Land, Environment and Development Project
LEGAL ASSISTANCE CENTRE
2020
Indigeneity, marginalisation and
land rights in post-independence Namibia
Edited by
Willem Odendaal and Wolfgang Werner
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Land, Environment and Development Project
LEGAL ASSISTANCE CENTRE
Windhoek
Republic of Namibia
2020
Edited by
Willem Odendaal and Wolfgang Werner
Indigeneity, marginalisation and
land rights in post-independence Namibia
Neither here nor there
© Land, Environment and Development Project, Legal Assistance Centre, 2020
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system or database or transmitted in any form or by
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without the prior written permission of the copyright holder.
First printed in April 2020
Printed by John Meinert Printing (Pty) Ltd in Windhoek, Namibia
Language editing: William Hofmeyr
Design and layout: Perri Caplan
Cover photo:
Farm road near Koës in southern Namibia, by Margaret Courtney-Clarke
ISBN 978-99945-61-58-2
PUBLISHERS CONTACT DETAILS
Legal Assistance Centre
4 Marien Ngouabi Street, Windhoek
P.O. Box 604, Windhoek, Namibia
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Email: info@lac.org.na
Website: www.lac.org.na
A digital version (pdf) of this publication is available on the LAC website.
Contents
"
Contents " i
Acknowledgements ............................................................................................................................................ iii
Namibias administrative regions (map) ................................................................................................ iv
Introduction ........................................................................................................................................................ 1
1 Land reform in Namibia: Beyond 2018
Samuel Kwesi Amoo .............................................................................................................................. 13
2 The economic viability of emerging commercial
farmers under the resettlement programme
Selma Lendelvo, Martin Shapi and Clever Mapaure ....................................................... 35
3 The legacy of Namibias landless generational
farm-working community
James Suzman ........................................................................................................................................... 51
4 Urban land and life in Namibias informal settlements
Rune Larsen and Gabriel Augustus ............................................................................................ 69
5 From colonial land dispossession to the Etosha and
Mangetti West land claim Hai||om struggles
in independent Namibia
Ute Dieckmann ......................................................................................................................................... 95
6 Recognition of ancestral land claims for indigenous
peoples and marginalised communities in Namibia:
A case study of the Hai||om litigation
Willem Odendaal, Jeremie Gilbert and Saskia Vermeylen ...................................... 121
ii " Neither here nor there: Indigeneity, marginalisation and land rights in post-independence Namibia
7 Ancestral land claims:
Why bygones cant be bygones
John B. Nakuta ........................................................................................................................................ 143
8 The fencing question in Namibia:
A case study in Omusati Region
Rose-Mary Popyeni Kashululu and Paul Hebinck .......................................................... 163
9 Land and resource rights in the Tsumkwe Conservancies
Nyae Nyae and N!a Jaqna
Jennifer Hays and Robert Hitchcock ....................................................................................... 183
10 Access to land and security of tenure for the San people
in Namibia: the case of Okongo Constituency,
Ohangwena Region
Romie Nghitevelekwa, Fenny Nakanyete and Selma Lendelvo .......................... 215
11 Land and resource rights of the Khwe in
Bwabwata National Park
Gertrud Boden ........................................................................................................................................ 229
12 Land, resource and governance conflicts in
Kunene Region involving conservancies
Wolfgang Werner .................................................................................................................................. 255
13 Understanding Damara / !Nkkhoen and ||Ubun
indigeneity and marginalisation in Namibia
Sian Sullivan and Welhemina Suro Ganuses ..................................................................... 283
14 San land rights in Namibia:
Current national processes and community priorities
Ben Begbie-Clench and Noelia Gravotta ............................................................................. 325
Bibliography .................................................................................................................................................. 355
In September 2018 the Legal Assistance Centre (LAC) received a research grant from the United States Department of State, the purpose of which was to support
the LAC to develop a series of concept chapters, with a comprehensive and updated
examination of the land rights of indigenous and marginalised communities in
Namibia.
