Legal Assistance Center

The Legal Assistance Center (LAC) located in Windhoek is dealing with various issues related to the protection of human rights. Direct reference is made to the Namibian constitution, which provides for the protection of fundamental human rights and freedoms. The work of the LAC includes the litigation of public interest cases, providing legal information and advice to the public, organizing workshops in communities and conducting research on how to best implement new laws. The LAC is funded by national and international donors as well as by private actors. Especially disadvantaged groups of society are supported by the LAC. Provided that the case is of public interest all services are for free.

During our stay in Windhoek we met Willem Odendaal, coordinator of the Land, Environment and Development Project (LEAD). During our talk we focused on the legal aspects in support of sustainable resource use in Namibia. We addressed issues related to the land reform, land grabbing and communal land rights. However, according to Willem sustainable resource utilization can be a great challenge as „sometimes sustainable development is a contradiction, because whenever you are going to develop something you won’t leave it in the state how it was“.

One highly debated issue in Namibia is the land reform. According to Willem „Land is so important to some people in the country: You want your piece of land. But when you have your piece of land what do you do with this piece of land?“. After independence most land in Namibia was held in the hand of white people who had benefited from colonialism and segregation policies. Since then a redistribution process has been established based on the argument that black people have the right to obtain land in order to revert the uneven distribution in land. The “willing-buyer-willing-seller“ process has been supported: a farmer who wants to sell land is required first to offer it to the state. The acquired land is then used for resettlement purposes. The state is providing loans to promote the redistribution process, so called affirmative action loans. However, the redistribution process is rather slow. The 2005 target was to provide for 15 million ha of land for black people. By 2013 only half had become materialized. This situation is even exaggerated because land prices both in rural and urban areas have increased during the last decade.

Besides re-distributional aspects, furthermore, the utilization of the land needs to be considered. According to Willem „The issue is not so much of getting land, acquiring land from white hand and give it to black hands (…). The problem is what do you do after people got their land? You have people with very little experience in farming, very little support in terms of financial institutions. [They] need infrastructure, water points, transport, a feeling for markets, where to sell, how to farm sustainably“. There is a need for governmental support for resettlement farmers, e.g. extension services and workshops. This is especially pronounced as farming in Namibia is not easy: farming activities are characterized by a high degree of uncertainty, e.g. droughts and floods.

The debate on land reform in Namibia can be summarized as follows: expropriation is seen as a fundamental criteria to ensure that more land is channeled towards disadvantageous groups. But economic achievements may be limited especially in the face of limited skills among resettlement farmers. According to Willem in order to secure both political stability and economic growth a combined approach on agriculture and economy is required.

Another issue dealt with at the LAC are communal land rights. According to Willem besides promoting access to commercial land communal land rights, e.g. government certificates and lease right, need to be strengthened. For example, this may include the formal acknowledgment of customary rights. Provided that these are not in conflict with the constitutional principles, statuary rights in the sense of an unwritten law can be very effective when used in a local set-up as people understand what the custom is. Willem describes the procedure as follows „When you have a dispute you can go to the headmen, the traditional authorities interpret the law for you and when you are not happy appeal to a higher court“.

Communal land rights are regulated under the „Communal Land Reform Act (2002). However, one major problem on communal land is the situation that only limited mechanism are in place to exclude others not entitled from using the resource. For example, this becomes relevant in the case of land grabbing. This means that people start fencing up communal areas, e.g. grazing areas and water holes. This is usually at the expense of local subsistence farmer. In the situation that a communal land claim is held, traditional authorities are entitled to have these fences removed.

In summary, Willem points out that customary rights should not be perceived as static, in contrast customary law develops as a specific community changes its needs. Therefore, it is frequently referred to as „the living law“. The major advantage is that customary are cheap measures to deal with conflicts. However, at times customary rights may be inefficient, e.g. in the situation that traditional authorities are bribed.

The Community Based Natural Resource Program (CBNRP) are part of the governments effort to promote sustainable development in Namibia. This is done by a combined approach on nature conservation and poverty alleviation. For example, in conservancies local communities receive direct benefits from the commercial use of the environment. This may include cash income, e.g. by providing tourist activities, or non-monetary benefits, e.g. meat consumption. However, the commercial use of biodiversity is not without debate in Namibia. For example, after being re-introduced in national parks and conservancies, hunting permits have been issued even for crucially endangered species like the black rhino. The argument is that by selling hunting permits sufficient benefits are generated to provide for conservation efforts. But according to Willem this is rather cynical as „you cannot conserve animals by killing them“.

In summary, despite efforts being made to promote environmental protection in Namibia, according to Willem the major problem is still that „legislation is not fully geared to protect the environment in an appropriate way“.