“Bushmen” in the Law: Evidence and Identity in Botswana's High Court

Abstract

This article, based on ethnography and analysis of court transcripts, considers the case that a group of San and Bakgalagadi brought against the government of Botswana to the country's High Court. The proceedings and judgment in the case illustrate the ways that court process gives life to legal categories. This is particularly clear in the evidence filed in defense of indigenous rights because the knowledge and experience of collective claimants is often at odds with the premises and power structures of state courts. Evidence and expertise are brought to bear as ways to lend authority to the facts that make up an argument. Several key concepts were discussed in court, notably those of “applicants,” “Bushmen,” and “native title,” each of which had important consequences for the claimants. Following the lives of the legal categories from observations within the courtroom itself, to their lasting influence on the applicants to this day, this article illustrates the durability and political significance of the concepts and categories elaborated in the verdict.