This grant could not have come at a more opportune moment. Firstly, 2018
marked the 21st birthday of the LACs Land, Environment and Development Project
(LEAD). Since its inception, LEAD has supported the land and natural resource
rights of Namibias indigenous and marginalised communities through legal advice
and representation, research, advocacy, capacity building and litigation. Thus,
the LAC as a public interest law firm is well placed to evaluate the current state of
Namibias indigenous and marginalised communities land rights.
Secondly, the Second National Land Conference was scheduled to take place in
October 2018, hence the LACs intention was to produce a publication that would
help to maintain the momentum generated by the conference discussions. Specific
resolutions were taken at the end of the conference, to which policy makers are
compelled to give effect. We are hopeful that this publication will be of use to those
tasked with the implementation of the 2018 Land Conference resolutions.
Apart from thanking the United States of Americas Embassy in Namibia for
facilitating the grant, we acknowledge with appreciation the following government
entities and individuals who have contributed to this study:
We thank the Ministry of Land Reform (MLR) and the Office of the Vice President,
Division of Marginalised Communities who assisted us with organising community
field visits.
A special thank you goes to all the authors for their respective contributions to
this publication, the communities who participated in interviews and meetings
with the authors, William Hofmeyr for doing the language editing, Undine Winkels
for regularising the bibliographies of all the chapters, Margaret Courtney-Clarke
for providing the cover photo for the publication, and Perri Caplan for the layout of
this publication.
Last, but not least, we want to thank our colleagues at the LAC who have lent a
hand in making this publication possible.
Willem Odendaal and Wolfgang Werner
Editors
Acknowledgements
"
Acknowledgements " iii
iv " Neither here nor there: Indigeneity, marginalisation and land rights in post-independence Namibia
SOUTH AFRICA
BOTSWANA
ATLANTIC OCEAN
ANGOLA ZAMBIA
Otjozondjupa
Oshikoto
O
shana
Kavango
West
Zamb
ezi
Kunene
Omaheke
Omusati
Ohangwena
Kavango
East
Erongo
||Kharas
Khomas
l Windhoek
Hardap
Namibias administrative regions
V (Jffil__J r
Introduction " 1
The selection of chapter themes for this publication was guided mainly by the deliberations that took place during the Second National Land Conference in
October 2018.
Against the background of the skewed land tenure system Namibia inherited
at the time of independence, Samuel Amoos chapter, Land reform in Namibia:
Beyond 2018, focuses on the policies and legislation the Government of the
Republic of Namibia (GRN) adopted and promulgated in order to address the land
question in the country. Amoo shows that for decades after independence, the land
question in Namibia has remained an issue of national concern, and that many
issues related to land rights were addressed at the Second National Land Conference.
This chapter illustrates the processes of land reform since independence,
including the reform of agricultural commercial land, the reform of tenure rights
in communal land areas, and urban land reform.
The chapter states that land reform is a complex undertaking, and argues that
its effective and successful implementation requires more than the existence of an
enabling legal regime. In addition, Amoo argues that it requires a healthy economic
environment that is capable of providing the requisite fiscal cushioning and integrity
for the GRN to execute a meaningful land reform programme, and that it further
requires the cooperation, commitment and partnership of the public and private
sectors alike.
The chapter of Selma Lendelvo, Martin Shapi and Clever Mapaure, The
economic viability of commercial farms under the governments resettlement
programme, outlines the long history of land issues in Namibia, and how the
GRN approached the skewed land ownership regime by introducing the Land
Reform Programme after independence. It focuses on the different policies and
programmes implemented by the GRN in order to ensure fair land distribution
among all Namibians and the integration of previously disadvantaged Namibians
into the mainstream of the countrys economy.
The chapter points to the National Resettlement Policy, the Agricultural
(Commercial) Land Reform Act (No. 6 of 1995), and the Communal Land Reform
Act (No. 5 of 2002), as the key instruments that guide land reform in the country,
particularly concerning the acquisition of farmland for redistribution purposes.
