Chapter 3 of the Constitution threat to land reform
Lovemore Mbiai once said, “Land is key to economic prosperity for all” but in Namibia, that seems to be the opposite, as land reform only appears to work at class level.
Namibia inherited an unequal pattern of resettlement at independence as a result of apartheid, thus in 1991, a National Housing Policy conference was held in an independent Namibia, to address this issue. Another land conference held in 1991 with 23 resolutions then followed with the creation of the 1992 Local Authorities Act, National Housing Enterprise in 1993, National Housing Development Act of 2000 and the revised National Housing Policy in 2004. Still, Namibians cry about the lack of access to land either for commercial or housing purposes.
Whenever talks of confiscating land comes up, institutions that continue to benefit and stand for the current status quo say, ‘Wait a minute; the Constitution protects me, you cannot touch my land’.
First of all, land is both a human and a democratic right, enshrined in the Namibian constitution, Chapter 3 on the fundamental Human Right and Freedom and Chapter 16, which stipulates the right to property.
It is useless to have many ideas to alleviate people from poor and social chaos, because as long as they do not have access to land, they have no future and will never be truly independent. We’re not talking about communal land, which has been segregated to second-class land.
Reform the system and give people land without worrying about those who will complain, saying, ‘Why give preferential treatment to others when we are all Namibians?’ Such people have complained about many things before but how could they claim to be ‘Namibians’, yet look down on their fellow citizens for too long?
Bluntly put; black Namibians have compromised for too long that macro-financial stability has dominated and only benefited one race.
It is time preferential treatment was given to the previously-disadvantaged Namibians. Remember, preferential treatment is not discrimination, exclusion is. The Constitution is very clear in taking a dim view on discrimination through Article 10 (2) while supporting preference by stipulating that nothing in Article 10 shall prevent Parliament from enacting legislation to provide, directly or indirectly, for advancement of persons within Namibia who have been socially, economically and educationally been disadvantaged by past discriminatory laws or practices or for implementation of policies and programmes aimed at redressing social, economic or education imbalances in the Namibian society arising out of past discriminatory laws or practice.
Discrimination implies specific exclusion; preference implies considering all parties but that one party may arise above another based on specific criterion. As such, to lift the majority disadvantaged from poverty, it can only come through one thing; access to land.
Majority of Namibians continue to compromise on the vision they once fought for. City of Windhoek, for instance, is indeed a city of many faces. Many people keep suffering in it while it provides land for building flats and auctioning to private investors when its indigenous inhabitants do not have access to the same.
In his book, ‘Guide To The Namibian Economy’, Robin Sherbourne says land is a form of wealth and that serious reform is needed for it. Approximately 41% of Namibian communal land, which is State-owned and leased to black Namibians and 44% considered commercial, are being operated on by individuals of Afrikaner and German decent who hold title deeds and have widely and extraordinarily benefited from the so-called ‘progressive Namibian constitution’, especially Chapter 3. One wonders, then, who really benefits from this Constitution? What’s the point of its progressiveness if it cannot re-address the challenges it had initially aimed to address after apartheid?
In an attempt to address the problem without any meaningful action, two major pieces of legislation were passed; the Land Reform Act 1995 and Communal Land Reform of 2002. In terms of legislation, these have had an impact in theory but in practice, nothing has been achieved. Communal land beyond the so-called ‘red line’ still has no collateral value, compared to the other side of the line.
Some progress have been made, though. The National Resettlement Policy was created to tackle poverty by resettling the landless, poor Namibians on commercial farms bought by Government at so-called ‘free market prices’ and made available to them under a 99-year-old lease. However, settling these farm workers on these farms again creates poverty, as the unemployed are unable to sustain them, because they lack the adequate support for survival while others have resorted to selling the animals given to them.
Expropriation of commercial land in accordance with the law and market-related compensation, has been one of the possibilities. But this has been a tough task, because the policy of the willing buyer - willing seller has failed. The challenge is; Chapter 3 of the Namibian constitution on fundamental rights and freedom guarantees a right to property, yet it also guarantees a right to private property and this cannot be changed even by 2/3 majority in Parliament.
There have been many Government programmes established to re-address the land issue. There have been a few success stories but in total evaluation, challenges remain. The National Resettlement Policy has left a lot to be desired. The Affirmative Action Loan Scheme(AALS) policies designed from the national conference on land in 1991 was designed to complement Government’s resettlement programmes. That too has failed, with Members of our Parliament accused of being its only beneficiaries.
Land Acquisition Development Fund (LADF) created in 2003 has also failed to re-address land redistribution. By 2009, there was N$85m from the national budget and land tax. To date, we are yet to redistribute land to those who needs it the most.
Swapo Party Congress once approximated that 192 farms were owned by absent landlords who continued to own vast amounts of land while hiding behind the famous Chapter 3 of the Constitution. There is also a need to revisit the arbitrary inflated prices and find ways to regulate the unavailability of productive land.
Land ownership should no longer be a one-race affair at the expense of the entire population. Note, however, constitutional rights are not privileges but are inherent and God-given. Otherwise, expropriation is the way to go. As the Namibian Agricultural Union motto says: ‘Uit Die Land Kom Die Lewe (For life comes out of land)’.