S
IT
U
A
T
IO
N
A
N
A
LY
S
IS
O
F IN
FO
R
M
A
L S
E
T
T
LE
M
E
N
T
S
IN
K
IS
U
M
U
UNITED NATIONS HUMAN SETTLEMENTS PROGRAMME
P.O. Box 30030, GPO Nairobi 00100, KENYA
Telephone: 254-20-7623120; Fax: 254-20-7624266/7 (Central Office)
E-mail: infohabitat@unhabitat.org; Website:http//www.unhabitat.org
HS/788/05E
ISBN: 92-1-131768-1
LAND TENURE, HOUSING RIGHTS AND GENDER
L
a
w
, L
a
n
d
T
e
n
u
re
a
n
d
G
e
n
d
e
r R
e
v
ie
w
: S
o
u
th
e
rn
A
fric
a
N A M I B I A
L a w, L a n d Te n u r e a n d G e n d e r Re v i e w : S o u t h e r n A f r i c a
N
A
M
I B
I A
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
LAND TENURE, HOUSING RIGHTS AND GENDER
I N
N A M I B I A
2005
ii
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Law, Land Tenure and Gender Review Series: Southern Africa
Copyright (C) United Nations Human Settlements Programme (UN-HABITAT), 2005
All Rights reserved
United Nations Human Settlements Programme (UN-HABITAT)
P.O. Box 30030, Nairobi, Kenya
Tel: +254 20 7621 234
Fax: +254 20 7624 266
Web: www.unhabitat.org
Disclaimer
The designations employed and the presentation of the material in this publication do not imply the expression of any
opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory,
city or area, or of its authorities, or concerning delimitation of its frontiers or boundaries, or regarding its economic system
or degree of development. The analysis, conclusions and recommendations of this publication do not necessarily reflect
the views of the United Nations Human Settlements Programme, the Governing Council of the United Nations Human
Settlements Programme, or its Member States.
HS/788/05E
ISBN Number(Series): 92-1-131768-1
iii
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Foreword to Southern Africa Law And Land Tenure Review
Africa is currently the region of the world that is witnessing the most rapid rate of urbanisation.
The Southern African sub-region is no exception. The chaotic manifestations of rapid urbanisation
include poor and inadequate infrastructure and services, urban poverty and the proliferation of
slums and informal settlements. The precarious nature of land tenure characterizing these settle-
ments renders millions of people vulnerable to evictions. Their illegal status further hinders their
access to basic infrastructure and services, a key challenge that has to be overcome in order to attain
the Millennium Development Goals of improved water and sanitation, gender equality, health,
education, nutrition and the prevention of diseases.
Through the generous support of the Government of the Netherlands, UN-HABITAT is pleased
to publish its review of the legal and policy frameworks governing urban land tenure in Southern Africa. In addition to an
overview of the situation in all ten countries of the sub-region, the present report contains four case studies which analyse the
specific cases of Lesotho, Mozambique, Namibia and Zambia. These case studies provide a comprehensive examination of
the laws and policies governing urban land tenure, with a special focus on their impact on womens rights to land and housing.
National experts in each country have conducted extensive research to reveal the often-complex legal issues which hinder or
enable the efforts of Governments, local authorities and their civil society partners in improving the living conditions of the
urban poor. The study reveals that the sub-region is characterised by overlapping legal regimes. These include pre-colonial
customary law which co-exists with a mixture of outdated and often draconian colonial laws and more recent legislation.
Strengthened security of tenure for the urban poor of Southern Africa is an essential step towards sustainable urbanisation
and development of the sub-region. Without secure tenure, the prospects for local economic development, a safe and healthy
environment, and stable homes for future generations to grow up in will remain bleak. Secure tenure alone will, however, not
be sufficient and a clear message that emerges from this review is that good local governance is essential for tenure security
programmes are to achieve their desired goals and effectiveness.
This review contains findings and recommendations for both immediate and longer-term law reform to strengthen the tenure
rights of all people, especially the poor and women. While they will further guide and inform UN-HABITATs normative
work through its two Global Campaigns for Secure Tenure and Urban Governance, it is my sincere hope they will contribute
to furthering broad-based dialogue and engagement in land reform and security of tenure in all countries in Southern Africa
in support of attaining the Millennium Development Goals.
Mrs. Anna Kajumulo Tibaijuka
Executive Director
United Nations Human Settlements Programme
(UN-HABITAT)
iv
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Acknowledgements
Global Coordinator and Substantive Editor: Marjolein Benschop, UN-HABITAT
Assisted by Florian Bruyas, UN-HABITAT
Regional Coordinator Law, Land Tenure and Gender Review in Southern Africa:
Stephen Berrisford and Theunis Roux
Regional Overview and summary of Poverty Reduction Strategy Papers: Stephen Berrisford, Theunis Roux and Michael
Kihato
Womens rights sections in regional overview: Joyce McMillan, Women and Law in Southern Africa
Executive Summary, Introduction, restructuring and shortening of final draft: Stephen Berrisford and Michael Kihato
Editing: Greg Rosenberg
Namibia Chapter:
Legal Assistance Centre: Willem Odendaal, Researcher, with assistance from Shadrack Tjiramba and guidance from Norman
Tjombe, Director.
UN-HABITAT and the Legal Assistance Centre would like to express special thanks to
Søren Christensen, who wrote the section on the Flexible Land Tenure System and provided additional comments and cor-
rections to the final draft.
The Legal Assistance Centre would like to thank the following persons and organisations:
Anna Muller, Director, Namibia Housing and Action Group
Albert Engel, Sector Coordinator Natural Resources and Rural Development for
GTZ in Namibia
Aunue Shipanga, Manager Public Relations, National Housing Enterprise
Edith Mbanga, National Coordinator, Shack Dwellers Federation of Namibia
v
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Fenny Nauyala, Deputy Director, National Built Together Programme Ministry
Local Regional Government and Housing
Francois Swartz, Director, International Development Consultancy; Director
Irene Marenga, Administrator, Association of Regional Councils
Jacques Korrubel, Director, Habitat Research and Development Centre
Jana De Kock, Corporate Legal Advisor for the Municipality/City of Windhoek
Jane Gold, Town Planner
Joas Santos, Executive Director, Urban Trust of Namibia
Johan Oppermann, Director, Urban Dynamics Africa
Jonathan Sam, Public Relations Officer, National Housing Enterprise
Maureen Nau/oas, Acting Chief Administration Officer Association of Local
Councils Namibia
Mike Kavekotora, CEO, National Housing Enterprise
Søren Christensen, Ibis Advisor on land surveying and land administration at
the Lands Project at the Ministry of Lands, Rehabilitation and
Rehabilitation
Ted Rudd, Director, Urban Dynamics Africa, 11 June 2004.
This publication was made possible through funding from the Government of the Netherlands.
vi
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
List of Abbreviations
AIDS Acquired immunodeficiency syndrome
CLB Communal Land Board
DSM Directorate of Survey and Mapping
GDP Gross Domestic Product
HIV Human immunodeficiency virus
IMSCLUP Inter-Ministerial Standing Committee for Land Use Planning
LAC Legal Assistance Centre
MRLGH Ministry of Regional and Local Government and Housing
MLRR Ministry of Lands, Resettlement and Rehabilitation
NGO Non-governmental organisation
NHAG National Housing Action Group
NHP National Housing Policy
NHE National Housing Enterprise
NPRAP National Poverty Reduction Action Programme 2001-2005
PRSP Poverty Reduction Strategy Plan
PTO Permissions to Occupy
SDFN Shack Dwellers Federation of Namibia
WLSA Women in Law in Southern Africa
WAD Womens Action for Development
WLSA Women and Law in Southern Africa
vii
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
TABLE OF CONTENTS
FOREWARD iii
EXECUTIVE SUMMARY 1
SOUTHERN AFRICA 1
Southern Africa Regional Overview 5
1. Introduction 5
2 Legal systems of the region 7
3 International law 8
4 Land reform in the region 8
5 Land and housing movements in the region 11
6 Slums and informal settlements 12
7 Tenure types and systems 14
8 Land management systems 15
9 Womens rights to land and housing in the region 17
9.1 Constitutional provisions 17
9.2 Marital property rights 18
9.3 Inheritance rights 20
9.4 Affirmative action policies 22
9.5 Best legislation, policies and practices on gender issues 23
10 Racial and ethnic equality 23
11 Regional recommendations and priorities 24
Land law reform in Namibia 27
Introduction 27
1 Background 29
1.1 Historical background 29
1.2 Legal system and governance structure 30
1.3 Socioeconomic context 33
1.4 Civil society 34
viii
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
2. Land Tenure 36
2.1 Types of land 36
2.2 Tenure types 36
2.3 Land policy 42
2.4 Main institutions 43
3 Housing 45
3.1 Relevant constitutional provisions 46
3.2 Policies related to housing 46
3.3 Relevant housing legislation 47
3.4 Tenure types 48
3.5 Main institutions 48
4. Inheritance and Marital Property Legislation 50
4.1 Relevant constitutional provisions 50
4.2 Legislation related to inheritance rights 51
4.3 Legislation related to marital property rights 52
4.4 Customary law 53
4.5 Administration of estates (inheritance procedures) 55
5. Poverty Reduction Strategy 56
5.1 Introduction 56
5.2 The National Poverty Reduction Action Programme 2001-2005 (NPRAP) 56
5.3 Summary 57
6. Land Management Systems 58
6.1 Main institutions involved 58
6.2 Informal settlements and the formal system 60
6.3 Dispute settlement mechanisms 62
6.4 Most relevant jurisprudence 63
7. Local Laws and Policies 63
7.1 Local authority regulations 63
7.2 Windhoek housing policy 64
ix
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
8 Implementation of Land and Housing Rights 65
8.1 Implementation of policy and legislation 65
8.2 Role of the judiciary 66
8.3 Cultural issues 66
8.4 Race and class issues 66
8.5 Access and affordability issues 67
8.6 Educational and capacity-building issues 67
8.7 Impact of HIV/AIDS 67
9 Best Practices 68
9.1 The Land Management Diploma 68
9.2 CBO, NGO and government partnerships 68
9.3 The city of Windhoek 68
9.4 The social and economic empowerment of women in the SDFN 69
9.5 Low-cost alternatives to better housing 69
9.6 Sustainable development and environmental health programme 69
10 Conclusion 69
11 Recommendations 70
11.1 Flexible Land Tenure Bill 70
11.2 Law reform 72
11.3 Governance 72
11.4 Coordination and integration 73
11.5 Further research needed 73
REFERENCES 75
APPENDIX 81
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
ExEcutivE Summary
Southern africa
This report was commissioned by UN-Habitat to review
the laws and land tenure of a selected number of southern
African countries. It involved the appointment of country
specialists who researched and produced country chapters
for their respective countries namely, Lesotho, Mozambique,
Namibia and Zambia. A regional expert was appointed to
produce a regional overview to serve as a source document
for the country reports, as well as provide overall coordina-
tion of the project. The project was carried out over a period
of roughly one year, which began in March 2004.
The economic, social and political diversity of the region pre-
cludes one from reaching sweeping conclusions. Nevertheless
it is possible to recognise a number of common themes. The
recommendations that flow from this work obviously have
to be considered in the light of the difficult socio-economic
conditions prevailing in the region. Among the worst poverty
levels in the world as well as high HIV/AIDS infection rates
need to inform any reform initiatives, and infuse a sense
of realism and strategic thinking into any conclusions or
recommendations. This also means that all reforms should
have poverty alleviation as their foremost priority, followed
closely by a concern with the interests of vulnerable groups
like people infected or affected by HIV/AIDS. Because pov-
erty and HIV/AIDS have the greatest impact on women, all
initiatives must prioritise the importance of womens rights
to fair and equal treatment, as well as their specific needs and
challenges.
The first area of reform that arises in the region is the need
for constitutional review in a number of the countries. The
degree of reform required varies depending on the country,
but they all reflect a number of shared concerns. Firstly, there
is a widespread need to enshrine and strengthen the right to
adequate housing. With this right come related aspects of
service provision as well as the prevention of unlawful evic-
tions. Secondly, constitutional reform that eradicates against
women is essential. While all the constitutions within the re-
gion appear to prohibit overt discrimination on the basis of
gender, many allow for such discrimination where customary
law is applicable and where customary law permits it.
Across the region a number of other areas of law also have
to be tackled as a matter of urgency. The first category is
land laws, which have to be reviewed and revised to provide
flexible and practical methods of ensuring secure land tenure
rights for the poor. This includes the recognition of exist-
ing tenure arrangements through simple, cheap, informal
and incremental systems. Another important area of legal
reform recommended is changing laws that deal with marital
and inheritance rights. The influence of marital and prop-
erty laws has often not been linked to land reform initiatives.
Many of these laws however discriminate against women in
the acquisition, control and inheritance of land and housing.
Laws that discriminate against women on issues of marital
property and inheritance rights should therefore be repealed.
This means that both men and women should have equal
rights over marital property during and after the marriage or
death of a spouse, irrespective of how they are married. A
third priority area for law reform is the need to review high
planning and building standards to facilitate provision of
land and housing for poor people. Finally, law reform is also
needed in most countries of the region to regulate better the
relationship between landlords and tenants, with a view to
promoting rental as a secure and useful form of land tenure
for those people who require it.
Legal reform is successful only within a supportive frame-
work. Tied to reform initiatives, is the need for supportive
structures of implementation. The first is local government.
A key recommendation in this work is for the creation of
capacitated and functioning local government with a clearly
defined mandate for managing land and housing issues. The
second is judicial reform. It is recommended that dispute
resolution mechanisms on issues dealing with land are made
simpler, easier to access and more recognizable to people
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
at local level. Civil society is an important driver of legal
reform. Support for strong civil society organisations with
an urban land focus is therefore recommended. Many recent
reform initiatives have stalled, and a vigilant and active civil
society is important to sustain the reform drive. The role
of traditional leadership in land reform also cannot be over-
looked. Traditional leaders still command a lot of legitimacy
and are closely linked to land allocation and local dispute
resolution. Traditional leadership should be incorporated
more into reform initiatives and traditional leaderships deci-
sion-making processes must become more transparent and
accessible. Finally, structures in government involved in land
often perform their task in an uncoordinated manner due
to overlapping mandates and unclear roles. A key aspect of
reform is the creation of well-defined mandates and lines of
responsibility among institutions involved in implementing
and administering land and housing programmes.