The chapter seeks to document factors influencing the economic viability of the
resettlement programme in Namibia by analysing both the ability of leasehold
agreements granted to resettlement beneficiaries by the MLR to attract investment
Introduction
"
2 " Neither here nor there: Indigeneity, marginalisation and land rights in post-independence Namibia
and subsequently trigger agricultural productivity, and the impact of other
promoters contributing to this output. It concludes that although there is little
evidence that land tenure security attained through the registration of leases has
the potential to contribute to the economic viability of farmers, there is evidence
that the current state of affairs, with the majority of beneficiaries farming without
lease agreements, runs counter to commercial farming philosophies and is likely to
have undesired impacts on the future of resettlement farms. It argues that the slow
pace at which land rights are being secured among resettled farmers through the
registration of leasehold agreements with the Deeds Office prevents farmers from
accessing credit and making the investment in their farming operations that could
improve their productivity.
The chapter reveals the high farm-related expenditure that must be borne
by farmers, underlining the need for them to access credit to succeed in their
operations. Farmers with a stable source of off-farm income are more likely to invest
in their farming operations, contributing to better returns. The authors argue that
this reality indicates that the goal of creating employment and alleviating poverty
by enabling the majority of resettlement beneficiaries to become full-time farmers
is still a long way from being attained.
In his chapter, The legacy of Namibias landless generational farm-working
community, James Suzman provides an historical background of the issues now
facing the generational farmers, people mostly from minority language communities
that have worked on farms over multiple generations and consequently have no
access to land elsewhere. This growing demographic group accounts for a significant
proportion of the in-migration of unskilled and unemployed people into informal
settlements on the fringes of Namibias towns and villages. Suzman argues for
the recognition of this group as an apartheid legacy population that should be
prioritised in land resettlement and provided extensive support as they adjust to
life in peri-urban settlements.
The chapter states that since 1991, there has been a clear failure to translate often
well-intentioned policy into effective practice in respect of generational farmworkers.
Suzman refers to the resolutions passed at the Second National Land Conference in
2018 that aim to ameliorate farmworkers lives and working conditions. However,
as Suzman argues, there are now very few among the generational farm-working
community who are still employed on Namibias commercial farms. The resolutions
do not apply to these unemployed and landless generational farmworkers and do
not provide a remedy to the fact that they form an apartheid legacy community.
Suzman suggests that beyond establishing protections and access rights for
generational farmworkers in line with the resolutions at the Second National
Land Conference, Namibia is obliged to ensure that any individuals involuntarily
displaced by GRN programmes are immediately resettled and compensated on the
basis of an appropriate resettlement action plan that seeks to secure their free prior
and informed consent. To the extent that there simply arent the resources or land
Introduction " 3
to sustainably resettle all generational farmworkers, priority must also be given to
initiatives to help them adjust to life in peri-urban settlements.
The chapter Urban Land and Life in Namibias Informal Settlements by
Rune Larsen and Gabriel Augustus deals with Namibias urban land and housing
issues highlighted by the increasing number of informal settlements across the
country. It aims to present a new perspective on these issues by describing life
in these informal settlements as presented by residents of the three urban/semi-
urban areas adjoining Oshakati, Gobabis and Windhoek. By drawing on the voices
of the often-neglected residents of the informal settlements, the chapter aims to
provide background and context for the discussion on current public and academic
perspectives on Namibias urban land and housing issues and projects.
By visiting the settlements in the abovementioned places and conducting
interviews with individual residents, the authors highlight the residents concerns
arising from their daily experiences. The absence of basic services, direct experience
of crime and violence, longing for space and ownership and mistrust of authorities
were prevalent amongst the issues raised by the interviewees.
On the basis of the interviews the authors establish that there is a disconnect
between the concern of the informal settlement residents and the GRNs initiatives
to solve housing and land issues stemming from miscommunication and the
perception of exclusion, which in turn leads to the residents obstructing the
implementation of GRN resolutions.
The chapter also draws attention to the apartheid sedimentation that charac terises
the phenomenon of informal settlements in present-day Namibia and argues that a
reconfiguration of the approaches towards urban land and housing is imperative.
