Like the Freedom Charter before it, our Constitution commences with the words “We, the people of South Africa.” The Charter spoke for everyone who actively opposed the apartheid regime. The Constitution is a compromise. It speaks for both adversaries in the Struggle. It reflects the power of respective interests at the negotiating table. The Khoisan people, who had been robbed of their identity and subjected to cultural genocide by colonialism and the apartheid regime, were not invited to CODESA. Consequently they could not free their potential as the preamble to the Constitution promised.

Like other African communities the Khoisan were indigenous people in this region.  It can hardly be disputed that they were here first.  In 1770 the Dutch declared them to be vermin. They were hunted accordingly. Dutch and English proclamations provided for confiscation of the land which they inhabited.  They regarded this as a spiritual home, a venerable, ancestral sacred heritage passed on by their ancestors. Their land was given to the Boers. Khoisan survivors were herded onto farms.

It was an offence for them not to work there. Their language, culture and religion were prohibited. Their teeth were extracted and their lower lips mutilated to prevent them speaking their ancient languages. As they were “members of an aboriginal race and tribes in Africa” they fell within the definition of a “Black group” under the Group Areas Act; but the colour coded consciousness of apartheid imposed their classification as “Coloured”. They were forced to adopt Afrikaans as their primary language. Their identity was usurped.

Criteria set by the International Court of Justice in the Kosovo case render the surviving Khoisan a people having the right of self-determination. This right is binding on all members of the United Nations.  Our Constitution reserves the right to “the South African people as a whole”.  Within this framework, communities sharing a common cultural and language heritage within a territorial entity in the Republic may be afforded recognition of a notion of self-determination.  So far the Khoisan have been denied due recognition.

Their language was recognised, but is not an official language like the languages of other indigenous African communities. Recognition of traditional leaders under Chapter 12 was not applied to the Khoisan.  Nor were they entitled to restitution of land from which they had been dispossessed, or to equitable redress, because the cut-off date (19 June 1913) is the date of the commencement of the Native Land Act.

This is well after the period of their dispossession. Their constitutional rights not to be assimilated and to take control of their own lives and future care have not been afforded to them. The State has failed to respect the spiritual values of their relationship to their land. The Traditional and Khoisan Leadership Bill currently before Parliament falls far short of proper recognition of their right to self-determination. The Bill adopts rigid colonially constructed identities.  It reflects apartheid.  Its membership criteria for Khoisan are contrary to the rights of indigenous communities articulated in the UN Declaration of the Rights of Indigenous People (“UNDRIP”). South Africa and 142 other countries voted for this Declaration.

Liberators of a nation living with a past mindset can easily become the oppressor. As President of the US, Theodore Roosevelt became a driving force for the Progressive Era.  Yet he propagated a view, which was generally held in his country until after World War II, that the rout of indigenous Indians was a triumph of civilisation over savagery.  A century after his Presidency, the US – after initially voting against UNDRIP – switched its position and accepted its responsibility. We the people of South Africa should not allow the mind set of colonialism and apartheid to write the Khoisan out of existence. South Africa cannot seriously proclaim that its people are equal if its stops short of allowing some of them to be the people they are.

Michael Donen SC is an advocate at the Cape Bar and a listed counsel of the International Criminal Court.

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