Diamond Exploration and the San in Namibia: Toward a Legal History

I. Introduction

The various San peoples, formerly known as Bushmen, of the Kalahari Desert and Southern Africa are among the most documented indigenous peoples in the world.12 Dozens of anthropological studies have been conducted by some of the most renowned anthropologists of our time.13 A popular (and racist) South African era movie, “The Gods Must be Crazy,” made N!xau an unknown Ju/’hoansi actor from Nyae Nyae, world famous.14 One of the greatest anthropological documentary films ever made, “The Kalahari Family,” documents two generations of work at Nyae Nyae by Laurence Marshall and his children, John and Elizabeth, from 1950 to 2000.15 There is also a substantial ecological literature on the Kalahari, both romantic and real, that have given the Kalahari an important place in the world's ecological imagination, as a representation of wild Africa.16 The San have occupied their lands in the Kalahari as long as any people on earth have continuously occupied their lands. This region of northwestern and western Namibia, extends into Botswana and South Africa, borders meaningless to the San.17 These San are the poorest people in Namibia, (as well as in Botswana and South Africa) living without employment on subsistence agriculture, hunting, gathering, and various forms of government and private aid.18

About 2,000 Ju/’hoansi live in Nyae Nyae Conservancy, part of the former South African era homeland “Bushmanland.”19 Their ancestral land has been continuously occupied for at least 40,000 years, with evidence extending back as far as 100,000 years.20 The border between Botswana and Namibia is a colonial era border, dividing the Ju/’hoan lands between the two nations. In all there may be 7,000 Ju/’oansi in Namibia and an equal number in Botswana.

The Ju/’hoansi at Nyae Nyae are, together with other San groups, the poorest people in Namibia, with the majority living on less than $1 a day, abject poverty—a large bag of mealie meal, the ground corn or millet porridge that is the basic food staple in Namibia, costs about $20. These people are hungry and lack basic health care, although ironically their life expectancy is longer than the Namibian average because the San, because of their isolation, have less of an incidence of AIDS than other tribes. The traditional ways of hunting and gathering on the land collapsed in the 1950s and 1960s in Nyae Nyae. First the South African government concentrated Ju/’hoansi at Tsumkwe, their administrative center for “Bushmanland” – which was constructed in 1959. By the 1980s the South African army had concentrated even more San in the area, and Tsumkwe became a rural slum, characterized by heavy drinking, fighting, and the highest murder rate in Namibia—all of the classic indicators of social disorganization.21

Beginning in the 1980s, with the help of various non-governmental organizations (NGOs), the Ju/’hoansi at Nyae Nyae began a movement to return to their traditional lands, called “N!ore,” and reconstitute themselves in the traditional family groups that were the basis of Ju/’hoan social order. Ultimately, 36 n!ore were resettled, and the people created a diverse economy based on small farms, stock husbandry, with some hunting and gathering. There was a Ju/’hoan revitalization movement.22

At Namibian Independence in 1990 these lands were in danger as the adjoining herding tribes had overgrazed their lands and coveted the vast grasslands of Nyae Nyae. Because as many as 75% of all Namibian San were in some way dependent on the South African Army for subsistence in the 1980s, their culture was both degraded, and their place in the new nation was marginal. But the Ju/’hoansi presented themselves at various national conferences as well organized and articulate in the defense of their lands. At a National Land Conference in 1991 in response to the widely believed idea that they had never exercised any traditional ownership rights to their lands, they produced an elaborate map of their n!oresi, showing the particular lands occupied by each extended family group and explaining how these rights operated in relationship to other San groups.23