The chapter presents the central resolutions made during the Second Land
Conference in 2018 and highlights the difficulties of reconfiguring the way in which
urban land is being dealt with in Namibia. It shows that there are many points of
contestation on the issue of urban land rights and uncertainties concerning the
implementation of the abovementioned resolutions. While the chapter does not
propose a solution to the issues concerning urban land rights, it argues that including
the residents perspective in the process of seeking solutions is imperative. The
chapter concludes that, since the residents are most affected by any implementation
of policy, their perspectives should inform policy formulation and collaboration
between authorities and residents, and should be key in development and practical
servicing in the areas they live in.
Ute Dieckmanns chapter, From colonial land dispossession to the Etosha
and Mangetti West land claim Hai||om struggles in independent Namibia,
deals with the history of colonial land dispossession as well as the current state
of land rights issues with regard to the Hai||om people. The land south of Etosha
National Park (ENP) was increasingly occupied by white settlers during the first
half of the 20th century, and the Hai||om were evicted from ENP in the 1950s
without any consultation. At the time of Namibias independence in 1990, and in
4 " Neither here nor there: Indigeneity, marginalisation and land rights in post-independence Namibia
contrast to other ethnic groups in Namibia, the Hai||om found themselves to be
altogether dispossessed of their land, with no access to communal land. That is the
reason why neither traditional livelihood strategies (hunting and gathering) nor
agriculture can play a significant role in sustaining the Hai||om peoples livelihoods.
Formal employment opportunities are rare, and dependence on welfare support
provided by the state is high, while educational levels among the Hai||om are
generally low.
Around 2007, the GRN commenced with some efforts to compensate Hai||om
for the loss of their land during colonial times by purchasing a number of farms for
them in the vicinity of ENP and offering them relocations. This chapter explains that
the Hai||om were dissatisfied with this approach because it lacked actual access to
the park, thereby ignoring the Hai||oms spiritual connection to the land and failing
to enable them to sustain their livelihoods. This resulted in the Hai||om launching
a legal claim to the ENP and Mangetti West areas. In this context, the chapter
highlights the issue of representation of ethnic minorities in negotiations and legal
process with the GRN. In this regard, the most powerful institutions are currently
the traditional authorities, provided for by the Traditional Authorities Act (No. 25
of 2000). However, the Traditional Authorities Act in essence applies the traditional
system of Oshiwambo-speaking groups as a model, which is characterised by a
hierarchical authority structure with a single representative leader for a large group.
This model is not universally applicable, and is not a good fit for San groups in
the country. The chapter concludes that the traditional authority is not the right
institution to represent San communities because they are traditionally organised
in an egalitarian way, without a single traditional leader. Dieckmann therefore
argues for an amendment of existing legislation in order to accommodate the
leadership structures of communities such as the San.
The chapter of Willem Odendaal, Jeremie Gilbert and Saskia Vermeylen,
Recognition of ancestral land claims for indigenous peoples and marginalised
communities in Namibia: A case study of the Hai||om litigation, is closely
related to the chapter of Ute Dieckmann. In this chapter, the broader focus is on the
international case studies of indigenous peoples and marginalised communities
claims to ancestral land rights. This is brought into the specific context of the
Namibian case of the Hai||om peoples recent court battles seeking a legal remedy for
the dispossession of their ancestral land in ENP that took place in the 1950s.
The chapter demonstrates how bringing ancestral land rights claims in front of
a court of law can be a means to enforce the rights of indigenous peoples and shed
light on the different issues these communities face after being removed from their
ancestral lands.
Until the Etosha case, Namibian courts have not previously considered the
rights of indigenous people to the restoration of their rights in land, nor have they
considered how an indigenous people should be represented in litigation. It is still
unclear which law applies and what the content of the development should be, and
Introduction " 5
it is uncertain whether the Hai||om people have a potentially tenable claim for the
return of their land, or compensation for its loss.