Capacity building is a recurring theme upon which many
recommendations are based. There are many structures
that need to be capacitated to ensure the success of these
reform initiatives. Structures within government are the first
category. Local government, departments directly dealing
with land matters and the judiciary all need larger budgetary
allocations as well as more and better-trained staff. In recog-
nition of the reality of limited government ability to provide
for this, it is recommended that cheaper and more innovative
ways are found to increase capacity. This includes partner-
ships with the private sector, the use of trained technicians
rather than professionals for certain tasks and more efficient
revenue collection and spending. Capacity also has to be built
in community structures and NGOs. Civil society in most of
these countries is not active and requires support.
The reform initiatives have to be backed up by monitoring
and evaluation initiatives. For these initiatives to succeed it
will be essential that efficient and effective systems of data
collection and data management are established. It is also
strongly recommended that data in future be disaggregated
according to gender. This serves as a useful tool to measure
the success of the reform initiatives in altering gender biases
and to inform ongoing law and policy review. Related to data
collection is the need for further research. One particular
recommendation in this respect stands out. The effects of
HIV/AIDS on urban land rights are unknown, although
the agreed view is that it makes households and women in
particular, more vulnerable to dispossession. This is an area
requiring more and detailed research so that appropriate and
specific interventions can be formulated.
Finally, an important and recurring aspect that influences re-
form is attitudes. Many recommendations that emerge from
the reports are aimed at defeating long held patriarchal at-
titudes in society. These attitudes impede the equal treatment
of women at virtually all levels of society, in households,
communities and government. Many recommendations
call for equal representation of women in decision-making
bodies. Government organs like the legislature, judiciary and
departments dealing with land are singled out. Traditional
leadership structures should also be expanded to incorporate
women and other marginalized groups. Additionally educa-
tion and awareness is recommended as a way of gaining ac-
ceptance for reform from the public. It is however generally
acknowledged that it is difficult to change attitudes without
long and sustained efforts.
There is significant clamour for reform of land and housing
laws and policies across Southern Africa. Laws that deal with
land in general are being re-examined and more progressive
laws suggested to replace them. The core finding of this
report is there is need to sustain the momentum of these
reform initiatives, and in many instances to expedite them to
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Figure 1.1 Map of Southern Africa
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Southern africa regional Overview
1. introduction
This overview introduces four separately published reports
covering law and land tenure in Lesotho, Mozambique,
Namibia and Zambia. It provides an overview of trends
and issues emerging in the Southern African region. Almost
all the countries in the region are engaged in processes of
land law reform. 1 Although the focus of much of this law
reform is the regions rural land, there are also many exam-
ples of new laws being formulated and discussed that deal
specifically with urban land. In addition, a feature of the
region is that boundaries between urban and rural tend to
be indistinct. This, together with a widespread tendency to
import customary laws and practices from the rural areas
to the towns and cities, means that it is not always helpful
to distinguish too sharply between urban and rural land laws.
It is also interesting to note that while every country in the
region has a land ministry, their primary concern is rural land.
Urban land is dealt with as a secondary concern of ministries
of local government and planning. To date, no country in
Southern Africa has a dedicated policy framework within
which to manage the urbanisation process.
All countries in the region face the considerable challenge
of capacity shortfalls. Not only do the various government
departments and municipalities lack suitably skilled or expe-
rienced personnel, but they also lack the financial resources
to either train or hire new recruits, or to procure professional
services from the private sector.
Southern African governments receive, or have received,
donor support for their land law reform processes. Obviously,
the overriding rationale for donor support for land law re-
form is that it can alleviate poverty. Beneath the umbrella
of poverty alleviation, donor support for land law reform
tends to be motivated by two main concerns. First, there
is a concern with the often unequal effects of land law on
1
For
an
overview,
see
SARPN
(2003).
Seeking Ways out of the Impasse on Land
Reform in Southern Africa. Notes
from
an
Informal
Think-tank:
Meeting.
women, but also on certain ethnic and racial groups. Second,
and perhaps more importantly, there is a widely held belief
that the economic development of the region requires firmer,
more individualised and more secure land rights in order to
promote investment in the regions economies. This second
concern inevitably adds weight to those voices advocating
the increased privatisation of land rights in Southern Africa.
Some key contextual features of the entire Southern African
region include:
" Poverty: the region includes some of the poorest
countries in the world. Low levels of economic activity,
leading to weak government revenue flows, hamper ef-
forts to address land reform, and increase dependence
on international donors;
" Wealth gap: high levels of income inequality prevail
across the region. Countries such as Namibia and
South Africa are among the most unequal countries in
the world;
" HIV-AIDS: the global epidemic has hit Southern Af-
rica the hardest of any region in the world. While con-
siderable research has been done in some countries on
the epidemics impact on rural land holding patterns 2
there has been very little equivalent research done in
the urban areas;
" Gender division: although it is unwise to oversimplify
this point, access to land rights is largely determined by
gender, with womens land rights often being second-
ary rights, in that they are derived from land rights held
by their husbands or other male relatives; 3 and
" Colonial history: all the countries in the region suffered
under various forms of colonisation from the mid-17th
century through to the second half of the 20th century.
This has had a marked impact on land rights, although
this impact varies from country to country. Each coun-
try has also responded to the colonial legacy of skewed
and unequal land allocations in different ways, inevi-
tably involving some form of redistribution of land
2
This
research
highlights
especially
the
way
in
which
womens
land
rights
are
negatively
affected
by
the
phenomenon
of
HIV-AIDS.
See,
Strickland,
R.
(2004).
To have
and to hold: womens property and inheritance rights in the context of HIV-AIDS in Sub-
Saharan Africa.
ICRW
Working
Paper.
3
Walker,
C.
(2002).
Land
Reform
in
Southern
and
Eastern
Africa:
Key
Issues
for
Strengthening
Womens
Access
to
and
Rights
in
Land.
Report
on
a
desktop
study
commissioned
by
the
FAO.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
rights. Patterns of land ownership inherited from the colonial era have also contributed to a number of cases of weak
governance, as well as civil conflict.
Table 1.1 Social development indicators Southern Africa 4
Country
(with total
pop.)
Access to
services
(% of total
pop.) 2000
Age group as a
percentage of
total pop. (2002)
Poverty Income distr.
(share of
income held
by groups)
1989-2000)
Urban-isation HIV/Aids estimates
(end 2001)
Sa
fe
w
a
te
r
Sa
n
it
a
ti
o
n
0
-1
4
1
5
-6
4
6
5
+
%
p
o
p
u
la
ti
o
n
<
$
1
/
d
a
y
P
e
r
ca
p
it
a
G
D
P
R
ic
h
e
st
2
0
%
P
o
o
re
st
2
0
%
U
rb
a
n
p
o
p
u
la
ti
o
n
g
ro
w
th
U
rb
a
n
p
o
p
.
G
ro
w
th
a
s
%
o
f
to
ta
l
A
d
u
lt
r
a
te
(
%
)
A
id
s
o
rp
h
a
n
s
(0
1
4
)
Angola
(13 million)
38 44 50 52.7 3.1 n/a 2,053 n/a n/a 5.3 35.5 5.5 100,000
Botswana
(2 million)
95 66 41.3 55.3 2.3 23 8,244 70.3 2.2 4.2 49.9 38.8 69,000
Lesotho
(2 million)
78 21 46.2 65.7 5.0 43 2,272 70.7 1.4 5.3 31.3 31.0 73,000
Malawi
(11 million)
57 76 44.6 51.8 3.5 42 586 56.1 4.9 4.5 29.5 15.0 470,000
Mozambique
(18 million)
57 43 42.4 53.6 3.6 38 n/a 46.5 6.5 6.6 34.3 13.0 420,000
Namibia
(2 million)
77 41 38.1 49.6 3.4 35 6,410 78.7 1.4 3.9 31.9 22.5 47,000
South Africa
(45 million)
86 87 30.7 60.4 4.3 7 10,132 66.5 2.0 3.4 58.4 20.1 660,000
Swaziland
(1 million)
N/a N/a 41.8 54.5 2.8 n/a 4,503 64.4 2.7 4.2 27.0 33.4 35,000
Zambia
(10 million)
64 78 45.6 53.7 2.3 64 806 56.5 3.3 2.7 40.1 21.5 570,000
Zimbabwe
(13 million)
83 62 43.4 52.1 3.1 n/a n/a 55.7 4.6 4.3 36.7 33.7 780,000
4 World Bank. (2004). African Development Indicators.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
2 Legal systems of the region
In addition to the continuing application of African custom-
ary law, which is a feature of all countries in the region, there
are three main settler legal systems in Southern Africa: Roman-
Dutch law 5 (Botswana, Lesotho, Namibia, South Africa,
Swaziland and Zimbabwe); Portuguese colonial law (Angola
and Mozambique); and English law (Malawi and Zambia). In
general, the form of the settler legal system does not seem to
exert much influence over land and housing policy. There are
some differences in approach, however, that may be attribut-
able to underlying legal systemic differences, particularly in
relation to marital property and inheritance issues.
Table 2 1Main settler legal systems
Settler legal system Southern African countries
Roman-Dutch Botswana
Lesotho
Namibia
South Africa
Swaziland
Zimbabwe
Portuguese Angola
Mozambique
English Malawi
Zambia
First, the Portuguese legal system inherited by Mozambique
and Angola is a so-called civilian system. The main differ-
ence between common-law and civilian systems is that, in
civilian systems, each judicial decision is taken to be a fresh
interpretation of the civil code as applied to the facts of the
case. This tends to reduce the significance in civilian systems
of past judicial decisions, and consequently the role of the
courts in the development of land and housing rights.
The second possible significant difference relates to the
dominant position of ownership in Roman-Dutch common
law, in comparison to English and Portuguese land law, where
5
Roman-Dutch
law
was
introduced
to
Southern
Africa
by
Dutch
colonisers
in
the
17th
century
and
has
remained
the
basis
for
a
number
of
legal
systems
in
the
region.
freehold is less hegemonic. In Mozambique, the socialist-
inspired policy of state land ownership thus finds support
in Portuguese colonial law, which also favoured state land
ownership and private use rights. In Zambia, the influence of
English land law may have bolstered the post-independence
preference for leasehold over freehold tenure, although that
countrys post-independence land reforms were, like those in
Mozambique and Angola, also carried out within a socialist
framework.
Thirdly, the superficies solo cedit rule in Roman-Dutch law
(in terms of which anything permanently attached to land
is regarded as part of the land 6) means that in Botswana,
Lesotho, Namibia, South Africa and Zimbabwe the distinc-
tion between land and housing rights is one of emphasis rather
than law. In the absence of a purpose-designed statute, such
as the Sectional Titles Act in South Africa, 7 it is not legally
possible in these countries to separate rights to a structure
from rights to the land on which the structure is built (which
is not to say that separate rights to land and structures do not
feature in extra-legal land allocation practices 8). Generally
speaking, land policy is equated with rural land reform in the
countries where Roman-Dutch legal tradition holds sway,
whereas housing policy is mostly given an urban inflection.
Within these separate policy domains, the term land rights
is used to emphasise the preoccupation of rural land reform
with land as a productive asset, and the term housing rights
to connote the right to shelter and tenure security.
In practice, legal systemic differences are a less significant
determinant of the approach to land and housing policy
than the colonial legacy in each country. For example, in
Mozambique, the current difficulties over the continued ap-
plication of colonial law have more to do with the nature
of Portugals withdrawal from that country, and the ensuing
6
See
van
der
Merwe,
C.
G.
(1987).
The Law of Things.
para
144
(in
relation
to
structures
built
on
land,
the
superficies solo cedit
principle
supports
a
form
of
original
acquisition
of
ownership
known
to
Roman-Dutch
and
modern
South
African
law
as
inaedification.
7
Act
95
of
1986.
8
Royston,
L.
(2002).
Security
of
Urban
Tenure
in
South
Africa:
Overview
of
Policy
and
Practice.
in
A
Durand-Lasserve
and
L
Royston
(eds).
Holding Their Ground: Secure Land
Tenure for the Urban Poor in Developing Countries.
pp.
165-81.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
civil war, than with the character of the received legal system.
Post-independence land speculation was the immediate rea-
son for Zambias turn to state land ownership.
Although each of the different legal traditions inherited in
the Southern African region had a different name for it, they
nevertheless all provided for some form of transferring land
rights to an unlawful occupier of that land, for a prescribed
period of time, where the lawful occupier had neglected his
or her land. Variously called adverse possession, prescription
or usucapião in the different countries of Southern Africa,
the common-law roots of this doctrine have almost all been
translated into new statutes that spell out the criteria for
obtaining land rights in this way. 9 Any differences in the
common-law approach to this question have therefore been
rendered irrelevant. 10
All countries in Southern Africa have dual legal systems in
the sense that both customary law and inherited colonial
common law are applicable (in addition to pre- and post-
independence statute law). The exact time of reception
of colonial common law differs from country to country.
For example, Roman-Dutch law was imported into the
Protectorate of Bechuanaland (now Botswana) on June 10
1891, 11 and into Basutoland (now Lesotho) by the Cape
General Law Proclamation 2B of 1884. 12 The time of recep-
tion of colonial common law is obviously less important than
the date of independence, for it is the latter that determines
the degree to which the independence government has had
the opportunity either to abolish or harmonise the dual legal
system.
9
See,
for
example,
Art.
12(b)
of
the
1997
Mozambique
Land
Law
and
section
3(4)
and
(5)
of
the
Extension
of
Security
of
Tenure
Act
62
of
1997
(South
Africa).
10
In
practice
the
prescribed
time
periods
for
this
form
of
land
acquisition
can
vary
widely,
from
10
years
in
Mozambique
to
30
years
in
South
Africa.
11
McAuslan,
P.
(2004).
Tensions of Modernity.
Paper
presented
at
the
University
of
Reading
Centre
for
Property
Law
IVth
Biennial
Conference,
p.
6.
12
Selebalo,
Q.
C.
Land Reform and Poverty Alleviation: Lesothos experiences during
the last two decades.
Paper
presented
at
the
SARPN
Conference
on
Land
Reform
and
Poverty
Alleviation
in
Southern
Africa,
p.
2.
3 international law
Most countries in the region are party to the main interna-
tional and regional human rights instruments. In the appen-
dix the most relevant international human rights conventions
are listed and an overview is provided of which countries are
party to which instruments.