About 80% of their lands in Namibia and a smaller portion of their lands in Botswana are under Exclusive Prospecting Licenses (EPLs), held by an Australian company, Mount Burgess Mining.24 An EPL gives a company the exclusive right to explore for diamonds in a given area of up to 1000 sq km for three years, renewable twice for two years each time and, under exceptional circumstances, further renewals.25 If diamonds are found, the exploration company has exclusive rights to file for a mining license, good for twenty five years, with provision for renewal for fifteen years at a time—or to sell this right to a better capitalized mining company. If it is uneconomic to immediately develop the mine, the company can file for a Mineral Deposit Retention License, (MDRL) which allows it to hold exclusive rights to mine for five years, again subject to renewal.26 Prospecting activity can be observed at Nyae Nyae, and is vividly described, with the aid of maps and technical drawings on the Mount Burgess Mining Company website.27 Assuming liberal use of the extension provisions in the Mining Law, exploration done in 2010 that made significant diamond strike, might defer mining for as many as forty years.28 The company website describes its exploration process, involving the collection of 3,700 loam samples and reports that “initial success of this model has been the discovery of three non-diamondiferous Gura Kimberlites. The Company believes that the presence of macrodiamonds and G 10 garnets infers the existence of a local diamondiferous kimberlite source.”29 As of 13 May 2011 the company held interests in 13 granted EPLs and had two additional EPL applications pending. It owned 100% of one EPL, 90% of eight EPLs in conjunction with Kimberlite Resources (which held the remaining 10%) and 85% interest in four more EPLs, in conjunction with Fortitude Investments (which held the remaining 15%).30

A few hundred miles to the north and west live the Khwe, an unrelated San people. They occupy Babwata National Park in Namibia, as well as other lands, extending across two borders into Botswana and Angola. About 4000 Khwe live in Namibia, with an economy similar to the Ju/’hoansi.31 Seven EPLs are held by Namdeb in this region, covering much of the area from Divundu to Kongola.32 There are other San peoples in Namibia, but it is the Ju/’hoansi and Khwe who are fortunate enough to live on their traditional lands, occupying a substantial land base.33

This diamond prospecting is not just a threat to these two ancient cultures. Other San peoples live in, or near, these areas as well, on both sides of the border. Forced removals in the South African era have confused traditional hunting and gathering areas of these nomadic peoples, as well as intermixed formerly distinct San peoples. Additionally, Mubukushu, Herero, Ovambo, and other Bantu speaking peoples, live there as well. More recently, two wars, the first for Namibian Independence and the second the Angolan Civil War, have resulted in extensive military operations in northern Namibia, both militarizing groups of San, and also displacing the San and other peoples who lived there. Finally, an insurrection in Caprivi in 1999 resulted in removal, migration, and killing of more San, as well as other peoples.34

Aside from these vulnerable and poverty stricken human populations, both these areas are protected. The Nyae Nyae Conservancy is a legally gazetted communal conservancy, permitting people to live and farm there, but also with a wildlife management plan designed to restore African wildlife populations also removed by the war.35 A rare population of African wild dogs lives there, along with large herds of elephants, ungulates, lions and leopards, and other wild game.36 To the north is Kaudom National Park, a pristine game park still inaccessible to all but the most adventurous travelers.37 Babwata National Park, northeast of Khaudom, is newly proclaimed, but also has large herds of elephants and other game, as well as populations of lions and leopards.38

These lands are within the boundaries of the young nation of Namibia, independent of South Africa only since 1990, following a long war for independence that killed thousands and dislocated many thousands more, including many San.39 Namibia is a large desert country with a small population, just over 2 million. While the nation contains many different peoples, the Ovambo, a Bantu people living in the far north, make up about 70% of the population and exercise effective political control.40 The San, composed of distinct groups,41 speaking different languages or dialects, together amount to no more than 40,000 people, less than 2% of the population, and are marginalized, without effective political representation.42 Namibia is among the most prosperous and democratic nations in Africa, but still challenged by great poverty, high levels of HIV-AIDS infection,43 high levels of unemployment, and uneven development.