As the ancestral land claim is new in Namibian law, the chapter depicts different
precedents in comparative international law to establish the rights of indigenous
peoples to their ancient land. On the basis of precedents in other countries, the
chapter highlights how litigation could allow the Hai||om people to assert the
importance of their ancestral rights with regard to cultural survival as well as to
obtain recognition with regard to their ancestral connection to ENP as an indigenous
people. The authors conclude that asserting their ancestral rights through a court of
law is thus important not only for their cultural rights, but also in terms of their right
to development, allowing them to be part of the GRNs decision-making structure
vis-à-vis nationally important economic activities centred on tourism and wildlife.
The authors of this chapter argue that the case put forward by the Hai||om is not
only important for them, but for the whole country, as it will define the way claims
to ancestral land rights could be approached in future, and how Namibia should
integrate the rights of its indigenous and marginalised communities in the legal
framework of the country.
John Nakutas chapter, Ancestral land claims: Why bygones cant be
bygones &, deals with the question of how best to handle land right claims from
communities who during Namibias colonial and apartheid occupation were forcibly
and arbitrarily deprived of the lands, territories and resources they traditionally
occupied. Nakuta argues that calls for restoration cannot be equated with notions
of apportioning blame and/or exacting punishment, but much rather emanate from
the inalienable right to an effective remedy for victims of human rights violations
as guaranteed in numerous human rights instruments.
The primary contention of the chapter is that the dispossession of indigenous
communities of their ancestral lands during colonial times constituted a gross
human rights violation.
The chapter begins by highlighting the reality of land dispossession as it occurred
in Namibia. It explains the racist and discredited doctrine of terra nullius which
formed the basis of land dispossession at the advent of colonialism. It then proceeds
to argue for the development and invocation of aboriginal title in the Namibian legal
system to repair historical land injustices.
It then considers the ground-breaking jurisprudential work of the African
Commission of Human and Peoples Rights, the African Court on Humans and
Peoples Rights, the Inter-American Commission on Human Rights, and the
Inter-American Court of Human Rights, namely the evolutionary and expansive
interpretation they adopted to the concept of property rights with a view to
obtaining land justice for indigenous communities/populations. This is juxtaposed
against the overly cautious approach followed by Namibias Superior Courts when
it comes to historical land injustice issues. The chapter provides the example of
the Tsumib v Government of the Republic of Namibia case (see Dieckmanns and
6 " Neither here nor there: Indigeneity, marginalisation and land rights in post-independence Namibia
Odendaal et al.s chapters), in which members from the Hai||om community sought
permission from the court to be allowed to take legal action as representatives of
their community to reclaim their ancestral lands. This case was dismissed without
the court considering the merits thereof.
In light of the Tsumib case, Nakuta makes the point that litigation is a less than
ideal vehicle for redressing claims for historical land injustices. In this regard,
Namibias narrow and exclusive rules on locus standi, as well as the adversarial
nature of litigation, are flagged as the major hurdles for seeking reparation in the
courts. As an alternative, land restitution models from South Africa, achieved
through mediation and negotiations, are presented as the kind of administrative
reparation programmes Namibia should begin to consider.
The last part of the chapter warns against the danger of relegating legitimate
ancestral claims to frivolous phrases such Let bygones be bygones. It is argued
that such an attitude and approach to something so fundamental runs the risk of
being hijacked for political ends.
In their chapter, The fencing issue in Namibia: a case study in Omusati
Region, Rose-Mary Kashululu and Paul Hebinck discuss the theory of legal
and illegal fencing in Omusati Region, presenting recent data on fencing and
the results of their own fieldwork. They explain how fencing generates problems
with development as well as with access and rights to land. The authors argue that
identifying fencing as part of the series of development issues and making fencing a
central component of the analysis allows them to generate a series of key questions,
such as who fences and for what purpose; who benefits most and who is losing out;
and perhaps more importantly, what is the social and material effect of fencing
and thereby (re)ordering communal areas? The chapter focuses on what fencing
does to property and property relations, on processes related to exclusion and
the future of the commons in Namibia, and on how the struggle to remove fences
is organised.
The authors state that the fencing problem has multiple dimensions. They argue
that it embodies the problem of overlapping and conflicting spheres of authority,
power relations and the capture of resources by elites, and multiple legal contexts in
the communal areas. These are the by-products of the creation of new institutions
following the decentralisation of resource management after independence to local
and regional institutions such as the communal land boards, traditional authorities
and regional MLR offices, but also of a private business network strategically
associating itself with the state.
