SLOW PROGRESS IN CKGR COURT CASE, FPK OUT OF FUNDS

UNCLAS GABORONE 001228

SIPDIS


SENSITIVE

AF/S FOR MUNCY

E.O. 12958: N/A
TAGS: PHUM PGOV BC SAN CKGR
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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