This description does not intend to draw a romantic picture of a region of Africa. Rather, it sets the stage for an analysis of the process of diamond exploration and of the mining activities that may be expected to follow. On the simplest level, the analysis has often been repeated: poor indigenous peoples have some history of living on top of rich natural resources which are exploited by multi-national corporations to the detriment of these poor people. Some version of this story has been repeated hundreds of times, as any search of this literature reveals.44

What follows is a description of some main themes in the legal history of this pattern of exploitation that can broaden the above description and hopefully open up a more complex dialogue of the conflict between extractive industries and indigenous peoples. As the world's resources become fewer and population pressure increases, this is likely to be an increasingly violent conflict, with indigenous people increasingly the losers.45

In looking at this process through the lens of legal history, we can isolate five distinct categories for analysis. First is the rise of the modern multinational corporation and its increasing capacity to incorporate the state in its business activities. Although this is clearly not the first temporally – colonialism is –mining corporations now drive this exploitation world wide and are economically more powerful than many third world states. Second, is the trend toward the internationalization of indigenous rights law, culminating most recently in the enactment of the UN Declaration of the Rights of Indigenous Peoples, a document signed by the Republic of Namibia and incorporated into Namibian domestic law by Article 144 of its Constitution.46 Third, while obviously related to the struggle for international recognition of indigenous rights, conflict over land has its own dynamic, because poor people are living in increasingly stressed political and economic conditions, on increasingly less land. Fourth, is the continuing evolution of the colonial and neo-colonial relationship, including its legal dimensions, in much of the world, and its continuing relevance to both mining and the exploitation of indigenous peoples. Fifth, and doubtlessly related to the previous discussions is the inflammatory analytical category of genocide, which has been introduced into some (but not all) of these situations. As this issue is clearly present in Namibia, and has an existence in legal history, it seems appropriate to address it explicitly.

II. The Modern Multinational Corporation and the State

There are several classic issues here that extend back to the rise of the business corporation in western law, a process that traces back only to the nineteenth century (although there are clearly earlier antecedents).47 First is the idea that the corporation is an artificial person, with no soul, yet with the ability to amass huge fortunes and extensive political power. The fact that corporations are cheap to create and at least partially anonymous means that power can be exercised secretly, beyond the oversight of the public, or of governments. Finally, as this power increases and corporations become more and more powerful, they can either influence or dominate state institutions, incorporating the state as its agent in the furtherance of corporate goals. We can debate the extent to which that is an issue in well-established and powerful democracies, such as the United States, where corporations, as citizens, are allowed to spend freely on candidates for public office or to influence the public's perception of issues in elections. But in weaker democracies and poorer nations, with greater concentrations of economic power this danger clearly is much larger.48 Indeed, large multi-national corporations may capture the state.

DeBeers in both Namibia and Botswana, two of the largest diamond producing countries in the world, has effectively purchased at least some segment of the state by incorporating the state into the corporation in the form of DeBeers run “joint-ventures” – Namdeb and Debswana.49 Not only do these two corporations take the joint name of DeBeers and these respective nations (itself somewhat anomalous in creating a new word, merging a corporation with a nation), but they subordinate the nation to DeBeers: both these corporations are directly run by DeBeers officials with Namibian and Botswanan officers subordinate to the expatriate bosses.50 The two corporations then become the largest earners of foreign exchange for both nations −60% for Namibia, 80% for Botswana, making both governments dependent on these corporate earnings. Botswana has a $1.5 billion dollar shortfall in its state revenue due to the collapse of the international diamond market.51

This has led to political and economic distortions in both societies. In Namibia, for example, diamond mining, a heavily mechanized industry, employs only 3000 workers (down from about 5000 ten years ago) The diamond mining industry draws a significant portion of governmental support, while the agricultural sector, which employs about half of the Namibian population in subsistence agriculture, has been allowed to languish. In this context, the entire concept of the regulatory state vanishes. Mining regulations, health and safety regulations, and environmental regulations are necessary to structure the modern mining industry. But the regulatory state must be both sufficiently independent and have sufficient legal capacity to enforce such regulations. This is simply impossible in a weak and poor country with a rich and powerful mining industry.52