4 Land reform in the region
One of the main distinctions relevant to land reform in
Southern Africa is between those countries that had sub-
stantial settler populations and those that did not. South
Africa, Namibia and Zimbabwe all still have significant settler
populations, holding large areas of land, especially agri-
cultural land. 13 In comparison, the majority of the settler
populations of Mozambique, Angola, Zambia and Malawi
left those countries shortly after independence. Within this
group of countries there is a further distinction between,
on the one hand, Mozambique and Angola, where the in-
dependence governments were not hampered by the duty to
compensate departing settler landowners, and, on the other
hand, Malawi and Zambia, where initial land reform efforts
were constrained by the duty to compensate. The third main
category consists of Lesotho and Botswana, neither of which
had significant settler populations. Swaziland is unique in the
sense that, although it had significant settler land ownership,
much of this land was repurchased by the Swazi people dur-
ing the last century. 14
The first main consequence of these differences is that
in countries with significant settler populations the land
13
In
Zimbabwe,
until
very
recently,
roughly
50
percent
of
all
agricultural
land
was
in
the
hands
of
a
few
thousand
white
farmers.
In
South
Africa,
87
percent
of
the
land
surface
was
under
settler
control.
The
amount
of
land
currently
owned
by
the
white
minority
group
is
unknown,
but
the
basic
landholding
pattern
has
not
changed
greatly
since
the
transition
to
democracy
in
1994.
In
South
Africa,
by
the
end
of
2000,
six
years
after
the
transition
to
democracy,
less
than
2
percent
of
agricultural
land
had
been
redistributed.
See
Sibanda,
S.
(2001).
Land Reform and Poverty Alleviation in South Africa.
Paper
presented
at
the
SARPN
Conference
on
Land
Reform
and
Poverty
Alleviation
in
Southern
Africa,
Pretoria.
(4-5
June
2001).
14
The
Swazi
Land
Proclamation
Act,
1907
reserved
37.6
percent
of
the
land
for
occupation by the Swazi people, and the remainder for settler occupation. The first
land
repurchase
programme
commenced
in
1913,
and
has
been
resumed
at
various
intervals.
By
1991
one
third
of
the
land
targeted
for
repurchase
had
been
acquired.
See
Alfred
Mndzebele
A
Presentation
on
Land
Issues
and
Land
Reform
in
Swaziland
paper
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
question in the immediate aftermath of independence has
tended to be dominated by rural land reform, especially land
redistribution. In countries with limited human and financial
resources, such as Namibia and Zimbabwe, this has resulted
in prioritisation of laws that aim to redistribute commercial
farmland over laws aimed at urban tenure reform. Thus, in
Namibia, the Agricultural (Commercial) Land Reform Act,
1995, which provides for redistribution of commercial farm
land, was enacted within five years of independence, whereas
the draft Flexible Land Tenure Bill, which provides innova-
tive, low-cost tenure forms for the urban poor, has yet to
find its way to parliament. The main reason for the delay
in enacting the Flexible Land Tenure Bill appears to be the
absence of a political champion in government.
The second important effect of the distinction between set-
tler and non-settler countries is the symbolic significance
of land ownership as the preferred form of land tenure in
the former group, where land ownership was invariably the
exclusive preserve of the settler minority. In South Africa,
especially, this has influenced the forms of tenure that have
been made available in urban housing programmes, which
show a distinct preference for ownership. By contrast, in
Zambia, the departure of the settler population freed the
independence governments hand to abolish private land
ownership. Without ownership as a dominant tenure form it
was possible to experiment with alternative forms of tenure
in the urban setting. 15
The different historical legacies in the region have also influ-
enced patterns of urbanisation, although here the causal link
between the size and permanence of the settler population,
and the urbanisation rate, is harder to isolate from other
factors. For example, South Africa is now experiencing very
high rates of urbanisation to its industrial centres, follow-
ing a long period of influx control, which lasted until the
mid-1980s. Yet in Mozambique, where the settler population
departed en masse in 1975, the annual percentage urban
presented
at
the
SARPN
conference
on
Land
Reform
and
Poverty
Alleviation
in
Southern
Africa
(June
2001).
15 See specific references to the relevant provisions of the Zambian Housing
(Statutory
and
Improvement
Areas)
Act
[Cap
194]
in
Chapter
5.
growth rate is the second highest in Africa, at 6.6 percent.
Indeed, apart from Zambia, all of the countries in the region
register urban growth in excess of 3 percent. 16 In none of
them is this process particularly well understood.
The table below compares the degree of urbanisation pre-
vailing in each of the regions countries. 17 It is significant
that only one country in the region has more than 50 percent
of its population currently living in urban areas.
Table 4.1 Urbanisation prevailing in Southern African
countries
Country Total population
(millions)
Urban
population as
% of total
Angola 13.1 35.5
Botswana 1.7 49.9
Lesotho 1.8 29.5
Malawi 10.7 15.5
Mozambique 18.4 34.3
Namibia 2.0 31.9
South Africa 45.3 58.4
Swaziland 1.1 27.0
Zambia 10.2 40.1
Zimbabwe 13.0 36.7
Southern Africa 117.3 42.8
Sub-Saharan Africa 688.9 33.1
The dual legal systems found in all the countries in the region
recognise, to a greater or lesser degree, customary laws, which
are inherently patriarchal. In some of the countries, such as
South Africa and Namibia, the independence constitution
specifically asserts the normative priority of equality rights
over rights to culture. 18 In others, such as Lesotho, patriar-
16
Op.
cit.,4.
17
World
Bank.
(2004).
Little Green Data Book.
18
See
section
9
(equality)
read
with
section
30
(language
and
culture)
of
the
1996
South
African
Constitution.
Section
30
reads:
Everyone
has
the
right
to
&
participate
in
the
cultural
life
of
their
choice,
but
no
one
exercising
these
rights
may
do
so
in
a
manner
inconsistent
with
any
provision
of
the
Bill
of
Rights.
0
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
chal forms of land holding are constitutionally entrenched. 19
The constitutional position in a country obviously affects
the degree to which land reform and urban tenure laws can
address gender discrimination. In Namibia and South Africa,
new laws applicable to areas under customary law guarantee
minimum representation for women on district level land
management bodies. 20 And in Zambia the national gender
policy mandates that 30 percent of all land parcels allocated
in urban areas are to be set aside for women. In Lesotho,
by contrast, the Deeds Registries Act, 1997 empowers the
Registrar to refuse to register a deed in respect of immovable
property in favour of a married woman whose rights are gov-
erned by Basotho law and custom, where such registration
would be in conflict with that law. 21
The table below sets out the way in which land is broadly
categorised in the region as state-owned trust land, privately
owned rural land or state-owned public purpose land (includ-
ing urban development).
19
See
section
17(4)(c)
of
the
Lesotho
Independence
Order,
1966
(exempting
customary
law
from
the
constitutional
prohibition
against
discrimination).
20
See
the
Namibian
Communal
Land
Reform
Act,
2002
and
the
South
African
Communal
Land
Rights
Act,
2004.
21
Selebalo,
Q.
C.
(2001).
Land Reform and Poverty Alleviation: Lesothos experiences
during the last two decades.
Paper
presented
at
the
SARPN
Conference
on
Land
Reform
and
Poverty
Alleviation
in
Southern
Africa,
June
2001
p.
7.
Table 4.2 Patterns of land distribution in Southern
Africa 22
Country State-owned trust
and/or customary
tenure
Privately
owned rural
land
State-owned public
purpose (including
all urban) land
Namibia 43% 39% 18%
South Africa 14% 67,5% 18,5%
(8,5% urban)
Zimbabwe 51%
(trust 42%; resettlement
9%1)
30% 19%
Botswana 71% 6% 23%
Lesotho 95%2 5% -
Malawi 67% 11% 22%
(3% urban)
Mozam-
bique
100%3 - -
Swaziland +/- 56% 25%
(approx.)
19%
(approx.)
Zambia Predominant4 - -
22 Op. cit., 3.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
5 Land and housing
movements in the region
The position of nongovernmental organisations (NGOs) in
the land sector varies considerably from country to country.
The strongest NGOs tend to be more active in the rural areas
than in the towns and cities, with notable exceptions being
the Namibian Housing Action Group and the Homeless
Peoples Federation in South Africa. Many NGOs in the
region have strong ties to international NGOs and donors,
with Oxfam, Ibis, the UK governments Department for
International Development (DFID) and German develop-
ment agency GTZ being particularly prominent.
In Angola and Mozambique, the NGO sector has been
ravaged by decades of civil war, but has recently emerged
as a strong force. The participation by civil society in the
drafting of the 1997 Mozambican Land Law is perhaps the
best-known regional example of civil society involvement in
policy-making. 23 In Angola, the Land Forum (Rede Terra)
was formed in 2002 and is attracting donor support, al-
though it has yet to play a significant role in shaping policy. 24
Namibia provides a possible good practice example in the
partnership formed between the national government, the
Namibian Housing Action Group and the Shack Dwellers
Federation of Namibia to implement the block system of
land tenure. The Zambia Land Alliance is a coalition of civil
society organisations that has been strongly critical of the
policy process leading up to the adoption of the land policy
in that country. 25 Pursuant to these criticisms, the alliance
was invited to partner the government in coordinating civil
society contributions to the policy process. It is yet to be seen
to what extent the views gathered by the group will change
the published draft policy.
23
Conceição
de
Quadros,
M.
(2002).
Country Case Study: Mozambique.
Paper
presented
at
the
Workshop
on
Integrating
Land
Issues
into
Poverty
Reduction
Strategies
and
the
Broader
Development
Agenda,
Kampala,
April
2002.
Tanner,
C.
(2002).
Law-
making in an African Context: the 1997 Mozambican Land Law.
FAO
Legal
Papers
Online
#26,
March
2002.
24
Op.
cit.,1.
25
Zambia
Land
Alliance.
(2002).
Initial Position Paper on the Draft Land Policy.
Paper
presented
to
the
Zambian
Government
Land
Policy
Technical
Committee
Lusaka
Province
Workshop,
December
2002.
There is only one regional NGO operating in the land sec-
tor: Women and Law in Southern Africa (WLSA). It is active
in Botswana, Malawi, Mozambique, Swaziland, Zambia and
Zimbabwe. Land Net Southern Africa, a network of organi-
sations and individuals concerned with land policy, which
operated briefly, supported by DFID, is no longer operative
because of funding problems. DFID is however investigat-
ing support for an experience-sharing and learning network
between NGOs in the region (the Southern Africa Regional
Land Reform Technical Facility). 26
Figure 5.1 NGO participation in policy-making
Weak NGO participation in policy-making
W
e
a
k
N
G
O
s
Malawi
Botswana
South Africa
Lesotho
Angola
Swaziland
Zambia
Zimbabwe
Stro
n
g
N
G
O
s
Mozambique
Namibia
Strong NGO participation in policy-making
Womens movements
Many womens coalitions in the region are loose alliances
that are formed around specific issues, such as the Justice for
Widows and Orphans Project in Zambia. In Swaziland wom-
ens NGOs came together on constitutional issues, fighting
for recognition of women and childrens rights. Professional
organisations have also been instrumental in advancing
women and childrens rights through research, advocacy and
litigation. Many womens organisations have been involved
in law reform processes. The Gender Forum, for example,
26
For
more
information
on
this
initiative
Lelanie
Swart
at
DFID
Pretoria
can
be
contacted
on
+27
12
431
2100.
An
important
regional
source
of
land-related
information
is
the
website
of
the
Southern
Africa
Regional
Poverty
Network
www.sarpn.org.za.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
spearheaded the fight for legal reform in womens rights in
Mozambiques Family Law of 2004.
Although some coalitions are formalised and survive beyond
specific projects, 27 many disintegrate after they meet their
objectives, or after the initiative for which they were formed
fails to yield results. They also often face political and social
resistance. Many womens movements in the region have also
not been as forceful or organised around land and housing
rights as they have been on other issues. 28
6 Slums and informal sett lements
As noted earlier, all countries in the region are experiencing
relatively rapid urbanisation, with mostly inappropriate or
non-existent policy responses. None of the countries actively
resists the growth of informal settlements. However, the
absence of resources, weak local government capacity, and
a reluctance to acknowledge the permanence of new urban
migrants prevent effective management of this issue.
At a regional level, there is no clear trend towards regularisation
of informal settlements. The Zambian Housing (Statutory
and Improvement Areas) Act represents perhaps the most
comprehensive attempt so far to enact a legal framework
for regularisation. In South Africa, regularisation has largely
been ignored in favour of mass-produced, subsidised hous-
ing. 29 After nearly 10 years of implementing this approach,
the South African housing minister announced a major new
housing policy direction in September 2004, which supports
in situ upgrading in desired locations. However, it remains
27
A
good
example
is
Zambias
umbrella
Non-Governmental
Organisations
Coordinating
Council
(NGOCC),
which
is
recognised
by
government
and
is
represented
on
leading
government
and
quasi-
governmental
institutions
such
as
the
Law
Reform
Commission.
It
submits
regular
reports
and
recommendations
to
parliamentary
select
committees
on
issues
affecting
women
and
children,
and
mounts
media
and
advocacy
campaigns.
Similarly,
in
Mozambique,
the
Womens
Coalition
survived
the
end
of
the
Family
Law
initiative.
28
Such
as
the
increase
of
women
in
decision-making
positions
and
on
violence
against
women.
29
See
Huchzermeyer,
M.
(2004).
Unlawful Occupation: Informal Settlements and
Urban Policy in South Africa and Brazil.
cap.
6.
It
is
however
important
to
note
that
as
early
as
1995
the
new
South
African
government
enacted
legal
provisions
for
upgrading,
in
the
Development
Facilitation
Act,
but
these
provisions
have
not
yet
been
used.
to be seen how this will be translated into practice. 30 In
Namibia some regularisation has occurred in the absence of
a dedicated legislative framework (see Chapter 4). 31
Throughout the region there is a blurred distinction between
urban and rural land, both on the edges of towns and cities
as well as in dense settlements in rural areas, the latter often
resulting from land redistribution projects (Namibia, South
Africa and Zimbabwe). A second reason for the blurred urban-
rural distinction is the continuing importance of customary
law in land allocation practices on the urban periphery. In
Botswana, for example, the land boards are involved in the
process of allocating tribal land for urban use and develop-
ment. 32 This could produce conflict between the boards
and the land development procedures laid down in the Town
and Country Planning Act. 33 The conflict between custom-
ary and modern law is explored in detail in each of the four
reports.
In countries with extensive private land holdings, the primary
problem facing informal settlement dwellers is the illegality
of their occupation. In contrast, state ownership of land, e.g.
in Mozambique and Zambia, means that there is less legal op-
position to informal settlements. Regardless of the underlying
legality of a households occupation of land, the absence of
basic service provision is a common and persistent problem
across the region.
