouraged at it will bring justice closer to people, based on the common law.

I welcome the fact that some women are paramount chiefs, but this is not sufficient to ensure the rights of women to decide, on an equal basis with men, which parts of their cultural heritage are to be kept, reoriented or possibly even discarded, in the light of the principle of non-discrimination. To promote gender equality, women may be able to retrieve and build upon elements from cultural heritage that have fallen into disuse.

I welcome the increased number of cultural activities being promoted by the Government, such as numerous festivals and competitions across the country. There is a need, however, to provide more spaces for people, in particular children and the youth but also artists, to engage in creative activities as well as sports in both rural and urban centres. I encourage the Government to expand its support to non-traditional forms of cultural expressions and consider the establishment of a national arts council for the promotion and further development of artists and creative industries. This should be considered in the light of the potential role of culture in the needed diversification of the economy.

I wish to congratulate Botswana for its success in having the Okavango Delta included on the World Heritage List of UNESCO. I particularly welcome the consultative process engaged in by the government before the listing as well as the recognition that the Delta has been inhabited for centuries by small numbers of people with no significant impact on the ecological integrity of the area. I am also pleased that the nomination dossier mentions sites of specific cultural significance for local communities. The government has assured me that there will be no fencing of the area, no eviction of local communities, and no disruption of their rights of access to natural resources. I encourage the government to continue implementing the UNESCO recommendations for the Okavango Delta, in particular, to reinforce the recognition of the local inhabitants’ cultural heritage, effectively and clearly communicate all matters concerning the implications of the listing to the affected indigenous peoples, to respect and integrate their views into management, planning and implementation, and to ensure they have access to benefits derived from tourism. I hope that such steps will help to establish good practices in this area, including for other parts of the country.

In many of the places I visited, I heard the frustration, anger, and fears expressed by people, in particular the San, the Hambukushu and the Wayeyi, which stem from the lack of clear information about and understanding of the policies in place as well as future plans, and from memories of past violations of rights. The legacy of past violations of human rights in the distant and more recent past needs to be acknowledged and addressed. I would encourage the government to facilitate memorialisation processes, understood as providing the necessary space for those affected to articulate their diverse narratives in culturally meaningful ways, so as to engage in meaningful consultations with communities for the future. One area that needs further consideration and research in this respect is how best to deal with the “wildlife-human conflicts”.

The Central Kalahari Games Reserve, established in 1961 to protect wildlife as well as the San people living in the area, has been at the centre of considerable controversy since the government’s decision in 1985 to relocate all people residing in the Reserve to settlements outside the Reserve. The forced relocation of all local populations in 2002 following the closure of all services by the government resulted in a certain number of residents approaching the court to claim their right to continue to live in the land of their forefathers. In 2006, the High Court ruled that the eviction was unlawful and unconstitutional. Today, concerns remain regarding the restrictive interpretation of the right of off-spring to remain on the Reserve upon attaining majority at 18 years of age. The fear amongst affected people is that once the elders have passed away, nobody will be entitled to live in the Reserve. Furthermore, insisting that people relocate outside the Reserve for wildlife conservation purposes is at odds with allowing the continuation of mining and tourism activities. Past attempts to enter into consultations seem to be a deadlock. I encourage the government and the affected communities to engage in meaningful consultations to find viable ways forward.

I was pleased to see that in the Tsodilo Hills, also listed as a World Heritage by UNESCO, the government has taken steps to include communities in the related tourism trade. A good relationship exists between the Museum and the local Community Trust, which now allows both communities, San and Hambukushu, to participate and benefit. The government has put into place many tools for developing community-based initiatives to ensure that the local people participate in the management and benefits of their local natural and cultural resources. I appreciate the work of civil society in this area and welcome the development of partnerships of civil society, the government and the private sector in taking this forward. I encourage the government to continue and expand its community-based approach and to further develop capacity in the tourism industry.

In most of the meetings I have held, the issue of land was a recurring theme. While I understand the complexities of the issue, my main understanding is that there is clearly a lack of understanding by people, of the legal framework in place, their rights, as well as procedures to be followed. There is a need to conduct massive information campaigns to explain the option available, including through proactively engaging with communities.

Finally, I would like to say that Botswana is rich in human resources in terms of academia, State research institutions as well as the grounded experiences of both civil society and the civil services. To deploy these resources effectively, however, requires developing system-wide structured mechanisms for effective feedback and collective strategizing. I would encourage the government to put into place measures that allow it to fully benefit from the valuable experiences, analyses and insights of all stakeholders in planning, monitoring and evaluation of initiatives, especially in the areas of cultural life.