Democracy works when governments are transparent and can be held accountable. Corporations are not held to the same standards. The mining industry in general and the diamond industry in particular are notoriously secretive.53 DeBeers, Namdeb and Debswana are large and powerful diamond mining companies. But Namibia has dozens of companies holding EPLs and it is not clear what the relationship is between them.54 Faced with a boycott of DeBeers over the dispossession of the San from the Central Kalahari Game Preserve, Debswana simply sold the offending Gobe Diamond Mine to another company, Gem Diamonds.55 While DeBeers has spent a fortune to protect its image in the dirty world of conflict diamonds, hundreds of small mining companies carry on different pieces of the mining enterprise, with different levels of dishonesty.

The seven diamond EPLs in Caprivi are held by Namdeb, thus it is clear that DeBeers is prospecting for diamonds there.56 It is not clear who is behind the prospecting in Nyae Nyae. These thirteen EPLs (with two applications pending) are substantially held by an Australian company, Mount Burgess Mining Company, that has no record of diamond finds anywhere in the world.57 It holds four EPLs in the Hardap region of Namibia.58 It has a lead and zinc mine just across the border in Botswana, so it has a presence in the region, but this mining sector is depressed.59 Yet, Mount Burgess's largest shareholder is Citibank, holding 17% of its stock. Its stock, publically traded under the symbol MTB on the Australian Stock Exchange, currently (as of June 2011) trades at just over one cent a share, indicating that nobody has much confidence in its diamond finds in Namibia – otherwise the stock would very quickly sell at this price.60

All of this corporate activity is in the name of development. The Ministry of Mines and Energy website is very easy to navigate and very welcoming to international corporations.61

III. The International Law of Indigenous Rights

There can be no question now under international law and, increasingly under domestic law, that indigenous peoples have substantial rights in their lands, lives, cultures, and other elements of their existences. Indeed, in the business of international mining, indigenous rights is the proverbial gorilla in the closet: mining companies prefer to do business with governments far removed from the site of their mines. A few years ago, no country in Africa recognized any form of indigenous rights.62

Indeed, the opposite seemed clear. Not only had the colonial powers extinguished whatever rights the original peoples had, any assertion of indigenous rights was, in itself, a resurrection of the colonial era, raising the ugly spectre of “tribalism” and fomenting discord and division. But Namibia, Botswana, and South Africa have all signed the UN Declaration on the Rights of Indigenous Peoples. Indeed, every country in the world has signed it with the United States and Canada being the last. Moreover, Namibia, a creation of the UN, has a clause in its Constitution recognizing international law and incorporating it into domestic law.63

In addition, the history of unrest, dictatorship, and illegality that has defined African governments has led to at least something of a backlash on the continent. The African Commission on Human Rights and Peoples Rights has begun to function independently64 and some governments like Namibia are sensitive to human rights concerns. One of their most significant cases is a land rights case in which the Commission found that the Kenyan Government had violated the land rights of the Endorois tribe by creating a game reserve on their lands, removing them from these lands without compensation and without any provision for maintaining their culture or their way of life.65 This decision has since been ratified by the African Union and stands as one of the strongest indigenous land rights cases on the Continent.66 There is an active human rights constituency within the country, a free press, the Legal Assistance Centre, a public interest law organization, and a Human Rights Documentation Centre at the University of Namibia.

DeBeers itself, in the context of San land rights in the Kalahari Desert in Botswana disingenuously turned the San's claim of indigenous rights into the reassertion of Apartheid: a regime of separate rights for indigenous peoples.67 While clearly DeBeers, as a South African company that made billions under Apartheid, knows what it speaks of, the idea that the San could assert a new regime of Apartheid by asserting their land rights is both disingenuous and offensive. It is also in violation of the UN Declaration, since that document recognizes and defined indigenous rights. DeBeers has no legal basis to deny such rights exist.