There are some good examples of informal settlement
organisations developing and implementing innovative prac-
tices to secure the tenure and improve the conditions of their
30
See
Press
Statement
by
LN
Sisulu,
Minister
of
Housing,
on
the
Public
Unveiling
of
the
New
Housing
Plan,
September
2
2004,
available
at
www.housing.gov.za..
As
the
current housing subsidy programme was not specifically designed and geared for informal
settlement
upgrading,
the
new
programme
is
instituted
in
terms
of
section
3(4)
(g)
of
the
Housing
Act,
1997,
and
will
be
referred
to
as
the
National
Housing
Programme:
In
Situ
Upgrading
of
Informal
Settlements.
Assistance
takes
the
form
of
grants
to
municipalities
to
enable
them
to
respond
rapidly
to
informal
settlement
upgrading
needs
by
means
of
the
provision
of
land,
municipal
services
infrastructure
and
social
amenities.
It
includes
the
possible
relocation
and
resettlement
of
people
on
a
voluntary
and
cooperative
basis,
where
appropriate.
31
See
also
World
Bank
(2002).
Upgrading of Low Income Settlements Country
Assessment Report: Namibia.
(Reporting
on
informal
settlement
upgrading
in
Windhoek
on
the
basis
of
City
Council
Guidelines).
32
Op.
cit,
11.
33 Ibid.
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
members. These include the Shack Dwellers Federation of
Namibias pioneering block system and the South African
Homeless Peoples Federations community-led social sur-
veys of informal settlements.
Women in slums and informal settlements
Although gender disaggregated data is sketchy, literature
indicates that in most of Southern Africa, the poorest of the
poor are women, and their lack of access to land and housing
has largely been due to their limited access to resources. 34
Scarcity of jobs especially for women and inadequate wages
to purchase housing means that women have little chance
to own decent housing. Other problems such as poverty, il-
literacy, violence, high costs in freehold and leasehold titled
land, HIV/AIDS and unfair inheritance and divorce laws,
also tend to force women into slums and informal residential
areas. HIV/AIDS, poverty and pregnancy are noted as keep-
ing adolescent women in slums 35.
34
Op.
cit.,49.
35
Caldwell,
J.
&
Caldwell,
P.
(undated).
Fertility Transition in Sub-Saharan Africa,
see
www.hsrcpublishers.co.za
Women are also often excluded in land or housing alloca-
tion. Expulsion of women from marital homes (sometimes
without divorce) also often forces women into poor hous-
ing areas. In some countries retaining marital power of the
husband in statute books, laws restrict the registration of
immovable assets in married womens names. As in formal
settlements, the man is still the owner of the house except in
women-headed households. 36
Few upgrading projects have catered explicitly for women.
Land redistribution also often fails specifically to target
women. A good example of the exception to this rule is
Namibia, which did not initially target women as potential
beneficiaries, although this changed and there is now a
deliberate effort to include women in the National Housing
Strategy.
36
Keller,
B.
Phiri,
E.
and
Milimo,
M.
(1990).
Women and Agricultural Development.
in
Wood,
A.
P.
et al
(eds).
The Dynamics of Agricultural Policy and Reform in Zambia.
pp.
241-262.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Table 6.1 Land distribution and upgrading projects in Southern Africa
Country Scheme Objective Services Women
Angola
Self-finance
urban infra-
structure
Shelter for internally
displaced urban
migrants
2,210 houses for 16,702 people; 12
km of power lines; 70 km of clean
water; 23 km of drainages; 29,000
km paved road
No statistics
Lesotho
Urban
upgrading
Project
Improving living
conditions for
slum dwellers and
providing housing
units
Housing for 267 families 134 female headed households
Namibia Nations Shelter Strategy
National Housing
Policy
3,400 housing units with additional
1,300 families per year
No statistics available but there is a
deliberate effort to include women
South Africa
Alexandra
Renewal Project,
etc.
Generally increasing
housing units
1 million low-cost housing units in
six years No statistics available
(Source: www.grida.no/aeo/214.htm accessed December 30 2004)
7 tenure types and systems
The vast majority of land in the region is still held under customary tenure, mainly in the rural areas, although the propor-
tion of land held in some or other form of individualised title (not necessarily ownership) is increasing. Accurate figures
for the amount of land held under different tenure forms are not available. In Zambia, where 94 percent of the land is
officially customary land, the actual proportion of land held under customary tenure is decreasing as the process of conver-
sion to leasehold tenure under the Lands Act, 1995, gathers momentum. 37 A similar process of conversion is underway in
Mozambique. In all countries in the region attitudes towards land tenure are undergoing a dynamic process of evolution. In
urban areas this process is particularly complex, as customary attitudes, rules and practices are adapted to fit within the more
modern tenure laws either inherited from the colonial powers or enacted since independence.
As noted earlier, in countries where the Roman-Dutch legal system applies, ownership tends to be the dominant form of
tenure. There has, however, been some experimentation with group ownership and other more flexible forms of tenure. In
South Africa, the Communal Property Association Act, 1995, which was originally designed as a vehicle for rural land reform,
has been used in the so-called Peoples Housing Process, which is the self-help part of the governments urban housing
programme. There has also been considerable donor support for cooperative housing in South Africa, although many of the
initial schemes have struggled to succeed, for financial reasons. Informal backyard rental continues to be a major tenure form
in both South Africa and Namibia. Across the region it is also common to find private rental arrangements between the owner
or primary occupant of a plot or structure and tenants, or sub-tenants, renting a part of the main property. This phenomenon
37 See section 2 of the Zambia Land Act, 1995 (defining customary area as meaning the area described in the Schedules to the Zambia (State Lands and reserves) Orders, 1928
to
1964
and
the
Zambia
(Trust
Land)
Orders,
1947
to
1964.
This
formulation
effectively
freezes
the
proportion
of
land
held
under
customary
tenure
in
Zambia
at
the
colonial
level,
notwithstanding
the
fact
that
the
Lands
Act
provides
for
the
conversion
of
customary
tenure
into
leasehold.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
is especially evident in Lesotho where a large number of
residents of Maseru, the capital, live in malaene homes, which
are rooms specially constructed by private individuals in a
row formation and then rented out on an individual basis.
The exception to the dominance of ownership in Roman-
Dutch-law countries is Zimbabwe, where the government
recently announced its intention to convert all freehold titles
into 99-year leaseholds. 38 If implemented, this policy will
shift the land tenure system in that country closer to that of
its northern neighbour, Zambia.
The draft Namibian Flexible Land Tenure Bill provides for
two innovative and closely linked forms of tenure: a type
of group ownership of surveyed urban land with individual
rights in unsurveyed plots, subject to conditions laid down in
the constitution of the group (starter title); and individual
rights to measured (but not formally surveyed) plots in a
surveyed block erf . The thinking behind this is not unlike
the thinking behind the Zambian Housing (Statutory and
Improvement Areas) Act. What these two pieces of legisla-
tion have in common is a shared commitment to informal
settlement regularisation through the creation of local level
registries, in which people are able to acquire rights in infor-
mally surveyed land or unsurveyed (but readily identifiable)
plots. The intention in both cases is to provide an adequate
level of tenure security, capable of supporting municipal in-
frastructure investment, without incurring the costs of formal
surveying. In Zambia, where the local level registry system
has been in operation since the mid-1970s, the system has
largely succeeded in providing security of tenure to residents
of informal settlements, but not in supporting loan-finance
for improved housing. The installation of basic services has
also been hampered by overly ambitious and costly service
standards, which have proved impossible to maintain. 39
Article 12 of the 1997 Mozambican Land Law provides an
interesting example of how tenure security can be provided
by statute without the need for surveying. There is some
38
The
Herald,
Harare,
June
8
2004.
39 In addition to the similarities between the Zambian and Namibian experiences of local
registries there are
also some important differences. For example, in Zambia, there is no possibility
evidence to suggest that the provision in this article for ac-
quisition of land after 10 years occupation in good faith pro-
vides an effective form of security of tenure for the residents
of informal settlements. However, the continued uncertainty
over the application of the Land Law in urban areas, and the
delay in adopting the Urban Land Regulations, may progres-
sively undermine this position. It is also doubtful whether the
device used in Art. 12 of the Land Law can be replicated in
other countries where land on the urban periphery is in pri-
vate ownership. In South Africa, for example, the Prevention
of Illegal Eviction from and Unlawful Occupation of Land
Act, 1998, tries to strike a balance between procedural pro-
tection against arbitrary eviction and enforcing the rights of
private owners to evict people who illegally occupy their land.
In Zambia, the recent eviction of people from land owned
by the Catholic Church 40 indicates the limitations of that
countrys Housing (Statutory and Improvement Areas) Act
in protecting people whose occupation of land has yet to be
legalised. 41
8 Land management systems
In all the countries in the region there is a stark distinction
between formal and informal land management systems.
Even in South Africa, where most of the land surface is sur-
veyed and mapped, the land management system applicable
in the former homeland areas is in a chaotic state, with
existing documentation either outdated or destroyed. The
Communal Land Rights Act, 2004, was in part enacted to
remedy this situation.
of upgrading a registered right from the local registry to the mainstream registry, whereas in
Namibia this is possible.
40 The first of these incidents took place in November 2002. Armed police acting on
behalf
of
the
Catholic
Church
demolished
600
houses
in
an
illegal
settlement
in
Lusakas
Ngombe
residential
area.
The
squatters,
who
had
been
resisting
eviction
over
the
six
months
prior
to
this
date,
were
taken
by
surprise
by
police,
who
razed
their
structures
without
removing
household
goods.
Police
beat
and
apprehended
about
10
of
the
squatters
who
blocked
the
road
leading
to
the
disputed
land
to
protest
the
destruction
of
their
homes
(see
Zambia
report).
41
Section 9 of the Land Act, 1995 provides that [a] person shall not without lawful authority
occupy or continue to occupy vacant land. Thus, where land is not declared as an improvement
area under the Housing (Statutory and Improvement Areas) Act, residents of informal settlements
are vulnerable to eviction.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
In respect of land falling under customary law, one of the
more contentious issues has been the attempt to subject land
allocation by local chiefs to democratic control. Botswana
provides an early and thus far successful example of this
phenomenon, with the land boards in that country playing
a legitimate and accepted role, not only in tribal land man-
agement, but also increasingly in the allocation of land on
the urban periphery. 42 By contrast, in South Africa, the
Communal Land Rights Act took more than five years to ne-
gotiate and, in its final form, largely preserves the land man-
agement functions of traditional councils, some of which
were created by the apartheid state. 43 In Mozambique and
Zambia there has been no attempt thus far to democratise
customary land management systems. Rather, legislation in
both these countries provides for the conversion of custom-
ary tenure to leasehold tenure.
Lesotho represents perhaps the most complete form of
interdependence of customary and formal rules in relation
to urban land management. The primary evidence of secure
tenure that is accepted by the courts as a basis upon which
to issue a lease title is a certificate signed by a chief, known
colloquially as a Form C.
One of the more innovative developments in the region has
been the decision to create local level registries in Namibia
and Zambia, independent of but connected to the formal
deeds registry. This has allowed simpler, more appropriate
and less costly forms of land administration to develop, ca-
tering to the needs of the urban poor.
Across the region, the tensions inherent in trying to man-
age comprehensive, up-to-date, responsive and accessible
registries of private land rights, cadastral surveys and public
land inventories within a context of limited capacity and
highly constrained resources are enormous. These tensions
42
Op.
cit.,11.
43
For
criticisms
of
this
Act,
Cousins,
B.
&
Claassens,
A.
(2004).
Communal
Land
Rights,
Democracy
and
Traditional
Leaders
in
Post-apartheid
South
Africa.
in
Saruchera,
M.
(ed)
Securing
Land
and
Resources
Rights
in
Africa:
Pan
African
Perspectives.
pp.
139-54;
Cousins,
B.
(2004).
The
Communal
Land
Rights
Act:
Likely
to
Face
Constitutional
Challenge.
Umhlaba
Wethu
No.
1,
August
2004;
Cousins,
B.
(2004).
The
Continuing
Controversy
Over
the
Communal
Land
Rights
Bill
of
2002.
ESR
Review,
Vol.
5
No.
4.
play themselves out in different ways but are most frequently
characterised by highly inefficient and inaccurate systems
that cost their respective governments a great deal more than
they benefit them. In some countries, as indicated above, in-
novative solutions to this problem are arising, from both the
formal and informal sectors, but these innovations have not
yet been tested at scale.
A further challenge to effective land management is the
question of building standards. Primarily as a result of the
regions colonial legacy most countries have one set of
building standards applicable to the urban areas previously
reserved for settler occupation and a different set applicable
to other areas. South Africa, Namibia and Zimbabwe are all
examples of this phenomenon. In other cases the authori-
ties have simply never been able or willing to apply building
standards to the more marginal urban areas, as has been the
case in Mozambique. Across the region however there is a
growing realisation that lower building standards inevitably
result in higher levels of access to land and housing for the
poor, through lowering the cost of the final housing product.
This has resulted in various policy initiatives, particularly in
Zambia and Namibia, to revise building standards to a more
realistic level.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
9 Womens rights to land and housing in the region
9.1 Constitutional provisions
The table below shows the position of non-discriminatory clauses in the constitutions of Southern African countries.
Table 9.1 Constitutions and non-discriminatory clauses in Southern Africa
Country Right to equality Discrimination on basis of
sex prohibited
Right to land, housing or
property recognised
Angola Yes, Art. 18 Yes, Art. 18 No
Botswana No. While Art. 15 recognises equality, customary law is allowed to
compromise the right to equality
No. Art. 15 excludes discrimination on
grounds of sex
No, only protection from deprivation of
property in Art. 8
Lesotho Yes, Art. 19
Yes, but Art. 18 (b) and (c) allows for
discrimination in personal law and
customary law
No, only protection from deprivation of
property in Art. 17
Malawi Yes, section 20: Yes, Sections 20 and 24 including marital status and gender Yes, Sections 24 and 28
Mozambique Yes, Arts. 66 and 67 Yes Art. 69 Yes, Art. 86 right to ownership of property recognised and guaranteed
Namibia
Yes, Art. 10 (1): all persons shall be
equal before the law . Art. 14 provides
for equal rights to men and women on
dissolution of marriage
Yes, Art. 10 (2): no person may be
discriminated against on grounds
of sex, race, colour, ethnic origin,
religion, creed, socio-eco status
Art. 16: all persons shall have the right to
acquire own dispose of all forms of property
individually or in association with others &
South Africa Yes section 9: everyone is equal before
the law&
Yes, section 9 includes grounds of
pregnancy and marital status.