They conclude that the conflict that fences generate is at least evidence of the
uncertain future of the communal lands; such conflict raises the question of whether
they should be managed collectively or privately for purposes of production, grazing
and conservation. It may also be that a combination of collective and private
management defines the future of the communal lands, although such systems are
not always easily combined.
Introduction " 7
The chapter of Jennifer Hays and Robert Hitchcock, Land and resource rights
in the Tsumkwe Conservancies Nyae Nyae and N!a Jaqna, focuses on the
issues the indigenous San communities in these conservancies are facing, especially
concerning rights to land and resources. Tsumkwe Constituency, situated in what
is today Otjozondjupa Region, has the highest concentration of San in Namibia.
The authors of this chapter point out that the concept of indigenous rights is
not about special rights for some communities but about ensuring that the most
marginalised peoples in the country have their human rights respected. They
emphasise that even though these San conservancies are the best scenarios for
marginalised groups in southern Africa, they still constantly have to defend their
land against external groups who are stronger, have more resources, and engage in
more intensive land use strategies.
Using the example of the two conservancies in Tsumkwe Constituency, the
authors outline critical issues concerning all San groups in Namibia. With a focus
on the preservation of the traditional lifestyle of San groups and respect of their
ancestral rights, the chapter draws five conclusions: First, hunting and gathering
should be recognised and respected as a legitimate form of land use, and one that
furthermore might be beneficial to the society as a whole. Secondly, the subsistence
and land rights of one ethnic group in Namibia should not be held up against the
rights of another ethnic group that has also been historically marginalised. Thirdly, it
is important to recognise that the San communities are made up of individuals and to
take their individual perspectives into consideration while simultaneously allowing
for the general aim of the maintenance of traditional subsistence practices. Fourthly,
the authors emphasise that the political will of the GRN in upholding its own laws and
court judgments is crucial to securing the land rights of the two San communities.
And finally, despite all the setbacks and violations that are still occurring, it is crucial
to look at the way that San groups are actively negotiating their circumstances,
especially with respect to land and resources, because the San of Nyae Nyae, in
particular, have had a significant measure of success in negotiating their rights.
The authors argue that the focus should be on carefully protecting and enforcing
the land rights of San groups as they are defined in national and international law,
with the goal of making Nyae Nyae and N!a Jaqna positive models of what could be
possible elsewhere.
In their chapter, Access to land and security of tenure for the San people
in Namibia: the case of Okongo Constituency in Ohangwena Region, Romie
Nghitevelekwa, Fenny Nakanyete and Selma Lendelvo analyse security of tenure
within the context of the ongoing registration and statutory recognition of land rights
in Namibias communal areas, to determine their applicability to the customary
tenure system of San people. Before the in-migration and settlement of the Bantu
groups, San people were spread out over most of modern-day Namibia, living a
highly mobile life of hunting and gathering. Their customary tenure is based on land
as a common property or a common-pool resource with open access. However, the
8 " Neither here nor there: Indigeneity, marginalisation and land rights in post-independence Namibia
chapter suggests that the Sans lifestyle is critically hampered by individualisation
and fencing-off of land by sedentary agriculturalists. It has left the San people on the
margins, with their access to land becoming ever-more precarious.
In 2002, Namibia passed the Communal Land Reform Act (CLRA), which came
into force in March 2003. The CLRA provides for the registration and statutory
recognition of land rights on communal land in order to give the legal security of
land tenure which has long been denied. However, while the model adopted by the
CLRA and ultimately the Land Rights Registration Programme protects and secures
the rights of certain social groups, particularly women in Namibia, it does not give
special consideration to other social groups, in particular San people.