The ILO Covenant on Indigenous Rights was asserted in Botswana numerous times in the context of the fight over San lands in the Kalahari.68 While it was repeatedly pointed out that Botswana had never signed the agreement, the clear implication was that the ILO covenant's wide acceptance had created customary indigenous rights under international law. Indeed, Botswana is now best known in the world for denying San rights in the Kalahari because of a powerful campaign against the country by Survival International that included, besides a media blitz, a million dollar lawsuit which a group of about 170 San won.69 These San were relocated out of the Central Kalahari Game Reserve over a period of many years, removed to two bare resettlement camps. Groups of San continuously both resisted the removal and also left the removal camps, returning to the CKGR. Finally, the government acted to remove the last San living in the reserve, and stopped supplying them with water. The San argued that this forced removal was in order to vacate the CKGR for diamond exploration, a fact that government has always denied, insisting instead that the occupation of a game reserve was inconsistent with wildlife conservation activity there. The San were able to return to the places in the CKGR under considerable governmental duress. While three judges wrote three different opinions, one based his judgment on the common law doctrine of aboriginal title, relying on Mabo,70 an Australian case, while another judge found that Roman Dutch law, derived from South Africa, acknowledged a right to live in the CKGR because the Government of Botswana had allowed them to remain there for so long without attempting to remove them. The use of both the common law and Roman Dutch law in this case makes it clear that numerous legal arguments are available, under any legal regime, to defend indigenous land rights in Namibia, as well as Botswana and South Africa. The fact that there is no clear holding has diminished the importance of the case, but the Government of Botswana did not appeal, probably fearing it would lose and produce a stronger opinion.

There is a substantial dispute over the meaning of this lawsuit that is largely irrelevant to the situation in Namibia:71 the details do not matter so much as the fact that there was a big international outcry against Botswana that the Namibian government would probably prefer to avoid.

It is important to understand that it is the vigor with which the various indigenous peoples of the world struggled to maintain their cultures in the face of colonialism and globalization that is at the core of the UN Declaration and the increased recognition of indigenous rights in domestic and international law. The San see themselves as indigenous peoples with clear rights in the context of the Namibian nation (and the Botswanan nation) and this is part of their identity.

IV. Indigenous Land Rights In Namibia, Africa, and the Third World

While no one can question the idea that indigenous peoples around the world are increasingly recognized as having a wide variety of rights as peoples, embodied in the UN Declaration, the actual right to their lands is a much more immediate and concrete struggle. It is impossible to say exactly what this right amounts to in Namibia twenty years after Independence.72 The issue of aboriginal title has never been litigated and the government has declared that it owns all the communal lands in Namibia – just under 50% of the land, occupied by at least eleven different tribes.73 The modern Namibian state has asserted state ownership of all the communal lands, following South African example, and typical of communal lands all over Africa.74 Article 100 of the Namibian Constitution provides that “Land, water and natural resources blow and above the surface of the land and in the continental shelf and within the territorial waters and the exclusive economic zone of Namibia shall belong to the State if they are not otherwise lawfully owned.” While this “otherwise lawfully owned” language is not clearly defined anywhere, it clearly states that the state does not own lands that others own. This leaves various forms of customary and communal ownership at least arguable under the Constitution.

In practice this leaves the occupation and allocation of these lands to local custom, operating under tribal authority, but with significant problems. A Ju/’hoansi traditional authority sits in Tsumkwe and has legal authority over their customary lands., but this authority does not extend to other tribes, nor to international mining companies.75 Ovambo subsistence farmers in the north, for example, have been displaced from their lands for development either without compensation, or by being given either much less land, or inferior land, or land far from their residences. Wealthy communal land holders have illegally fenced huge grazing areas in many parts of Namibia.76 The San have been pushed off some of their lands by cattle herders from other tribes.77 Conservancies have been gazetted incorporating individual farms into wildlife areas where farming is prohibited with no compensation to those farmers.78 The reach of Namibian state law is simply too weak to have much impact on these lands.

