botswana/namibia - Cour international de Justice

670. The primary legal condition for the creation of title by prescription is the continuous and
public exercise of State authority over the area concerned for a sufficient period of time. In
the opinion of the Government of Botswana the Government of Namibia and its predecessors
have not exercised State authority in respect of Kasikili/Sedudu Island at any time.
(ii) The Alleged Namibian Occupation of the Island
671. The material considered to be relevant by Namibia is presented diffusely both in the
section of the Memorial entitled 'Namibia's Control and Use of Kasikili Island' (pp.73-85) and
also in the section entitled 'The Exercise of Sovereignty' (pp.86-100). The invocation of the
categories of acquiescence and recognition by Namibia will be the subject of separate
examination.
672. The presentation of the material supposed to prove Namibia's 'control and use' of the
island is characterised by vagueness and by reliance upon large categories which turn out to
be fundamentally irrelevant as, for example, the reference to 'German Colonial Rule: 1890-
1914'. This section makes good reading but no single reference can be found to an exercise of
State authority in respect of Kasikili/Sedudu. There is also a degree of geographical ambiguity
and transference. Thus, it is asserted that people who were 'living and farming on Kasikili
Island' paid tax at Schuckmannsburg (in the Eastern Caprivi). The difficulty is that the people
concerned did not live on the island, which is flooded four months of the year, but at Kasika, a
long-established village in the Eastern Caprivi. Consequently, they paid tax as residents of
Kasika.
673. The Namibian Memorial presents a version of the facts which involves the assertion that
the permanent settlement in the vicinity of Kasikili/Sedudu Island was not at Kasika (in the
Eastern Caprivi) but on the Island itself. The relevant passage reads as follows:
"During the agricultural season, the villagers, including the chief, built permanent homes on
the Island, sometimes with courtyards. In addition, there were a number of references to a
school on the Island, apparently a Sabbath or Seventh Day Adventist school. Some witnesses
testified to attending the school, often identifying one of two teachers at the school, either Mr.
Mubukwani or Mr. Mulyokela. For the Masubia villagers, Kasikili Island was truly their
homeland. Many witnesses said they were born on the Island and that their parents,
grandparents or neighbours had died there. Nothing evidences the importance of the Island to
the Masubia more strongly than the fact that many members of the community were buried on
the Island. In this respect, the Island remains today an integral part of the cultural and social
heritage of the people of the area." (emphasis supplied). (Namibian Memorial, pages 77-8,
para. 203). (footnotes omitted).
674. The actual facts are that the Island does not contain a village, and never has. No map, of
any period, shows a village on the Island. German maps indicate a village on the mainland of
the Caprivi Strip, called Kasika (and sometimes Kabuta). The maps designate Kasikili/Sedudu
not as a village, but as an island. Scientific evidence available indicates the absence of any
burials on the Island and the absence of conditions permitting appropriate burials.
675. The lack of credibility of the factual assertions in the Namibian Memorial can be
demonstrated by reference to the assertion that there was a school on the island. The only
school in the area was established at Kasika and this was set up with the assistance of the
British authorities in the period 1927 to 1929 when the Caprivi Strip was under their