botswana/namibia - Cour international de Justice

161. Earlier in the present chapter the Government of Botswana pointed to the fact that the
main thrust of the Namibian case is founded upon prescription. The detailed aspects of the
Namibian argument will be reviewed subsequently in Chapter 9. The present purpose is to
provide early warning to the Court of the insubstantial character of the Namibian argument
and its alleged factual underpinnings.
162. The extraordinary dimension accorded to the prescription argument appears in the
following passage in the Namibian Memorial:
"During the entire period from 1890 to 1966, when they were responsible for the
administration of Bechuanaland, the British authorities, with full knowledge of the facts set
forth in the two preceding sections concerning Namibian/Masubia occupation and use of
Kasikili Island and South African exercise of sovereignty there, failed to protest, object or
interfere in any way with the situation as it existed ...." (p.102, para. 255).
163. This is optimistic indeed. There is no evidence offered of German and South African
'exercise of sovereignty'. Moreover, there was no dispute in evidence until the period 1948 to
1951: see above, Chapter 1, paras. 18-50.
164. There is no doubt that people from the Caprivi used the island at times for cultivation
and pasturage, but then so did people living on the other side of the River Chobe. A striking
defect of the Namibian Memorial is the absence of any reference to the social history of the
Chobe district. The areas on both sides of the Chobe were, and are, inhabited by Basubia (a
people common to both sides of the boundary) and movement between the Caprivi and the
Bechuanaland Protectorate side of the River has always been relatively uncontrolled. (The
Court is respectfully referred to the Botswana Memorial, p.15). In these circumstances the use
of the island by Basubia and other local residents cannot provide an inference as to the
'exercise of sovereignty'.
165. In any case the only evidence available suggests that use of the island by people from the
Caprivian village of Kasika was dependent upon permission given by the District
Commissioner based in Kasane in the Bechuanaland Protectorate.
166. In this connection the report of Mr. Redman, District Commissioner at Kasane in 1948,
is highly relevant. Redman reported to the Government Secretary at Mafeking as follows:
"5. Since the attached report was prepared I have received further information from an
inhabitant of the Island that in 1924 a Caprivi Chief named Liswaninyana applied to Captain
Neale, the Resident Magistrate at Kasane, for permission for his people to plough on the
Island and graze cattle there. This was evidently granted verbally as no written agreement is
known. At this time Government Oxen were grazing on the Island but they were removed in
1925. Before 1924 the same informant told me that there was only one Caprivi family
ploughing there but they had no authority to do so." (Botswana Memorial, Annex 22).
Note: In the original Captain Neale's name is spelt 'Nellie'.
(ii) The Documents show that in 1951 the United Kingdom expressly rejected the South
African proposal for an adjustment of the Boundary