Yes section 26: everyone has the right to
have access to adequate housing
Swaziland
(this is a draft
document
still under
discussion)
Yes sections 15, 21 and 29 have
provisions that recognise the right
to equality
Yes, in section 21. There is also a
section on rights and freedoms of
women
No only protection from arbitrary
deprivation of property
Zambia Equal worth of men and women
recognised.
Yes in Art. 23 which also allows for
discrimination in personal law and
customary law
No only protection from deprivation of
property in Art. 16
Zimbabwe Yes, Art. 9
Yes in Art. 23 which also allows for
discrimination in personal law and
customary law
No, only protection from deprivation of
property
Some key points:
" Apart from Malawi, in the rest of the region, no specific mention is made of women in provisions that relate to property
rights. This leaves the recognition and enforcement of womens rights to land, housing and property to the interpreta-
tion of the law;
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
" Apart from Namibia, where ratified international in-
struments are self-effecting, most Southern African
countries have signed and ratified international instru-
ments but have not domesticated them for local use;
" The constitutional provisions relating to equality and
non-discrimination can be avoided in some instances.
Often customary law is used, for instance in Botswana,
Lesotho, Swaziland, Zambia and Zimbabwe;
" In practice, recognition of womens rights in the con-
stitution does not automatically result in the actual en-
joyment of the rights. This is largely due to attitudes.
Often, socioeconomic circumstances, for example the
war in Angola, interferes with implementation of these
laws;
" The right to adequate housing is recognized in the
South African Constitution but not in the constitu-
tions of the other countries and cannot therefore be
enforced in court. Equally legislation on housing has
no specific reference to women as a disadvantaged
class of people;
" Joint tenure by couples, although permitted in the sub-
region, is not a common phenomenon due to sociocul-
tural factors;
" Patriarchal attitudes, where men have always been the
heads of homes and documental evidence of owner-
ship or occupancy of land and housing has always been
given to men, also impede womens access;
" A lack of resources and knowledge about opportuni-
ties for ownership of land by women is also cited as a
problem;
" Commercialisation and privatisation of land and hous-
ing ownership has compromised access to land by
women previously provided under customary land ten-
ure. Market pressure and individual registration pro-
cesses are compromising traditional rights of women,
for instance in matrilineal societies; 44 and
" War in some countries and the prevalence of HIV/
AIDS in almost the entire region has disproportion-
ately affected womens land and housing rights.
There have been some government efforts to improve the
situation, including affirmative action provisions and law
44
Womens
Rights
to
Land
and
Property,
www.unchs.org/csd/documents
reform. However, a great deal more must be done to ensure
that women in the region access and enjoy their rights to land,
housing and property. Legislative provisions that disadvantage
women or discriminate against them need to be amended or
repealed; the trend where women can only access land and
property by virtue of their roles as wives, daughters or sisters
has to be reversed as these are mere secondary rights; imple-
mentation mechanisms need improvement; sociocultural bar-
riers need to be removed; and poverty levels and HIV/AIDS
need to be addressed with a gender and rights perspective in
mind. Larger and more coordinated efforts need to be made
by civil society given that the political will is not always there.
Above all attitudes towards women need to change.
9.2 marital property r ights
Marital property rights law is not always clear a mixture of
legislation of the former colonial rulers of each respective
country and the local customary rules and practices. Generally,
married women are considered to be under the guardianship
of their husbands. This means that even when the woman
buys the house or property, it is often registered in the name
of the husband. 45
Under customary laws
Most women in Southern African are married under custom-
ary law. Marital property rights under custom also depend
on whether the marriage is matrilineal or patrilineal (which
in turn are either matrilocal, where the man moves to the
wifes home, or patrilocal, where it is the wife who moves).
The marital property rules under custom are similar to the
rules of persons married out of community of property. The
property a man comes with into the marriage is to be used
for the benefit of the family. The property the wife comes
with is hers as is that which she acquires during the mar-
riage. However, while men will acquire immovable and larger
kinds of property including housing, women acquire smaller
property and seldom housing. After the marriage is dissolved
45
Women
and
Law
in
Southern
Africa
Research
and
Educational
Trust
(WLSA).
(2001).
Critical Analysis of Womens Access to Land in the WLSA Countries.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
the woman may take her smaller property but is not entitled
to the larger property acquired during the marriage.
Women experience difficulties in accessing marital property,
especially upon dissolution of marriage and often solely de-
pend on the good will of their former husbands. Even where
the customary law court has awarded property settlements
to women, the High and Supreme courts have upturned
such judgments. 46 Many customary laws - for instance Ushi
and Chibwe customary law in Zambia - entitle women to a
reasonable share of the marital property. 47
In some countries, for instance Swaziland and Lesotho,
women are still regarded as legal minors. Husbands have the
marital power to administer the joint property and represent
their wives in civil proceedings. In Botswana, a couple mar-
ried under customary law can actually choose to be exempt
from customary rules to an extent that a customary law mar-
riage can either be in or out of community of property. 48
However a woman married under customary law is held to
be a legal minor and requires her husbands consent to buy
land or enter into contracts. The position of women married
under customary law is summed up in the Zimbabwe High
Court decision in Khoza Vs Khoza 49 where a woman was
deprived of the parties communal land and marital home
built jointly and maintained by her for 23 years because the
marriage was patrilocal.
There are, however, some positive developments. In
Mozambique, the passage of the Family Law of 2004 changed
things for women by recognising customary law marriages
46
Mwiya Vs Mwiya
1975
ZLR;
C
Vs
C
SCZ,
2000
(Zimbabwe).
47
Chibwe Vs Chibwe,
Appeal
No.38/2000
SCZ
(Zambia)
This
was
a
marriage
under
Ushi
customary
law
and
the
woman
also
got
a
house
which
had
been
built
by
the
husband
on
a
plot
that
was
in
her
name
and
a
restaurant
and
an
award
of
$4000
for
damages
arising
from
the
husbands
attempt
to
defraud
her
of
the
house
(see
SCZ
Appeal
No.
123,
1998)
48
Center
On
Housing
Rights
and
Evictions
(COHRE).
(2004).
Bringing Equality
Home: Promoting and Protecting the Inheritance Rights of Women.
p.42.
49
HH
106
see
also
WLSA.
(1997).
Paradigms of Exclusion: Womens Access to
Resources in Zimbabwe. p.54-55.
The
couple
had
been
married
for
23
years
and
the
wife
had
built
and
maintained
the
matrimonial
homestead
during
this
time.
Upon
dissolution
of
marriage
the
court
denied
her
any
right
to
the
matrimonial
home
and
residence
on
grounds
that
the
marriage
was
patrilocal.
She
was
awarded
the
familys
town
house
in
Bulawayo
yet
her
means
of
subsistence
was
farming.
The
matrimonial
home
was
on
communal
land.
and non-formal unions. Now women married under custom
can claim marital property. Although it is a progressive piece
of legislation, it defines a household, which is the basis for al-
location of land, as a set of people living in the same home
under the authority of the head of the household, married or
in de facto union. It has been argued that this leaves room
for the land to be allocated to the man, who under patriarchy
is considered to be the head of the household. 50
Under statute
Most statutory marriages provided can either be in or out of
community of property.
For marriages in community of property all the belongings
and debts of husband and wife are combined into a joint
estate. On dissolution of marriage these are divided equally
to the parties. Marriages out of community of property keep
each partys debts and assets separate, and on dissolution
each takes their portion.
People are generally married out of community of property.
In some countries, for example Zimbabwe, those who choose
to marry in community of property have to sign a special
deed to this effect. Marital power is excluded 51, although
women still have to be assisted in registering property and
property transactions. 52 Where marital power is retained
over women by men for example in Swaziland and Lesotho
it effectively nullifies any rights to property that accrue to
women. This is because property will often be registered
under a husbands name. Women married out of community
of property have to be assisted by their husbands to register
property in Swaziland.
Some positive developments have occurred. In Botswana,
passage of the Deeds Registry Amendment Act 1996, allowed
women married in community of property to register im-
50
Women
and
Law
in
Southern
Africa
Research
and
Educational
Trust-Mozambique.
(1997)).
Families in a Changing Environment in Mozambique,
pp.
132-133
51
The
Married
Persons
Property
Act
of
1929
excludes
marital
power
from
marriages
entered
into
after
1929
52
Section
15
(1)
of
the
Deeds
Registry
Act,
1996.
A
Deeds
Registry
Amendment
Bill
(2001),
which
is
aimed
at
removing
this,
is
still
pending.
0
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Male preference is effected whether under matrilineal or
patrilineal principles. So while under matrilineal societies the
female line is used to inherit, (most of the region is matrilin-
eal) property normally passes to the nearest matrilineal male,
usually a nephew of the deceased person and not necessar-
ily the sons. In patrilineal societies it goes to the sons. The
daughters therefore do not inherit in their own right and
can only be assigned land to use by the inheriting male (who
may be their cousin, brother or uncle). In most societies, the
order of priority is thus always male, with male descendents,
ascendants, siblings, collateral males, then only widows and
daughters. Women are at the end of the inheritance list and
are therefore unlikely to inherit.
Patrilocal marriages, where the woman moves to the hus-
bands homestead, also often make the widow vulnerable to
expulsion from the matrimonial home. In cases of matrilocal
marriage, women inherit their mothers property, but the heir
to a deceased fathers estate is a maternal male. In Islamic
communities, for example in Mozambique, daughters are en-
titled to a quarter of the estate according to Islamic law. This
does not always happen however as customary laws distort
this practice.
Widows inheritance rights are also subject to certain condi-
tions. In some cases, they may only inherit if they comply
with certain customary rituals. 55 Often, where customary
inheritance is controlled by an act, 56 patriarchal attitudes and
male preference and dominance in property ownership and
inheritance are a problem.
Finally, in countries where the constitution still allows the
application of customary law in inheritance matters, such as
Lesotho, Zambia and Zimbabwe, High Court decisions have
ensured the continuation of this practice in spite of the fact
that it clearly discriminates against women. 57
55
Women
and
Law
in
Southern
Africa
Research
and
Educational
Trust-Swaziland,
Inheritance in Swaziland: Law and Practice, 1994,
56-57.
In
Swaziland,
these
rituals
are
traditional
mourning
rites,
(kuzila)
and
kungenwa
(levirate
or
widow
inheritance).
56
For
instance
Namibias
Communal
Land
Reform
Act
2002
read
with
Art.
66
of
the
constitution
57
See
the
Women
and
Law
in
Southern
Africa
Research
and
Educational
Trust-
Zimbabwe.
(2001).
Venia Magayas Sacrifice: A case of Custom Gone Awry.
Venia
movable property in their names and eliminated the require-
ment for women to be assisted in registering land. However
this amendment only limits marital power over immovable
property, so that men still retain it over movable property.
Similarly, in Namibia, the Married Persons Equality Act was
passed so that women married in community of property can
now register property in their own names. In Lesotho, the
Married Persons Equality Bill has been pending enactment
since 2000.
Joint ownership of marital property
Joint ownership by married couples is not common. In
Zambia, for instance, only 12 percent of housing units
transferred were held in joint ownership of couples. 53 In
Zimbabwe, 98 percent of the resettlement area permits of
farming and grazing land are held by husbands and only 2
percent by wives and women married under customary law
cannot hold property jointly with their husbands. On the
dissolution of a marriage there are some difficulties in the
settlement of property due to the kind of laws in operation.
In Malawi there is a provision for jointly held property, but
not for common property. There seems to be a problem in
calculating the womens contribution to common property
because most womens contribution is in reproductive labour,
which is not quantified.
9.3 Inheritance rights
Most of Southern Africa has a dual legal system, mean-
ing property rights are governed by two systems of law.
Consequently the rules of inheritance are derived from both
systems.
Under customary law
Under the customary law system, inheritance is, with a few
exceptions, determined by rules of male primogeniture 54.
This means the oldest son of the senior wife (in cases of
polygamy) is the heir. Ultimately the heir is always a male
relative, never a female.
53
Zambia Daily Mail,
July
5
2004,
p7
54
The
South
African
Constitutional
Court
in
the
case
of
Bhe V Magistrate,
Khayelitsha
and
others,
CCT
49/03
(2005
(1)
BCLR
1(CC))
has
however
ruled
against
this
practice.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
In general, women in Southern Africa have a very limited
right to inherit; they often only have a secondary right to use
the property of the deceased husband or father.
Under statute
The effect of the inheritance and succession statutes in the
region is to vary the provisions under customary law.
In Lesotho, the Draft White Paper on Land does not support
the radical abolition of customary law, but the conversion
of customary law rights to common law rights. 58 Proposals
have been made to the effect that decisions about who should
get rights in land including through inheritance would be de-
termined by who would make the most proactive use of the
land. Currently, one is obliged to show that they have moved
away from customary law to be able to bequeath property to
daughters in a will. However, the Lesotho Land Act of 1997
allows widows to stay in the matrimonial home provided they
do not remarry, thereby giving the widow usufruct rights
and not ownership rights. Therefore women do not inherit
property but acquire a right to use the property.
In Botswana and Namibia, inheritance under the statute
is tied to the marriage regime for people married under
Civil Law (i.e., in or out of community of property). The
Administration of Estates Act 1979 in Botswana allows men
to exclude their wives from the will if the marriage is out
of community of property. In Zimbabwe, the key statute
dealing with inheritance is the Administration of Estates
Act (as amended by Act No. 6 of 1997). The customary law
heir, usually a male, now only receives traditional heirlooms
(the name and traditional knobkerrie) and ownership of the
matrimonial home devolves to the surviving spouse. The rest
of the estate is shared in equal portions between the surviv-
ing spouse and the children of the deceased. The Deceased
Persons Family Maintenance Act is also relevant. Somewhat
Magaya
Case
1998
SC
210;
1999
1
ZLR
100
(Zimbabwe);
Chilala Vs. Milimo
LAT
09/99
(Zambia);
and
Tsosane and Tsosane,
1971-73
Lesotho
Law
Reports
1
(Lesotho).
58
Walker,
C.
(2003).
Land Reform in Southern and Eastern Africa: Key Issues for
Strengthening Womens Access to and Rights in Land. Report
to
FAO.
See
also
www.
oxfam.org.uk
superseded by the Administration of Estates Amendment
Act, it gives usufruct rights to the widow and children.
