By Magreth Nunuhe
Windhoek – Namibia’s President Hage Geingob has taken the bull by the horns regarding the contentious ancestral land issue. He has instructed the Attorney General to come up with draft terms of reference and proposed candidates to be appointed as commissioners by Tuesday (16 October) to scrutinise land claims that have divided the nation.
The directives from the President come shortly after Namibia’s Second National Land Conference held on 1-5 October, which saw over 800 delegates from the 14 regions in Namibia deliberate on many topics regarding land, including the legacy of land dispossession, which has prompted the need to redress inequalities and craft urgent policy interventions to eradicate the hallmarks of historical colonial injustices.
It is evident that 28 years after independence, the land question has not been adequately addressed, as those Namibians whose land was confiscated during the successive colonial regimes, first through German occupation from late 1800s to early 1900s and the subsequent South African colonial rule from 1915 to 1990, continue to demand that there is no way that the issue of dispossession of land could be addressed without identifying and acknowledging those whose ancestral land was taken away at gunpoint.
Addressing Cabinet last Wednesday on the post-mortem of the resolutions of the recently concluded Second National Land Conference, Geingob told his ministers to commence the journey of land justice with the urgency it deserves.
“In my closing remarks, which you must internalise, I made it clear that I don’t want to hear explanations as to why this or that cannot be done. I don’t want to hear about money and bureaucratic delays. The conference laid challenges bare, and also highlighted the lack of accountability, which has led to high levels of mistrust in what we, as government, are doing on the land question,” he said.
The Attorney General in consultation with the Minister in the Presidency are also to establish a Presidential Commission of Inquiry on ancestral land to survey communities, who have lost ancestral land, establish ancestral land lost and boundaries, generate common consensus on the definition of ancestral land, determine the limit of pre-independence ancestral claims, among others.
They are further expected to identify alternative restorative measure to restore social justice and ensure economic empowerment of affected communities, formulate legislation to cater for ancestral land claims and restitution, debate on ancestral land claims and restitution to be premised on human rights principles and standards guaranteed in the Namibian constitution and international and regional human rights instruments binding on Namibia.
The President was hailed for allowing debate on ancestral land at a time when the issue had almost reached a boiling point, revealing deeply rooted ethnic anger, tribal sentiments and regionalism.
Out of Namibia’s 14 regions, only three northern regions - Oshana, Oshikoto and Ohangwena rejected the notion on ancestral land claims, arguing that it would result in tribalism, regionalism or return to Bantustans.
Namibia’s Founding President Sam Nujoma echoed the sentiments of the three northern regions not to entertain ancestral land claims, but to rather amend the Constitution through a referendum so that all Namibian land including agricultural commercial land be returned to the State.
This was, however, shot down by successive speakers at the land conference, who contended that ancestral land claims were human right claims.
Sisa Namandje, a legal practitioner of the High Court and Supreme Court of Namibia, said the Herero, Nama and Damara suffered unlawful land dispossession in monumental and unmatched proportions and if their calls in respect of indigenous land claims restitution cannot be entertained due to the constitutional architecture, an amicable solution to their claims can be sought within the legislative context through alternative but equitable redress for their claims.
This, he said could be achieved, for example, by introducing factors in land resettlement laws to consider a person’s past injustices in relation to land dispossession subject to the restrictions provided for under Article 21 (2) and 22 of the Namibian Constitution.
On the other hand, Namandje said Namibians and those who lawfully reside in it have the right to move freely throughout Namibia and reside and settle in any part of Namibia as per Article 102 (5) and when read together with Article 102 (2), the delineation of the boundaries of regions and local authorities shall be geographically only without any reference to race, colour or ethnic origin of inhabitants.
Nonetheless, Namandje said the existence of traditional authorities and communities based on a particular ethnic group makes it a difficult question if considered against a unitary state and constitutional provisions aimed at unifying Namibians as one nation, which may also have an effect on the often raised question of ancestral land claims and restitution.
Adding to the debate, Dr Joseph Okpaku, a Nigerian academic based in the US, said the political power and authority to govern without control of land is at best an anomaly and at worst an oxymoron.
“This is the pedigree of the land issue in Africa, especially in Southern Africa and in particular Namibia - the separation of political power and authority from the ownership and control of land is untenable.
On 21 March 1990, Africans now controlled political power and authority but without land while whites controlled land and wealth but with no political power. Namibia’s history is one side African and the other white, making the dichotomy and tension an issue of race,” he said.
Okpaku drew some lessons from the Kenyan conflict of 2007, which had deadly consequences, saying that the issue of ancestral land is a most sensitive aspect of the land reform challenge and needs to be candidly discussed in good faith by all parties as the conflict of land ownership that was triggered by the need to redress land seizure of African land through colonial assault ended up being the source of conflict amongst Africans.