With the shortcomings identified in communal land reform and the securing
of tenure, the authors state that community-based natural resources management
(CBNRM) provides a possible window of opportunity through which San peoples
land tenure can be maintained. CBNRM is a programme established in the 1990s
as part of the GRNs efforts to promote conservation and the sustainable utilisation
and management of Namibias resources. The authors argue that community-based
organisations in the forms of community forests and communal conservancies
are the only avenues through which the rights of groups of people to common
pool resources can be secured. Through community forests and communal
conservancies, the GRN devolves management and use rights to communities with
the end goal of sustainable management. The authors argue that as there are still
regulations contradicting the very purpose of these community-based institutions,
it is important that all management communities of community forests and
communal conservancies are sensitised about the basic needs of San people and
alerted to the fact that their respective regulations should take these needs into
consideration.
The conclusion is therefore that the MLR, through the communal land boards,
should consider protecting and securing land rights beyond individual land rights,
and include forest-based or common-pool resources rights.
In her chapter, Land and resource rights of the Khwe in Bwabwata National
Park, Gertrud Boden discusses the land rights situation of the Khwe, an indigenous
and disadvantaged San group in Namibia that live in the main part of Bwabwata
National Park (BNP). Boden describes how the Khwe have lost control over land
and livelihood opportunities since 1890, and particularly since the 1960s. The aim of
the chapter is to raise awareness regarding the particular land rights and livelihood
situation of the Khwe as residents of a national park and people without a political
leadership recognised by the GRN.
Although the Khwe in BNP were not expelled from their ancestral land in colonial
times, they are collectively disadvantaged with respect to land rights as they have
been and remain dispossessed of the self-determined use of their land. The chapter
describes the nature of such land rights during precolonial times and how they were
lost in the course of Namibias colonial and postcolonial history. The chapter goes
Introduction " 9
on to portray the current land and resource rights situation of the Khwe people and
its consequences for their livelihoods. For the Khwe in BNP, the deprivation of land
and resource rights did not stop with Namibian independence. Instead, the Khwe
in BNP have experienced an increasing influx of non-San persons seeking land for
settlement, grazing and crop production on Khwe ancestral land. The access to and
use of the natural wealth of Khwe ancestral lands are increasingly restricted for the
original inhabitants, while other people, recent settlers in BNP as well as people
living outside the park, are permitted to benefit from them.
The chapter sheds light on the issue that to date, the Khwe are the sole Namibian
San community without GRN recognition for their traditional authority.
Finally, Boden makes recommendations by referring to the relevant resolutions
of the Second Namibian Land Conference held in October 2018. She suggests that
communal property rights over BNP should be established and that the Khwe
Traditional Authority should be recognised as a legal body for self-determination. If
this were to be done, together with developing tourism infrastructure and creating
job opportunities in the park, all relevant resolutions of the Land Conference would
be satisfied.
In Land, resource and governance conflicts in Kunene Region involving
conservancies, Wolfgang Werner focuses on the uncertainties concerning
legitimate access and rights to land in Kunene Region, the former Kaokoland.
Against the background of a survey carried out in preparation for the Second Land
Conference in 2018, Werner discusses issues concerning unrecognised traditional
authorities and the absence of clear areas of jurisdiction, access to the communal
areas of Kunene Region, wildlife management, transhumance, and mining and land
rights in a broader historical context. The chapter shows that the recognition of
traditional leaders has long colonial antecedents that an independent Namibian
government has uncritically adopted. Werner also argues that the issues identified
by communities in 2019 are largely the result of the current policy and legal
framework dealing with traditional leaders and land administration, which fail to
recognise and build on local customs and practices with regard to tenure systems
and land administration. The chapter shows that there is mounting evidence that
the provisions of the CLRA and the Traditional Authorities Act are increasing land
disputes and social tensions in Kunene Region primarily as a result of the non-
recognition of traditional leaders, despite the fact that most of them enjoy local
legitimacy. Werner argues that a fundamental flaw in the CLRA is that it offers a one-
size-fits-all framework for very different tenure situations in Namibias communal
areas. The Act fails to recognise local customs and practices and is therefore
inappropriate in Kaokoland for protecting customary land rights to commonages.
In practice, this means that 30 years after independence, pastoralists in Namibias
north-west do not enjoy legally protected rights.