In Malawi the distribution of the estate depends on whether
the marriage was patrilineal or matrilineal. In patrilineal
marriages, half the share goes to the widow, children and
dependants and the other half to customary heirs; if it was
matrilineal, the wife, children and dependants get two-fifths
and the customary heirs three-fifths. 59 The personal chattels
of the deceased go to the widow, who is also entitled to dwell
in the matrimonial house as long as she remains chaste.
Widows in polygamous marriages have to share the property
meant for the widow. In Zambia each widow is entitled with
her children absolutely (i.e. to the exclusion of other ben-
eficiaries) to her homestead property (property in the house
or room she occupies) and the common property (used by
all family members) is to be shared between the widows. 60
Similar provisions exist in the South African Intestate
Succession Amendment Act (2002) and the Zimbabwean
Administration of Estates Amendment Act 1997. This is
difficult because there is often only one of each item and
unless these are sold, sharing is impossible. If the widows
continue using this common property, problems of mainte-
nance often arise.
Apart from Mozambique, women in informal unions are
not entitled to inherit their deceased partners property. In
Mozambique, women who have lived with their partners for
more than one year are entitled to inherit property.
59
Sections
16
and
17
of
the
Will
and
Inheritance
Act.
See
also
Women
and
Law
in
Southern
Africa
Research
and
Educational
Trust-
Malawi,
Dispossessing the Widow,
2002
60 Section 10 of the Zambian Intestate Succession Act, Chapter 59 of the laws.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Dispossessing widows
Dispossessing widows of property, though a criminal of-
fence in most of the region, is a common practice and a
big problem in the region. 61 This is because the statutes
are often a compromise on the customary law position, or
conflict outright with custom and are therefore not fully ac-
cepted. Traditionally, widows could continue accessing the
property left by their deceased husbands when they joined the
household of the one entitled to inherit, but this practice is
dying out especially due to HIV/AIDS. As a result husbands
relatives are grabbing property from widows, especially those
who are refusing to remain as part of the family (through
widow inheritance). 62
The high incidence of HIV/AIDS has worsened disposses-
sion of widows. The table below illustrates the scale of the
problem.
Table 9.2 HIV/AIDS infection rates in Southern Africa
Country % of adult population
infected with HIV/AIDS5
Angola 5,5
Botswana 38,8
Lesotho 18
Malawi 15
Mozambique 13
Namibia 22,5
South Africa 20,1
Swaziland 33,4
Zambia 21,5
Zimbabwe 33,7
Generally, the epidemic has made women more vulnerable
to disinheritance. In some cases, relatives often delay the
administration of the estate, waiting for the beneficiaries
to die. As a result a lot of widows and their children fail to
61
For
instance
in
Zambia
the
highest
number
of
complaints
made
to
the
police
in
2002
and 2003 were those of depriving beneficiaries of deceaseds property.
62
Conteh,
M.
Le
Beau,
D.
&
Iipinge,
E.
(2004).
Women Face Discrimination From
Cradle to Coffin: Womens Rights to Property in Namibia. Abstract
presented
at
womens
land
rights
workshop
in
Lusaka,
2004
citation
not
yet
available.
See
also
the
United
Nations.
(2004).
Report of the United Nations Secretary Generals Taskforce on Women
and Girls in Southern Africa.
access anti-retroviral therapy because they cannot access the
property (including money) they are entitled to 63.
9.4 Affirmative action policies
The Southern African countries signed the Blantyre
Declaration 64 under which 30 percent of people in decision-
making positions should be women. Apart from Mozambique,
state parties have not yet implemented this declaration.
Affirmative action measures have often been attempted but
have not been entirely effective.
" Women are still underrepresented in elected positions.
In Zambias 2001 elections, only 19 women were elect-
ed into a 120-seat parliament. Women constitute less
than 10 percent of senior government officials. There
are more far more men than women in formal wage
employment; 65 and
" Many positive laws that address affirmative action is-
sues are yet to be enacted due to the reluctance of
law-making institutions. In Lesotho for instance, the
Married Persons Equality Bill, which is meant to abol-
ish womens minority status and allow them to register
land in their names, has been pending since 2000.
There have been some positive developments. In Mozambique,
the Land Act contains a clause entitling women to property
rights. The Family Law in Mozambique also recognises cus-
tomary marriages and informal unions between men and
women. Some governments have made efforts to allocate
land to female-headed households. In Zambia, the draft land
policy provides for 30 percent of all land allocated being
reserved for women. In Namibia, there are schemes to as-
sist female students who have financial problems to improve
enrolment, retention and completion of education.
Implementation is a major stumbling block to these initiatives.
In Zambia, for instance, land allocated to women was far
away from the city, was undeveloped and without any serv-
ices. Service charges and survey fees were also unaffordable
63
For
instance
in
Zambia.
64
SADC
declaration
on
Gender
and
Development
1997.
65
Zambia
Association
for
Research
and
Development
and
SARDC-WIDSAA.
(1998).
Beyond Inequalities: Women in Zambia. P. 25.
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
to many women. A regional audit of the states implemen-
tation of the Southern African Development Community
Declaration on Gender and Development and its addendum
on violence against women and children shows a relatively
poor picture, 66 yet the compliance period has come to an
end (1987-2005).
9.5 Best legislation, policies and practices on
gender issues
Some of the legal and policy provisions and practices are
good, and replication in other countries should be consid-
ered. The following fall into this category:
" Provisions in Mozambiques Land Act 1997 and the
Family Law that recognise the right of women to own
land and allow for the joint registration of property;
" The initiative by Mozambiques National Survey and
Mapping Department to give women applicants title in
the absence of male applicants, contrary to local cus-
tom;
" A mass sensitisation programme on womens land
rights and the initiative to integrate it into literacy pro-
grammes were good practices, as was the joint initia-
tive in Namibia by the United Nations Food and Ag-
riculture Organisation, local authorities and NGOs to
guarantee womens rights through access to informa-
tion and resources;
" The draft land policy in Zambia, which provides for
30 percent of all land demarcated to be set aside for
women, and the remaining 70 percent to be competed
for by both men and women as an affirmative action
measure;
" Law reform proposals in Lesotho for the harmonisa-
tion of laws and the repeal of discriminatory provi-
sions that hamper womens property rights;
" Upgrading schemes for informal settlements and
slums are a good practice. Special attention, however,
needs to be paid to women so that they can benefit
from these schemes. The urban upgrading scheme
of Lesotho is a good example, where female-headed
households benefited; and
66
See
http://216.239.59.104/custom?q=cache:19QFIm85YyoJ:www.genderlinks.org.
za
" The Statutory Housing and Improvements initiative
in Zambia where people in informal settlements were
given licences is also a good practice because they can
use these as collateral for credit to improve their hous-
ing situation.
10 racial and ethnic equality
In countries like Namibia, South Africa and Zimbabwe stark
inequalities remain between the patterns of land holding by
the descendants of white settlers and those of indigenous
Africans. This is primarily because of the harsh restrictions on
urban land ownership by blacks implemented prior to inde-
pendence. The high cost of acquiring land in these formerly
white areas, together with well-off neighbourhood resistance
to the settlement of poor people close to their homes, has
meant that these unequal patterns of land ownership persist.
In South Africa, the 1995 Development Facilitation Act was
enacted to encourage local government planning towards
integration, but its effect has been limited to date.
Also largely as a legacy of colonial divide and rule policies,
there are some examples of ethnic tension between various
groups, especially in relation to access to land and housing.
In some cases these tensions are reflected in particularly in-
secure tenure rights for certain ethnic minorities, such as the
San in Botswana. Generally however, the process of urbani-
sation has resulted in communities that are more ethnically
diverse than in the past.
In addressing the range of issues relating to race, gender
and ethnicity it is important to note that governments in the
region vary widely. Some are guided by, and generally follow,
progressive new constitutions, while others are guided by
more traditional and conservative philosophies. These dif-
ferences tend to manifest themselves starkly in the land and
housing sector, especially insofar as the rights of women are
concerned.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
11 regional recommendations
and priorit ies:
Because of the regions diversity it is not appropriate to make
detailed recommendations on this scale. Detailed recommen-
dations are made at the conclusion of each country report.
However, it is clear that there are a number of initiatives on a
regional level that could strengthen land rights, and especially
those of women, and which could also benefit from the sup-
port of organisations such as UN-HABITAT. The various
instances of good practice emerging from the region could
form the basis for a well-focused testing and rollout of these
experiences on a wider scale.
Initial recommendations for further action within the region
are set out below:
(1) Womens land, housing and property rights are
compromised by discriminatory laws. There is
need for law reform. The relevant statutes need to be
harmonised and updated and the international instru-
ments need to be domesticated. Constitutions should
make unequivocal commitments to gender equality.
(2)Develop country-specific, step-by-step strategies
for improving security of tenure of residents of
informal settlements, particularly women. The as-
sistance and support of UN-HABITATs Global Cam-
paign for Secure Tenure as well as the Cities Alliances
Cities without Slums programme will be essential
for the realisation of this objective. The recently es-
tablished African Ministerial Conference on Housing
and Urban Development 67 (AMCHUD) is setting up
a secretariat that should provide continental leadership
in the development of innovative urban land manage-
ment practices.
(3) Clarify the legal basis for tenure where the formal,
informal and customary tenure systems overlap.
While there can never be a quick fix to the problem of
overlapping tenure systems, there is a great deal to be
done by both national and local governments to clear
up the existing confusion. This needs the development
of effective conflict-resolution mechanisms as well as
67
For
more
on
the
AMCHUDs
Durban
Declaration
and
the
Enhanced
Framework
for
Implementation
see
the
UN-Habitats
website
www.unhabitat.org/amchud.
the provision of alternative land for persons who may
have to move as a result of conflicting rights to the
same land. It will be very useful to model efforts in this
regard on the Namibian and Zambian good practices
relating to the creation of local level registries and flex-
ible new tenure forms for residents of informal settle-
ments.
(4) Design pragmatic and equitable strategies for
managing informal settlements. This is an ongoing
challenge, also without a likely quick fix. Nevertheless
it is imperative that countries in the region accept that
informal settlements are a reality that cannot be wished
away. Instead they have to be integrated into the exist-
ing urban fabric. Upgrading of these settlements will a
key element in the success of these strategies.
(5) Accommodate anticipated effects of migration,
social changes and HIV/AIDS in all policies and
plans. Data collection and information management
techniques have historically been very weak in the
region. The impact of HIV/AIDS on womens land,
housing and property rights for instance needs to be
extensively investigated. Gender disaggregated data
needs to be complied. Increasingly, however, data col-
lection has grown stronger. It is essential that resources
and capacity are developed, with the assistance of de-
velopment partners.
(6) Strengthen regional social movements and NGOs
involved in the urban land sector. The region is
poorly served by social movements and NGOs, espe-
cially ones operating at the regional scale. Prevailing
poverty, as well as the so-called brain drain evident
throughout Africa, necessitates the focused support
and assistance of development partners.
(7) Strengthen organs of the African Union to ex-
change information on best practices and estab-
lish regional standards for urban tenure security.
AMCHUD provides a timely opportunity to build net-
works between African Union member states. The sec-
retariat, supported by UN-Habitat, will provide techni-
cal and administrative assistance to member states.
(8) Encourage donor support to national govern-
ments to develop dedicated urbanisation policies.
To date most donor support has been directed towards
rural development in Africa. New institutions such
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
as the New Partnership for Africas Developments
Cities Programme, the Commission for Africa and
AMCHUD provide vehicles for concerted action to
ensure that donor support is focused on empowering
Southern African countries to meet their urbanisation
challenges.
(9) Support initiatives to develop new, innovative and
appropriate practices for land registration and
cadastral survey in the region, building on some
emerging good practices. UN-HABITAT is shortly
to launch a global network of Land Tool Develop-
ers and it is imperative that this network reflects the
innovative practices emerging from Southern Africa,
as well as promoting greater understanding within the
region to effective innovations elsewhere in the world.
Specific efforts, perhaps through the organs of AM-
CHUD, should be made to ensure that the region ben-
efits from the activities of this network.
(10) Focus governments attention on ensuring a more
prominent place in poverty reduction strategy pa-
persformoreequitableandefficientlandmanage-
ment and gender issues. In the recent AMCHUD
Durban Declaration African countries committed
themselves to prioritising the potential of good urban
land management in economic and social develop-
ment, as well as poverty reduction and mainstream-
ing these in their poverty reduction strategy papers.
This initiative deserves to be supported and strength-
ened.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Land law reform in Namibia
introduction
Origins of report
This is one of four reports that examine in detail land tenure
systems and law reform in selected southern African coun-
tries: Lesotho; Mozambique; Namibia; and Zambia. The
preceding regional overview provides a broad summary of
issues across the region, i.e. over and above the four coun-
tries selected for individual study, and highlights key themes
upon which the four country studies are based. The country
reports flow from an extensive examination of laws, policies
and authoritative literature, in addition to a wide range of
interviews. Each country report is authored by a resident spe-
cialist consultant. UN-HABITAT, the sponsor of the project,
conducted a workshop to set the research agenda.
Themes
In this report examination of land tenure has been considered
broad enough to cover matters regarding housing, marital
property issues, inheritance, poverty reduction and local gov-
ernment. An additional important aspect of the study is its
focus on gender and its relationship to each of these issues.
Structure
The report is structured to capture the wide-ranging topics
mentioned above. Standard headings have been used across
all four reports, with some inevitable variation.
The first part of the report sets the scene for the study, pro-
viding a brief historical background, followed by a snapshot
of how the governments and legal systems of the country
function in relation to the subject matter. There is a discus-
sion of the socioeconomic conditions. The section concludes
by examining the level of civil society activity in the countries
of study.
The next section, on land tenure, is the core of the report,
defining the various types of land in the country and the
relevant constitutional provisions, laws and policies. The
chapter also attempts to define what rights accrue to the
holders of various types of land.
The next section examines housing rights, including related
matters such as the accessibility of services like water and
sanitation. It deals with constitutional matters and relevant
laws and policies.
The next subject area is inheritance and marital property is-
sues. The initial emphasis here is on determining whether
a constitutional provision that prevents discrimination on
grounds of gender is provided. Issues of marital property
rights hinge on whether both men and women enjoy equal
property rights under the law. An important matter that in-
fluences this right is the applicability of customary law an
issue of enormous importance in southern Africa.
A section is then dedicated to examining the countrys
poverty reduction strategies or similar initiatives and their
relationship to the primary themes of the report.