Underlying this complex land issue in Namibia, and in any colonial settler state, are two distinct types of land “ownership.” White settlers were given or sold land by the state in fee simple, recording their titles, with their “ownership” recognized by the state. If these state granted titles are surface rights only under Namibian law, there is no legal problem because all these farmers took their land subject to the will of the sovereign, taking and holding their title under whatever legal terms the German, South African, or Namibian state provides.

But aboriginal title is not limited by the state and its colonial settler land titling regime. Black Namibians had limited access to land under Apartheid. They did not have the legal basis to record their communal land rights, nor access to lawyers to do that legal work if they could. Aboriginal title is not just a land title: it is a right to use the land to maintain indigenous people's lives and cultures. Mining is very disruptive of all social relationships.

While Namibia's Constitution is the only constitution in the world to require the state to protect the environment, in practice there are inadequate provisions to protect wildlife or other natural features within a protected area, in this case the Nyae Nyae Conservancy.79 Prospectors need take no account, for example, of the movement of wildlife when drilling core samples from the earth, a noisy activity that is surely disruptive. No environmental assessment is necessary for these exploration activities.80

The final irony here is that while it is increasingly clear under a variety of international law regimes that the land rights of the San and other indigenous peoples are protected, nothing on the ground in Africa has been done to provide legal means to enforce this body of law.

V. Colonialism and Neo-Colonialism

DeBeers has argued in Botswana that whether or not the San have any traditional land rights has nothing to do with mining because under Botswanan (and Namibian) law, all mining rights are held by the state.81 Thus, at least in the view of the Namibian government, no landowner in Namibia, whether it be under aboriginal title or in fee simple, owns the mineral rights under their land.82 In practice, this means that the owners are compensated for the use of their surface lands to access minerals, but given no compensation for the minerals. Therefore, under this logic, San land rights are irrelevant for mining companies, because they only need a few square miles for each mine, leaving the San free to use the rest as before. This argument completely denies the scope of the ecological and social footprint of a large mine, which will have roads, a village, schools and offices, bars and pool halls and an influx of non-San workers.

Namibia is the modern state that succeeds the former German colony of South West Africa. This colony was a mining colony initially, but then expanded to an agricultural colony, a colonial-settler state. But, as each land title was awarded by the colonial government, the state reserved the mining rights.83 Thus none of the hard working German farmers who moved to Namibia “owned” their mineral rights under their lands. They owned the surface only.84 These colonial laws, dating from the nineteenth century are still the law of Namibia.

Similarly, most of the South African laws that governed Namibia from 1920 to 1990, were incorporated into Namibian law under the Namibian Constitution at Independence.85 Law is a powerful force in social organization and lasts from generation to generation, even, as here, through revolutionary political transformation. As the Apartheid era state was defeated in a bloody war, its law, structuring two land-holding regimes, one black and one white, and putting mineral rights in the hands of first the German colonial state, and then the Apartheid era Afrikaaner state, survived and are, indeed, still the law. Namibia was virtually incorporated into South Africa after 1920 and until 1990. Most of the indescribably awful character of South Africa's racist apartheid regime was extended to Namibia.86 This anomaly has not been adequately dealt with in Namibian law, as the modern Namibian state benefits from many of these colonial era laws.

Diamonds were discovered in Namibia in 1908. The diamond mining interests were then so powerful politically that a huge area of southwestern Namibia, measuring hundreds of miles across, was legally declared exclusively to diamond mining companies, the Sperrgebiet, “forbidden area.”87 The indigenous people of this region, the Nama, were removed to other parts of Namibia and adjacent South Africa.88 African workers in the area were kept in patrolled camps, rigorously searched, and the governance of this region was, in almost every respect, turned over by the state to the mining companies.89 The indigenous population was not considered to have rights in these decisions and only served as laborers within the context of a mining economy.

