botswana/namibia - Cour international de Justice

(iii) The Alleged Authority of the Eastern Caprivi Chiefs
682. The Namibian Memorial offers an argument consisting of the following combination of
elements:
(i) The appearance of German administration in the Eastern Caprivi (a process beginning in
1909).
(ii) By virtue of the system of indirect rule, chiefs were elected only with the agreement of the
German administration and were therefore essentially agents of the German administration.
(iii) The chiefs had authority (this is an unargued assumption) to engage in title-generating
activities on behalf of the German State, even if this involved the risk of modifying recently
concluded boundary treaties.
(iv) The chief in Kasika carried out such title-generating activities in Kasikili/Sedudu Island
either directly or through the agricultural activities of his subjects.
683. These elements call for analysis. Each element will be examined in turn.
684. First element. The appearance of German administration in the Eastern Caprivi is
described in the Namibian Memorial and the description is embellished with a photograph of
the installation of Chikamatondo as chief of the Masubia (Namibian Memorial, pp.88-93).
Not one line, not a single word, relates to Kasikili/Sedudu Island. The entire section consists
of prevarication.
685. Second and third elements. The reference to the British policy of indirect rule is totally
inconclusive. It is suggested by inference that the German policy in South-West-Africa was
modelled on British policy in Nigeria (Namibian Memorial, p.89, para. 224). No single piece
of evidence supports the inference. The Government of Botswana is willing to accept that,
both in German-controlled territory and in Bechuanaland Protectorate, the authority of the
traditional chiefs was subjected to a process of colonial approval. The chiefs thus became in a
certain sense agents of the colonial administration on both sides of the River Chobe. But there
is no evidence, and no evidence is offered, to the effect that the chiefs had authority to engage
in title-generating activities. Both legally and historically this would be eccentric. No
instances of such authority are known of anywhere in colonial Africa. The Namibian
Memorial provides the inference, but gives no evidence in respect of the situation in the
Eastern Caprivi (and no other examples). It is an astonishing proposition that the chiefs could
engage in activities which would subvert the results of recent and prolonged negotiations
between London and Berlin.
686. Fourth element. As it has been pointed out above, there is no evidence that the Eastern
Caprivi chiefs had authority to engage in title-generating activities. It must follow that any
activities which were in fact carried out on the island could not create title in favour of
Germany or its successors. The evidence relating to the alleged activities and presence of
people from the village of Kasika (in the Eastern Caprivi) on the island has been examined in
Chapter 7 above. For present purposes it must be emphasized that the use of the island for
ploughing did not connote possession as a matter of title on the basis of international law. To
this day, Basubia from Botswana own fields in the Eastern Caprivi. Ownership or use of land
for private or chiefly purposes has at no stage involved a change of sovereignty.