The section on land management systems maps the institu-
tions involved in land management and administration, and
how far their functions filter down to the local level. This
section also analyses the relationship this formal bureaucracy
has with informal settlements and their dwellers. The section
concludes with a selection of court decisions on land and
housing rights cases.
Local laws and policies are then scrutinised to determine
how they address land and housing rights, as well as their
relationship with national laws.
Implementation of land and housing rights is the next topic
of discussion. It addresses how successful the actual delivery
of these rights has been.
The final sections draw on information provided in the pre-
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
vious parts of the report. The best practices section tries to identify any positive and possibly replicable practices that have
emerged. The conclusions section infers from the previous section, identifying problems and constraints to land and housing
rights delivery. The final part of the report makes recommendations. These are designed to be realistic, taking into account
the specific conditions in the subject country.
Figure 1.0 Map of Namibia
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Background
Figure 1.1 Map of Namibia showing police zone
1.1 Historical background
During the German colonial period Namibia, then called German South West Africa, was divided into two parts. The Police
Zone which was cleared for white settlement and the northern and the northeastern areas, where reserves or home-
lands were created for the indigenous population. Movement outside of these areas was restricted. 68 After German armed
forces surrendered on July 9 1915, Namibia became a British protectorate, with the British kings mandate held by South
68
The
boundary
that
divided
the
Police
Zone
from
the
northern
and
northeastern
parts
extended
from
the
Atlantic
Ocean
to
Botswana
in
a
northward-arching
semicircle.
Administration
in
the
homelands
was
left
in
the
hands
of
the
traditional
leaders.
Communities
north
of
the
Police
Zone
were
only
formally
incorporated
into
the
colonial
administration
after
1900.
Owamboland
and
the
Caprivi
Strip
for
example,
were
only
incorporated
in
1908
and
1910
respectively,
when
it
became
necessary
to
create
a
source
of
cheap
labour
for
colonial
economic
activities
inside
the
Police
Zone.
See
United
Nations
Institute
for
Namibia,
(1988).
Namibia:
Perspectives
for
National
Reconstruction
and
Development,
pp.
30
and
31.
30
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Africa. Land held by the German colonial administration
became Crown or state land of South Africa. 69
The urban policy of both the German and South African
colonial administrations was to create exclusively white towns
and cities. Throughout the colonial era, both public and pri-
vate investments were concentrated in these urban centres.
Blacks were allowed to move in, mainly as contract labourers,
and lived in separate areas or townships with inferior social
services. Permanent black urbanisation was discouraged,
while a number of discriminatory laws, such as pass laws
and prohibition of urban land ownership, controlled most
aspects of black residents lives. 70 The development of
informal settlements was also strictly regulated by apartheid
policies. For example, residential growth in Katutura, one of
Windhoeks only black townships at the time, was prohibited.
As a consequence, the formal low-cost houses in Katutura
became heavily overcrowded before independence. 71
With independence in March 1990, apartheid policies were
abolished, and the Namibian Constitution introduced the
right of all Namibians to reside and settle in any part of the
country. 72 A dramatic increase of informal settlement in
Windhoek resulted, mostly around Katutura. Many of those
who lived in overcrowded conditions in Katutura moved
onto vacant land nearby, and many others migrated in from
impoverished rural areas. 73 Newly settled urban residents
lived in unhygienic conditions, with no easily accessible water
or sewerage facilities.
69
Under
the
terms
of
the
Treaty
of
Versailles
and
the
South
African
Parliaments
South
West
Africa
Act
49
of
1919.
70
Christensen,
S.F.
Wolfgang
,
W.
&
Hojgaard,
P.D.
(1999).
Innovative
Land
Surveying
and
Land
Registration
in
Namibia.
The
Development
Planning
Unit,
University
College,
London,
p.
5.
71
Gold,
J.
Muller,
A.
&
Mitlin,
D.
(2001).
The
Principles
of
Local
Agenda
21
in
Windhoek:
Collective
action
and
the
urban
poor.
Urban
Environment
Action
Plans
&
Local
Agenda
21
Series
Working
Paper,
Human
Settlements
Programme,
IIED,
London,
p.
24.
72
Art.
21(1)(h).
73
A
2001
survey
conducted
in
Windhoeks
informal
settlements
indicated
that
residents
had
lived
in
these
areas
for
an
average
of
5.2
years
and
in
Windhoek
itself
for
12.4
years.
These figures suggest that informal growth is driven more by people who previously lived
in
overcrowded
conditions
in
the
city
searching
for
more
space
for
themselves
and
their
families,
and
less
by
immigration
from
the
countryside
to
the
city.
Despite this, Namibia has never developed large urban cen-
tres. This is because of the relatively small population and
environmental conditions that are not favourable to large
concentrations of people. Namibia does not have sufficient
economic surpluses 74 to maintain specialised urban func-
tions. In addition, regional trade and migratory routes do not
support the growth of large-scale urban areas. 75
1.2 Legal system and governance structure
The legal system in Namibia is a combination of Roman-
Dutch law, common law inherited from South Africa, old
English law and customary law prevalent in rural areas.
The Government of the Republic of Namibia is established
as a democratic and unitary state founded upon the principles
of democracy, the rule of law and justice for all. 76 The main
organs of the state are the executive, legislature and judiciary.
The executive
The Constitution creates an executive, headed by the president,
who is assisted by the cabinet. The president is obliged to act
in consultation with the cabinet. 77 In 2004, 14.2 percent of
all cabinet members were women. The president is elected
by direct popular vote for a term of five years and can be re-
elected for a second term of office. 78 A number of statutory
policy bodies advise the president on relevant matters of the
state. These include the Judicial Service Commission and the
National Planning Commission.
74
In
1995
Namibias
gross
domestic
product
was
N$11.47
billion
(US$3.1
billion)
with
a
per
capita
income
of
N$7,387
($1,996),
triple
the
African
continents
average.
These
statistics,
however,
conceal
the
fact
that
Namibia
is
one
of
the
worlds
most
unequal
societies. The poorest 90 percent consume significantly less than the remaining minority.
Republic
of
Namibia,
(1998).
Programme Review and Strategy Development Report,
United
Nations
Population
Fund,
p.
2.
75
Tvedten,
I.
&
Mupotola,
M.
(1995).
Urbanisation and Urban Policies in Namibia.
NEPRU
Working
Paper
no.
47
Windhoek
Namibia,
p.
7.
76
Art.
1
of
the
Constitution
of
Namibia.
77
The
cabinet
consists
of
the
president,
the
prime
minister,
deputy
prime
minister
and
ministers
appointed
by
the
president.
Together
they
implement
the
policies
guided
by
the
Constitution
and
acts
of
parliament.
The
prime
minister
is
the
chief
advisor
to
the
president and the overall coordinator of the government offices, ministries and agencies.
78 Art. 29(3).
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
The territory of Namibia is divided into 13 administrative
Regions, which in turn are divided into 102 constituencies. 79
A Governor heads each Region, while elected Regional
Councillors head the constituencies and local councillors
form the Town, Municipal and Village Councils. 80 Currently
there is only one woman Governor - the Governor of
Omaheke Region - and only 6 out of the 102 Regional
Councillors are women. 81 According to the Association for
Local Authorities in Namibia (ALAN), there are 37 local
authorities, municipalities and village councils in Namibia.
These include 16 municipalities, 10 towns and 11 villages.
Municipal councils have between 7 and 15 members, town
councils between 7 and 12 members and village councils have
5 members. In total, there are 140 councillors representing
these 37 local authorities, municipalities and village councils,
of which 36 (25%) are women. Local councillors are elected
directly every five years.
Traditional authorities shall exercise their powers, duties
and functions under customary law as well as give support
to the policies of the Government, regional councils and
local authority councils, while refraining from any act, which
undermines the authority of such institutions. 82 However
this supportive role is not always clear or well defined.
Efforts to co-ordinate functions between traditional, local
and regional authorities have so far not been very successful,
79
The
delimitation
and
governance
of
regions
by
Regional
Councils
and
Local
Councils
occur
in
accordance
with
Articles
102
to
111
of
the
Constitution.
The
Regional
Councils
Act,
Act
22
of
1992
and
the
Local
Authorities
Act,
Act
23
of
1992
further
regulate
establishment,
powers,
duties
and
functions
of
these
councils.
Functions
relating
to
the
management
and
development
role
of
Regional
Councils
are
stipulated
in
section
28
of
the
Regional
Councils
Act.
These
include:
regional
development
planning
in
co-operation
with
the
National
Planning
Commission;
the
establishment,
management
and
control
of
settlement
areas;
and
assisting
local
Authority
Councils
in
the
exercise
of
their
functions.
80
Regional
Governors
are
elected
by
Regional
Councillors.
81
Information
obtained
from
the
Association
of
Regional
Councils
in
Namibia
(20
July
2004).
82
See
Section
16
of
the
Traditional
Authorities
Act,
25
of
2000.
The
Traditional
Authorities Act defines a chief as a supreme leader of a traditional community who
is-
(1)
from
a
royal
family
of
a
traditional
community
and
who
has
been
instituted
as
the
chief
or
head
of
that
traditional
family;
(2)
recognised
by
the
Minister
of
Regional
and
Local
Government
as
a
chief
or
head
of
a
traditional
community
in
terms
of
section
6
of
the Act. (Section 1 read with sections 4 (1) (a) and (6)). A head or headman is defined
in
the
same
way,
with
one
difference:
a
head
must
have
been
designated
as
such
by
a
traditional
community
and
must
be
a
member
of
a
traditional
community
and
appointed
as
the
head
of
a
traditional
community
(Section
1
read
with
Sections
4(1)
(a)
4(1)
(b)
and
(6)). Chiefs often have a more senior position in their community and have a final say in
the
election
of
heads.
despite central government efforts to do so and despite the
fact that standards as reflected in the Namibian Constitution,
the Regional Council Act, the Local Authorities Act, the
Traditional Authorities Act and the Traditional Leaders Act
have brought a new political dispensation to post-independ-
ence Namibia.
The President recognises the designation of a traditional
leader by publishing the information in the Government
Gazette. No chief or head of a traditional community will
get government recognition if such designation has not been
published in the Gazette. 83
Most Town Councils are in debt and have no capacity. During
2004, towns such as Okakarara, Katima Mulilo, Usakos and
Karibib had their electricity and/or water supply cut or re-
duced because of non-payment. The lack of development
in most towns currently undermines the authority of the
Town Councils and their ability to raise revenue from tax
and as a result may jeopardise their political legitimacy. All
local authorities (villages, towns and municipalities) are given
certain powers automatically. 84 However, villages may only
exercise these powers if the Minister of Local Government
and Regional Government and Housing deems that they are
ready to do so. Central government can step in to help towns
and villages that are having trouble providing adequate serv-
ices to their residents.
The legislature
The legislature makes laws, approves the executives budget
and exercises control over the government. The legislature
83
See
Section
6
of
the
Traditional
Authorities
Act.
A
chief
or
a
head
may
not
hold
political office unless s/he takes leave of absence from his or her position as chief or
head.
The
central
government
provides
allowances
to
the
chief
or
head
of
a
traditional
community
and
up
to
six
senior
traditional
councillors
and
six
additional
traditional
councillors.
84
Relevant
powers
include
-
Supply
of
water,
sewerage
and
drainage
systems
and
refuse
disposal
-
Purchase
and
sales
of
land
and
buildings
-
Operate
farms
on
town
lands
-
Set
up
housing
schemes
-
Setting
fees
for
services
provided
and
accept
donations
or
borrow
money
from
sources
inside
Namibia.
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
consists of two houses: the National Assembly and the
National Council.
The 72 voting members of the National Assembly are di-
rectly elected for a five-year term on the basis of proportional
representation, and the president appoints an additional six
non-voting members. . In 2005, 26.9 percent of all parlia-
mentarians were women. 85
The National Council consists of two members from each
of the 13 geographic regions of Namibia. These 26 mem-
bers are directly elected for a term of six years. The National
Council reviews bills passed by the National Assembly and
recommends legislation on matters of regional concern to
the National Assembly. 86
The judiciary
The courts consist of a Supreme Court, a High Court and
Lower Courts Magistrates, Regional and District Labour
Courts. 87 Namibia has an independent judiciary, which
means that no member of the cabinet or legislature, or any
other person, shall interfere with its functions.
The Supreme Court is the highest court and is headed by
the chief justice, who is appointed by the president upon the
recommendation of the Judicial Service Commission. 88 The
Supreme Court hears and adjudicates upon appeals from the
High Court, including on constitutional issues. 89
The High Court is the second-highest court. It consists of the
judge-president and other judges appointed by the president
on the recommendation of the Judicial Service Commission.
85
Inter-Parliamentary
Union,
Women in National Parliaments,
30
April
2005.
Available
on:
http://www.ipu.org/wmn-e/classif.htm
86
Art.
63
and
74
of
the
Constitution
outline
the
wide-ranging
functions
and
powers
of
the
two
houses
of
parliament.
87
Art.
78
of
the
Constitution.
88
The
Judicial
Service
Commission,
as
established
as
per
Art.
85
of
the
Constitution,
makes
recommendations
with
regard
to
all
judicial
appointments
and
disciplinary
actions
against a judge. It consists of the chief justice, or the presiding officer of the Supreme
Court,
a
judge
nominated
by
the
president,
the
attorney-general
and
two
representatives
from
the
legal
profession.
89
The
Supreme
Court
also
deals
with
matters
referred
to
it
for
decision
by
the
attorney-general
and
with
others
as
may
be
authorised
by
act
of
parliament.
There are 11 full-time judges of whom only two are female. At
the time of writing, seven of the judges are black. The High
Court has the jurisdiction to hear and adjudicate on all civil
disputes and criminal prosecutions, including constitutional
issues, as well as appeals from lower courts. Cases concerning
land and housing disputes are referred to a Magistrates Court
or the High Court. 90 Issues of inheritance, succession and
bankruptcy are dealt with at the High Court. 91
The Agricultural (Commercial) Land Reform Act makes pro-
vision for the Land Tribunal. It adjudicates on prices offered
for expropriated commercial farms, although it is yet to be
used for this purpose.
Chapter 10 of the Constitution provides for an ombudsman,
who reports to the National Assembly. The office investigates
any violations of fundamental rights by an organ of state or
a private institution.