Colonial governments, by definition, are undemocratic, getting their power from military force and promoting a foreign legal order. Mining companies benefitted greatly under Namibia's three colonial governments, German, British, and South African.90 Colonial systems were expensive and expected, as much as possible, to pay their own costs. Mining was the key to economic prosperity in Namibia, as the desert climate always made agriculture marginal. By this same perspective, colonial legal regimes were derivative of the colonial state. Regulating the indigenous population as a stable work force was one objective, as well as the general control of indigenous peoples, always with some thought of uprising. Beyond that, local white commercial interests needed support and protection, and this was the primary object of mining laws.91 The rapid extraction of natural resources led to prosperity for both the colonial government and those who invested in mining. This wealth accounts for South Africa's determination to retain Namibia illegally, in defiance of international law, and the long war for Independence that followed. This was one of the world's last wars of decolonization, and it is foundational to modern Namibian history. Namibian and South African diamonds financed much of this war through the financial support that the mining industry gave the South African state.

VI. Genocides and Ecocides as Forces in Legal History

Following historical themes in analyzing the displacement of the San for diamond production, it is impossible to ignore the fact that the San were the victims of genocide and their place in the Kalahari Desert is structured by this reality. The Kalahari Desert, in turn, is, because of increasing desertification, cattle grazing, diamond mining, and the accompanying settlement and road building, also being transformed in a process that might be called “ecocide,” the destruction of a pristine natural environment. The San peoples of Southern Africa are one group of peoples who have lived since time immemorial in one of the earth's harshest environments. In recent years more than 1000 San from Caprivi fled to Botswana to avoid military repression following a failed uprising in Caprivi in 1999. Some of these people disappeared and are widely assumed to have been killed by the Namibian Army.92 Through the 1950s the practice of “blackbirding,” abducting San workers through deception and forcing them to work as farm laborers, was relatively common.93 Many San still live on isolated farms and are paid less than the minimum wage with a limited opportunity to leave. Obviously, the fact that the San experience this repression has an impact on their capacity to resist the Namibian government and mining corporations backed by the Namibian government as it exploits their lands.

It was not only the Herero who were victims of genocide in the Herero War of 1904-05, with the survivors fleeing into the Kalahari where many of them live today, with thousands of cattle, transforming that fragile environment.94 German colonial troops, called to the aid of German farmers reporting stock theft from “bushmen” simply rode them down and shot or hanged them, through the end of German occupation of Namibia in 1915.95 Ovambo, Kavango, Herero and other tribes attacked, killed, or enslaved San well into the twentieth century. The South African Army, out to kill SWAPO freedom fighters, took advantage of this history to mobilize the San as trackers for the South African army. Once the war was over, these San were discarded in camps all over northern Namibia, many of which are still occupied by San. 96 Others were relocated to South Africa, creating tattered refugee camps on the margins of the Kalahari there.97 Not only did the South African army occupy bushmanland through the 1980s, but it brought in up to 1000 non Ju/’hoan San peoples from other areas to assist them, leaving many of them when they withdrew in 1990.98

This genocide is no longer occurring, but historically it is part of the explanation of why the San are still so marginalized in Namibia today, and why their lands are essentially “open” to exploitation of all kinds without the protection of the law, a continuing ecocide.99 The San culture has been battered beyond comprehension by these forces. The San have great difficulty mobilizing politically to defend their lands or their people from further exploitation. The fact that Mount Burgess can license EPLs from the Namibian government, itself, through Namdeb, in the diamond business, and prospect at will on San lands in Nyae Nyae Conservancy without the need for permission from the Ju/’hoansi is simply the final example of this oppression.

The ecocide of the entire Kalahari Desert itself continues, and represents an entirely different problem, requiring very different analytical skills to discuss it. DeBeers claims, quite disingenuously, that a diamond mine only occupies a few square kilometers of desert, leaving the rest presumably untouched, and still available for whatever traditional use the local inhabitants wish. Indeed, a number of national parks exist to further this protection, with the Kagalagadi Transfrontier National Park, one of the largest in Africa.