He said the challenges of land reform in Southern Africa, especially in Zimbabwe, Namibia and South Africa have a lot in common and to some extent have the same origin with the South African settler whites being the common antagonist in all cases.
“The liberation struggles in all three countries were a little more than the struggle to repossess land. After liberation, the people did not repossess what they fought for and at the end of the armed struggle, the people’s needs remained unfulfilled,” he pointed out
John Nakuta, Namibia Media Ombudsman and law lecturer at the University of Namibia argued that it was a myth that ancestral land claims could be equated to Bantustans as ancestral land predates colonialism and Bantustans.
“When they (colonisers) came here, they found our people here.
They saw land not occupied by people and said this is a res nullius (niemandsland or nobody’s land). Meanwhile, the San, the Damara, Ovaherero, Namas were already there,” he stressed.
Nakuta said he also wanted to ispel the myth that the current legal framework does not provide for the entertainment of ancestral.
“Yes, ancestral land is not expressly recognised in our Constitution, but on 26 May 2007, the African Charter on Human and Peoples' Rights (ACHPR) recognises that the right to property shall be guaranteed. It may only be encroached upon in the interest of public need or general interest of communities in accordance with the provisions of appropriate law,” he added.
He made reference to the Kenyan Ogiek tribe which took the government to court and won ancestral land case and the Kenyan government subsequently ratified the ACHPR which recognises the right to property.
“The right to property should not be seen the same way like Europeans are seeing it because Europeans see it only from an individual point of view, but the African Charter under Article 14 includes both private and collective property rights,” he explained.
Nakuta further argued that the Namibian Constitution under Article 144 says that all international agreements ratified by the government and Parliament automatically form part of the land.
He maintained that ancestral land could be argued in Namibia as it is a human right by convention under United Nations Declaration on the Rights of Indigenous People (UDRIP) Article 26 (1), which says “indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”
The second land conference resolved in full support of Namibia’s second president Hifikepunye Pohamba that the ‘Willing Buyer, Willing Seller’ principle be abolished and be replaced with alternative acquisition methods to fast-track land reform.
Okpaku stressed that the Willing Seller Willing Buyer model was very expensive for Namibia and would inevitably have a significant bearing on the country’s budget and proposed instead soft solutions - the ‘Willing Giver, Grateful Taker’ where the government does not have to find money to pay for such land, but requires honest negotiations with maximum generosity and goodwill.
Pohamba further called on Article 16 in Chapter 3 of the Constitution to be reviewed through established legal channels and procedures in order to hold a referendum that will authorise the amendment of that article.
Article 16(1) of the Namibian Constitution guarantees all persons the right to acquire, own and dispose of all forms of property in any part of Namibia.
However, Parliament is permitted to prohibit or regulate the right of foreign nationals to own or buy property in Namibia.
However, Article 16(2) gives the power to Parliament to make laws that allow the state or a lawfully established body or organ to expropriate property in the public interest on the condition that state pays what is termed “just compensation” to those affected by such an expropriation.
However, Namandje argued that “the constitutional provisions and imperatives under Article 131 prohibits any repeal or amendment of any provision of the Constitution under Chapter 3, if such a repeal or amendment diminishes or detracts from the fundamental rights and freedoms contained therein.”
He said the right to fair and reasonable administrative decisions and the right to property subject to just compensation in case of expropriation are unfortunately entrenched under Chapter 3.
“They are part of the rights that can never be touched through any amendment. However, the issues being raised by communities could be accommodated through legislation subject to the Constitution so as to address people’s longstanding cries for justice on issues of land,” he said, adding that there needs to be statutory reform with due emphasis to introducing just redress for individuals and communities that may have been subject to untold injustices particularly in land dispossessions.
The land conference resolved that foreign-owned agricultural land should be expropriated with just compensation, while all underutilised commercial land owned by Namibians are also eligible for expropriation.
Other resolutions from the conference were the implementation of the principle of ‘One Namibian, One Farm’ ration of land allocation among dispossessed communities, war veterans of the liberation struggle and their dependents who should benefit from the 70% share while 30% should be for the national pool.
There should also be a differentiation between settlement programme (land distribution to all Namibians) and resettlement programme (dispossessed communities), while ensuring the prioritisation of women, youth, war veterans, Botswana returnees and persons with disabilities.
The conference further resolved to gradually remove the veterinary cordon fence in the northern part of Namibia and make special arrangements for the procurement of northern communal farmers produce through the public procurement system.
On urban land, the conference resolved to include the right to housing as a human right in the Constitution; increase government expenditure from the current 0.1% to at least 10% of GDP; foreign investment in real estate be regulated so that no land can be sold to foreign nationals; residents with ultra-low income be fully subsidized by government through local authorities; government acquire farms adjacent to urban areas and resettle people from those towns.
The conference further resolved that 300,000 housing units be built over the next seven years, municipalities build social housing for the rental market and allow for partially serviced land (sewerage and water) to be sold.