Werner concludes that Namibia needs a new land policy and legal framework
that is simultaneously specific enough to provide for good governance in land
10 " Neither here nor there: Indigeneity, marginalisation and land rights in post-independence Namibia
administration and flexible enough to protect local customs and practices. It
must acknowledge and enable customary land rights holders to elect local-level
leadership and participate in the administration of their land rights. Local-level
institutions capable of administering customary land rights do exist and are well
known. These need to be supported and modernised if the country is serious about
making land rights more secure. Downward accountability and consultation with
customary land rights holders need to be improved.
Understanding Damara / !N khoen and ||Ubun indigeneity and
marginalisation in Namibia is the title of Sian Sullivan and Welhemina Suro
Ganuses chapter, which seeks to offer some context for understanding present
circumstances and ongoing debate regarding Damara / !N khoen and ||Ubun
indigeneity and mar ginalisation in Namibia. With their data on the basis of oral
histories and personal testimonies collected since the 1990s, the authors highlight
how colonialism affected the subgroup in relation to land distribution and connected
policies.
The chapter engages with the following intersecting themes: It depicts how and
by whom the Damara were perceived before colonisation. To better understand
issues of identity and displacement, the chapter then analyses the dynamic social
relationships between Damara / !N khoen lineages and specific land areas. Since
a high proportion of Damara / !N khoen and ||Ubun do not now occupy their
former land areas, the chapter outlines some of the processes by which the majority
of Damara / !N khoen and ||Ubun lost rights over and access to land areas with
which they had understood themselves to be in relationships of belonging and
custodianship, also specifically focusing on 20th century historical evictions. This
section is followed by an outline of the issues associated with the post-Odendaal
creation of the Damaraland homeland. It is depicted that whilst the creation of
Damaraland offered an expanded settlement area for Damara / !N khoen living
at the time in other parts of the country, it also led to some further displacements.
In the section on the post-independence era, the chapter highlights changes in
the administration of land in the former homeland. The section touches on
the diverse opportunities and constraints engendered by the post-independence
establishment of conservancies in and around the former homeland area as a core
element of a national and donor-funded programme of CBNRM; and it touches on
some implications of an unclear policy setting for asserting exclusionary rights to
and control over communal area land. Lastly, the authors review the reasons for
ongoing discrimination against Damara / !N khoen, arguing for their inclusion in
discourses of indigeneity and marginalisation in Namibia.
In conclusion, the chapter demonstrates that Damara / !N khoen and ||Ubun
achievements, adaptations and resilience in contemporary circumstances are
unevenly enjoyed, and have been accomplished against a background of significant
marginalisation and deprivation. The authors argue that recognising Damara /
!N khoen and ||Ubun presence and indigeneity, as well as their experiences of
11
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ii
11
11
11
11
Introduction " 11
marginalisation through historical processes causing their loss of land and resources,
is an important step towards fair redress.
In the concluding chapter, San land rights in Namibia: Current national
processes and community priorities, Ben Begbie-Clench and Noelia Gravotta
focus on current national processes and policy proposals concerning primarily
land rights of the San communities in Namibia and suggest possible action steps
regarding the respective issues.
The chapter states that there has been substantial progress in many areas of
land governance since Namibias independence, including the development of
appropriate national legislation and policies, land acquisition for resettlement,
and investments in communal areas. However, the concerns of San groups, and
the negative public sentiments about land, are reinforced by the limited success
of Namibias resettlement programme and shortcomings in the management of
communal land, amongst other issues. At the time of writing, several processes
within the GRN related to both San groups and land were underway. These included
follow-up on the Second National Land Conference, a Presidential Commission of
Inquiry to examine questions surrounding ancestral land in Namibia established by
the GRN, and the review of a draft White Paper on the Rights of Indigenous Peoples
in Namibia.
"
12 " Neither here nor there: Indigeneity, marginalisation and land rights in post-independence Namibia
A few of the many publications of the LEAD Project of the LAC relating to land reform in Namibia
generally and specific topics covered in this book. All are freely available at www.lac.org.na.
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