botswana/namibia - Cour international de Justice

Honourable Chief: People moved out from Kasikili Island when Liswaninyana died, after he
died.
Co-Chairman (Botswana): Thank you Mr. Chairman. I thank the Honourable Chief for his cooperation."
(Namibian Memorial, Vol.III, Annex 2, p.209)
176. It is generally accepted that Chief Liswaninyana died in 1937. Thus, according to Chief
Moraliswani, cultivation stopped in 1937. This is significant because some of his subjects
asserted in their oral testimony that it was in 1958 when people from Kasika stopped using the
island: see below, Chapter 7, paras. 465-70.
177. The witnesses produced by Namibia in front of the JTTE gave different chronologies
relating to use of the island by people from Kasika. However, the latest date proposed was
always 1958.
178. The present purpose is to make a demonstration based on the assumption that the Kasika
villagers continued to use the island until 1958 or thereabouts. In 1960 the island became part
of the Chobe Game Reserve: see Botswana Memorial, Annexes 32, 33, 34 and 37. The
relevant legislation employs the international boundary as the northern limit of the Game
Reserve, and the plan annexed to the legislation includes Kasikili/Sedudu Island within that
boundary. That the island formed part of the Chobe Game Reserve is confirmed by the
affidavit of Mr. Slogrove, Game Warden at the material time (Botswana Counter-Memorial,
Annex 51). Moreover, it was in his capacity as Game Warden that Mr. Slogrove arrested
poachers on Kasikili/Sedudu in 1976.
179. It is a striking coincidence that the Namibian Memorial contains no proof that the island
was used for cultivation by Caprivians in the period 1960 onward. The reason for this was that
as of 1960 all cultivation on the island had been prohibited by the authorities of
Bechuanaland. The co-incident reason was that cultivation had stopped many years earlier.
(iii) In face of the Prohibition there was no Protest from Namibian sources until 1992
180. It is the submission of the Government of Botswana that in 1960 and subsequent years
all agricultural use of the island was forbidden and that the regime of the Game Reserve was
enforced on the island by Botswana officials, including Mr. Slogrove. This state of affairs has
to be assessed in the light of the position adopted in the Namibian Memorial to the effect that
there was a German/Namibian/Masubia occupation of the island from 1890 onward.
181. As the Namibian Government expresses the matter:
"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 German and South African exercise of sovereignty there, failed to protest,
object or interfere in any way with the situation as it existed. As is shown in para. 258, infra,
this unbroken record of silence and passivity contrasted markedly with British conduct in
neighbouring areas where it was the colonial power. After Botswana became independent,
Botswana maintained its silence for almost two additional decades." (Namibian Memorial,
p.102, para. 255).