The Kalahari is one of the most degraded desert environments in the world.100 The core of this problem is the extension of cattle grazing across the Kalahari by Tswana, Herero, and other Bantu herding cultures, not diamond mining, but this is the environment that the diamond exploration is occurring in.101 Cattle, like diamond mines, deplete scarce water resources, leaving nothing for poor people to drink. No longer can the history of indigenous people and their struggle for control of their cultures and their lands be written outside of the context of their environmental history. The Kalahari cannot remain as only national parks, grazing lands, and private estates, devoid of the peoples who have lived there since time immemorial. Genocide is the destruction of a people, of a way of life.

VII. Conclusion

What Mount Burgess and DeBeers and the other mining companies have found in its exploration of San lands in the Namibian Kalahari is not known, although, for obvious business reasons, their website claims that they have found macrodiamonds and kimberlitic garnets, “indicator mineral anomalies…in close proximity to as yet undiscovered kimberlitic sources”102 – of diamonds. The reality is a deliberately and expensively kept secret. Currently the world is experiencing a glut in the diamond market, and billions of dollars of already mined diamonds cannot be sold. DeBeers and other diamond companies have been known to “stockpile” their diamonds in the earth, that is to defer mining activity until the price rises, even for twenty or thirty years. It might well be that mines are being deferred in this way all over Namibia and Botswana. Indeed, revised mining laws have, for the first time, made this possible.103

By way of example, after almost twenty years of dispute over the removal of San from the Central Kalahari Game Preserve a few hundred San are still there, and it is still unclear whether diamonds are present under these lands. Almost the entire Reserve is under exploration licenses, which extend across most of Botswana. The Gope Mine, located 45 km inside of the eastern boundary of the reserve has not been opened, but in August 2010 the company submitted an updated environmental study to the government as part of its effort to open the mine.104 Obviously, somebody knows something about all this – but it is beyond the reach of any scholarly study.

Once a decision is made to mine diamonds in any of the San lands in Namibia, including Nyae Nyae or Caprivi, nothing in current Namibian law will stop these mines from commencing production.

Some in Namibia now assume that diamonds have been found there, but that, in the wake of the Survival International lawsuit in Botswana and the boycott against DeBeers, a decision has been made not to exploit these diamonds for some time in the hope of better political conditions. The collapse in the world's diamond market makes this also a sound business decision, something DeBeers is very good at. This further might explain why Mt. Burgess holds the EPLs, as a proxy for DeBeers, which seeks to avoid the problem it had when forced to sell the Gope Mine in the Central Kalahari Game Preserve. But this is completely speculative – unfortunately necessitated by the secrecy and dishonesty of the diamond industry.

Meanwhile, the Ju/’hoan are suffering. There is almost no development occurring in San lands. There is little money, few jobs, and children go to school hungry, when they are able to go to school at all. Nyae Nyae and the various conservancies have some potential to make money by selling hunting permits for shooting elephants and other game animals, but this is not development. The problem with all this diamond exploration is that it is, in many ways, an irrelevant distraction—a white and European distraction—that undermines the values and integrity of a black government in Namibia that is clearly trying to achieve an improved quality of life for all Namibians. How many diamond mines can there be under the Kalahari? How long will it take to sort all this out while the San languish? The process of exploration and opening up new mines could go on for decades.

And finally, while 3000 jobs in Namibia is a significant number of jobs and 60% of Namibian exports is obviously a significant contribution to the Namibian economy, it is impossible not to ask whether the artificially created demand for diamonds, as in “a diamond is forever” is worth the underlying cost to these indigenous peoples or the distortion of national development priorities? With the spread of HIV-AIDS by the mining industry, the life expectancy of Namibians and Botswanans has dropped ten years since Namibian Independence in 1990. As Botswana San Plaintiff Roy Sesana put it, “If our people need mining to live, how come we are dying?” National development requires full accommodation of the wide variety of needs of the different peoples of each country. The underlying reasoning of the UN Declaration on the Rights of Indigenous Peoples is that the indigenous peoples of the world have cultures that must be respected, by each country, for the greater good of all mankind.