botswana/namibia - Cour international de Justice

182. The cardboard character of the Namibian case is apparent when it becomes clear that no
protest, either at the local level or at the diplomatic level, appeared from South African or
Namibian sources until 1992. (The exchanges of 1992 will be examined in Chapter 9). The
crucial point is the incompatibility of the Namibian assertions of Masubia 'occupation' from
1890 to 1966 and thereafter (see above, paragraph 51) and the absence of any protest, from
Chiefs or other sources, in face of exclusion from the island over a period of thirty-two years.
183. For the sake of clarity, it is to be emphasised that Botswana does not accept that the use
of the island by people from Kasika was à titre de souverain, and does not accept that it was
continuous or in any sense exclusive. Residents from the Bechuanaland side of the River
Chobe also used the island (see Chapter 7 below) and at all times use of the island was
regulated, so far as this was necessary, by the authorities at Kasane.
184. The hollowness of the Namibian factual assertions is further confirmed by the fact that,
when incidents occurred, these did not result from attempts by Caprivians to use the island for
agricultural purposes, but from the anti-poaching activities of the Botswana Defence Forces.
(F) Cultivation by the Basubia is unrelated to any question of Sovereignty: the Basubia
are a people common to both sides of the boundary
185. Statistics available indicate that twelve thousand members of the Basubia people
currently live in Botswana and nearly six thousand in Namibia. The Basubia people are
concentrated in northern Botswana and in the Eastern Caprivi district of Namibia. In the
colonial period there were few obstacles to the free movement of people and the Basubia
planted their gardens and grazed their cattle on both sides of the international boundary.
186. Against this background it was, and remains, normal for Basubia residents in Botswana
to own plots of land in the Eastern Caprivi and for Basubia residents to own land on the
Botswana side of the Chobe River. The ownership of land by Basubia of Botswana citizenship
in the Caprivi is a matter of local knowledge. During the proceedings of the JTTE, Julius
Mundia, a resident of Kasane, gave evidence that his father cultivated land on the Namibian
side of the boundary: see the Final Report of the Joint Team of Technical Experts, Transcript
of Hearings, Vol. I, Kasane (Fourth Round), p.54.
187. The reality of the life of the Basubia as a people common to both sides of the boundary is
completely hidden in the Namibian Memorial. Thus no reference is made to the Basubia
living in the Bechuanaland Protectorate and now in Botswana. No reference is made to the
divided chiefdom, in spite of the fact that this is referred to in the evidence of Chief
Moraliswani before the JTTE: Namibian Memorial, Vol. III, Annex 2, final two pages (not
numbered).
188. In a number of passages the Namibian Memorial goes so far as to present the Basubia as
the predecessor in title (during the colonial period) of Namibia, in effect as a separate political
entity. Thus in one passage, Namibia refers to 'Namibian/Masubia occupation and use of
Kasikili Island and German and South African exercise of sovereignty there...' (Namibian
Memorial, p.102, para. 255). This passage contains a quite remarkable number of solecisms
and an elision of different historical phases. The elision of the Basubia and the German
Empire is eccentric enough. Even more eccentric is the suggestion of Namibia that one
section of the Basubia enjoyed a corporate identity and a monopoly of Basubian interests in
the area. The assumption that the Basubia had the capacity to change the international