Local government
Namibia is divided into 13 administrative regions, which in
turn are divided into 102 constituencies. 92 A governor heads
each region, while elected regional councillors head the con-
stituencies and local councillors form the town, municipal
and village councils. 93 Currently there is only one woman
governor. 94
There are 37 local authorities: 16 municipalities, 10 towns
and 11 villages. Municipal councils have between 7 and 15
members; town councils between 7 and 12 members; and
90
Section
28(1)(g)
of
the
Magistrates
Court
Act,
Act
32
of
1944
gives
jurisdiction
in
respect
of
any
person
who
owns
immovable
property
in
respect
of
such
property
or
in
respect
of
mortgage
bonds
thereon.
91
For
the
time
being,
Magistrates
Courts
deal
with
those
inheritance
cases
as
provided
for
under
the
Native
Proclamation.
92
The
delimitation
and
governance
of
regions
by
regional
councils
and
local
councils
occur
in
accordance
with
Articles
102
to
111
of
the
Constitution.
The
Regional
Councils
Act,
Act
22
of
1992
and
the
Local
Authorities
Act,
Act
23
of
1992
further
regulate
establishment,
powers,
duties
and
functions
of
these
councils.
Functions
relating
to
the
management
and
development
role
of
regional
councils
are
stipulated
in
section
28
of
the
Regional
Councils
Act.
These
include:
regional
development
planning
in
co-operation
with
the
National
Planning
Commission;
the
establishment,
management
and
control
of
settlement
areas;
and
assisting
local
authority
councils
in
the
exercise
of
their
functions.
93
Regional
governors
are
elected
by
regional
councillors.
94
Information
obtained
from
the
Association
of
Regional
Councils
in
Namibia,
July
20
2004.
33
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
village councils have 5 members. In total, there are 140 coun-
cillors representing these 37 local authorities, municipalities
and village councils, of which 25 percent are women. Local
councillors are elected directly every five years. 95
1.3 Socioeconomic context
Namibia, with an approximate geographical land area of
824,200km², is southern Africas most sparsely populated
and arid country. The estimated population of Namibia in
2001 was 1,830,330, 96 with a resulting population density of
about two persons per square kilometre. While this would
seem to provide a basis for an orderly agricultural land re-
form process, Namibias land is very dry and suited only to a
few types of agriculture. 97
Poverty
Namibia has a relatively high unemployment rate of 31 per-
cent. Thirty five percent of the population survive on less
than US$1 a day. The difference between rich and poor is
extreme, giving Namibia one of the highest rates of inequal-
ity in the world. 98 This is a contributing factor to the rural-
urban migration process, and builds particular challenges into
both urban land reform and development policy. Women
remain generally disadvantaged in terms of economic well
being. In 1998 real GDP per capita for women was N$3,513
($586) compared to N$6,852 ($1,142) for men. 99 Women
occupy fewer high positions in the economy and administra-
tion, and salaries for female employees trail behind those of
their male counterparts. This is despite the fact that womens
life expectancy (50 years) and combined school enrolment
95
Ibid.
96
Republic
of
Namibia.
(2003).
2001 Population and Housing Census.
National
Report,
Basic
Analysis
with
Highlights,
p.
18.
The
World
Fact
Book
estimates
that
the
current
population
of
Namibia
is
1,954,033.
These
estimates
take
into
account
the
effects
of
excess
mortality
due
to
AIDS.
The
World
Fact
Book.
(2004).
http://www.cia.
gov/cia/publications/factbook/geos/wa.html.
97
Harring,
S.
&
Odendaal,
W.
(2002).
One day we will all be equal& A socio-legal
perspective on the Namibian land reform process.
Windhoek:
Legal
Assistance
Centre,
p.
8.
98
World
Bank,
(2004).
African Development Indicators.
99
Research
and
Teaching
on
Human
Rights.
(undated).
Gender Issues and
Democracy in Southern Africa,
Human
Rights
and
Documentation
Centre
University
of
Namibia,
http://www.hrdc.unam.na/home.htm,
(84 percent) are higher than those of men (48 years and 80
percent respectively). 100
Urbanisation
In 2001, an estimated 33 percent of the Namibian popula-
tion lived in urban areas, an increase of 5 percent since the
1991 census. 101 Windhoek is the largest city in Namibia with
a population of 233,529. It has witnessed high rural-urban
migration since independence. 102 With an annual urban
growth rate of 5.4 percent, of which 3.9 percent is in-migra-
tion, a substantial increase in serviced land delivery is needed,
particularly in the citys low-income housing areas. 103
Urban areas in Namibia have more people in the economi-
cally active age groups than rural areas. 104 This suggests that
people in economically active age groups are migrating from
rural to urban areas in search of work. Informal settlements
have grown in urban areas, and shacks have become the sec-
ond most common form of dwelling in urban areas. 105 In
2000, the informal settlement population living in Windhoek
was estimated at 57,000 people. 106 Informal settlements
have also formed near farms. These are inhabited by former
farm workers who have lost their jobs. No legislation exists
that provides long-serving farm workers with any form of
secure tenure rights.
HIV/AIDS
In 1999, HIV/AIDS was the number one cause of death,
accounting for 26 percent of all deaths in hospitals. In
2000 the prevalence rate was estimated at 20 percent, while
22 percent of deaths in hospitals for all ages in 2001 were
caused by AIDS. 107 Some 70,000 persons were diagnosed
with HIV and 2,868 died from AIDS. Life expectancy is set
100
Op.
cit.,
103.
101
Op.
cit.
30,
p.
4.
102
Ibid,
p.
21.
103
Op.
cit..,
76,
p.
24.
104
Ibid,
30,
p.
24.
105
Ibid,
p.
50.
106
World
Bank.
(2002).
Upgrading Low Income Urban Settlements: Namibia Country
Assessment Report.
p.
22.
107
World
Fact
Book.
(2004).
http://www.cia.gov/cia/publications/factbook/geos/
wa.html.
See
also
Republic
of
Namibia.
(2003).
Epidemiological Report: HIV/AIDS & STI
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
to drop between 2005 and 2010 to just 45 years. The highest
prevalence of HIV/AIDS in Namibia is in the urban areas
of Oshakati (34%), Walvis Bay (29%), Katima Mulilo (29%)
and Windhoek (23%). 108
Women bear a disproportionate burden of the epidemic.
Women aged 15-24 years show an HIV prevalence of 18.8-
20.8 percent, whereas the corresponding estimate for young
men is 7.9-10.4 percent. 109 Women tend to get infected at a
younger age than men. There are several factors contributing
to this picture. Womens biology makes them more suscep-
tible to HIV infection, and a range of behavioural patterns
and womens status in the overall social fabric reinforce the
trend.
1.4 Civil society
NGOs and community based organisations were actively
discouraged and suppressed by the pre-independence regime.
Today it is recognised that civil society organisations play
an important role in the development and management of
informal settlements in urban areas: lobbying on behalf of
vulnerable groups, providing financial skills and offering legal
aid to those who cannot afford it.
In the densely populated informal settlements in and around
Windhoek, Swakopmund, Walvis Bay and some of the north-
ern communal towns, NGOs such as the National Housing
Action Group (NHAG) and the Legal Assistance Centre
(LAC) play important roles in terms of lobbying on behalf
of informal settlers housing rights, building financial skills
and offering legal aid.
Legal Assistance Centre (LAC) and paralegal
training
When the LAC had to close down some of its Advice Offices
due to financial constraints, an urgent need existed to train
paralegals to take over the functions of these offices in order
for the year 2001.
Ministry
of
Health
and
Social
Services,
National
AIDS
Coordination
Programme,
p.
8.
108
Ibid
at
10
and
11.
109
Ibid,
p.13.
to give legal advice to their communities. Together with com-
munity organisations and activists, the LAC has implemented
an extensive national training programme to train paralegals.
In 2001 the LAC initiated the Community Paralegal Volunteer
Project with the aim of establishing a paralegal resource
base in most parts of Namibia. The ultimate aim is to set
up community advice centres where people could obtain
free legal advice. The LAC provides legal knowledge and
general skills to paralegal volunteers. The LAC has also been
instrumental in the establishment of the voluntary Namibia
Paralegal Association, which looks after the rights, duties and
interests of paralegals. Between 2001 and 2003 a total of 280
paralegals were trained. 110 Currently the LAC is attending
to the problems and experiences of paralegals operating in
their communities and provides them with advice on legal
issues on an ongoing basis. Paralegals work in all areas of the
country, whether it is rural or urban, but their priority focus is
on the neediest communities. Paralegals also play a mediatory
role in many cases, giving advice for example on maintenance
issues etc.
Womens Action for Development (WAD)
WAD is a self-help organisation that works primarily with
rural women. Established in 1994, it is active in six regions
and plans to expand. WAD helps its members establish
Womens Voice bodies. These bodies, which consist of
seven members per region, address social problems within
their communities by working through the decision-makers,
community leaders and traditional authorities. They also take
up membership in various development committees and
encourage women to stand as candidates in elections.
110 A first introductory training focuses on the Constitution and human rights. An
advanced
training
focuses
on
criminal
procedure
law.
In
addition,
paralegals
get
training
on
topics
such
as
writing
a
will,
HIV/AIDS
and
gender
and
law
related
topics.
Paralegals
are
usually
persons
who
play
an
active
role
in
their
communities.
Efforts
are
made
to
keep
a
gender
balance.
After
the
training,
they
are
sent
into
their
communities
to
test
their
skills.
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Namibia Housing Action Group (NHAG)
This is an umbrella organisation for low-income housing
organisations formed in November 1992. The organisation
is managed by a board consisting of representatives of
member groups. NHAGs main goal is to strengthen the
member groups activities to obtain housing for low-income
households. Other objectives include: 111
" Supporting members in negotiations over evictions,
land issues and loans;
" Advocating for the needs of low-income households
in the formulation of housing policies, municipal regu-
lations and standards;
" Providing training in construction, brick-making and
alternative building methods;
" Stimulating awareness and sharing experience of hous-
ing development;
" Establishing links between domestic and international
organisations; and
" Providing and facilitating other services to assist mem-
bers in obtaining shelter.
NHAG members have applied for loans from the Build
Together Programme of the MRLGH, which has been in
operation since 1992. Since 1995 the Twahangana Loan Fund
has provided such loans.
111
Republic
of
Namibia.
(
1995).
The
First
National
Development
Plan.
National
Planning
Commission,
Windhoek,
vol.
1,
p.
463.
Box 1.1 The Twahangana Loan Fund
In addition to the Twahangana Loan Fund, a savings scheme
of a similar name has been initiated by NHAG members.
The members save in their own groups and borrow from
their savings for emergencies and to improve their income.
These savings are used to acquire other resources like land
and loan funds. 112
Shack Dwellers Federation of Namibia (SDFN)
The SDFN was established in October 1998 by the 30 hous-
ing member groups of the NHAG. The SDFN is a network
of housing saving schemes, aiming to improve the living
conditions of low-income people living in shacks, rented
rooms and those without any accommodation, while pro-
moting womens participation. Following the establishment
of the federation this initiative experienced dynamic growth,
with 220 saving groups in 43 urban groups to date.
The SDFN is involved in a number of activities:
" It acts as a treasury for the regional and national activi-
ties, ensuring equal distribution of resources among
112
Muller,
A.
Interview
with
the
author,
July
2004.
Twahangana means united in Oshiwambo. In 1995 the Twahangana Loan
Fund was established as a mechanism to strengthen the capacity of NHAG
member groups to manage money and to provide financial access to the poor.
NHAG administers the fund, which has received donations from Norwegian,
German and Spanish donors over the past decade.
The main features of the fund are to provide housing, small business and
service loans. The main conditions for savings group members to obtain a
loan are based on:
- Their active participation in the saving groups activities;
- How much the member can afford per month;
- The cost of the house; and
- Five percent of the house loan amount being paid as a deposit.
Regional loan facilitators from the saving scheme network inspect the loan
applications to ensure that the right procedures are followed and approve
the groups application. A contract is signed with each member group and
the individual. The groups deposit the money directly into the bank, and the
office records the payment and informs each region about the status of the
repayments.
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
thorities have been very slow in responding to the survey. As
regional councils lack proper recordkeeping systems, they
find it difficult to provide correct answers to questions such
as the percentages and types of construction materials used
in building houses. There is therefore a need to train person-
nel to establish an information database. In addition, a lack
of coordination at central government level often leads to
the duplication of activities and the waste of resources.
While the promotion of indigenous building materials and
designs by the Habitat Research and Development Centre
must be applauded, the emphasis on owning a house does not
take into account that there are other, often cheaper, forms
of tenure that also provide security.
2 Land tenure
Types of land
Land belongs to the state if not otherwise lawfully owned. 115
There are a number of land categories.
State land
This is used for nature conservation, game parks, agricultural
research farms and military bases. It also includes land owned
by local authorities in urban areas for development and sale
to private developers.
Private land
Urban land privately owned within proclaimed boundaries 116
as well as rural commercial farmland or freehold agricultural
land. 117
Communal land
This category includes all land used by indigenous communi-
ties. It is owned by the state but held in trust for them. On
the edges of growing towns in communal areas, uncertainty
115
Art.
100
of
the
Constitution.
116
Under
the
Town
Planning
Ordinance
18
of
1954
and
Townships
and
Division
of
Land
Ordinance
11
of
1963.
117
Private
ownership
of
commercial
farmland
in
Namibia
is
commonly
referred
to
as
freehold,
a
term
that
is
not
used
for
private
ownership
of
urban
land
in
Namibia.
exists about longstanding traditional rights and how these
will be affected by the expansion of urban boundaries, and
what the duties of local authorities will be in such areas.
Table 2.1 Land categories
Land Category Km² Percent of
total area
Rural Private Land 355,907 43,2
Communal Land 326,293 39,5*
National Parks (State Land) 114,500 13,9
Registered Diamond Areas
(State Land)
21,600 2,7
Urban Private Land 5,900 0,7
Total 824,200 100
* This includes 420 surveyed farms, exproprated
under the Odendaal plan of 1963/4.(Source: Draft
National Land Use Planning Policy)
The categories of land rights holders are: individuals, family
trusts, legally constituted bodies and institutions that exercise
joint ownership rights, duly constituted cooperatives and the
state. 118
All other town/urban land (in communal and commercial
areas) that is proclaimed part of a town in terms of the
Local Authorities Act, but which is not held through any of
the forms of land right described above, is registered in the
name of the government or a local authority. Such land is
intended to be subdivided, serviced and sold to the public to
be held under freehold title.
2.2 Tenure types
Relevant constitutional provisions
The Namibian Constitution does not contain explicit provi-
sions recognising the right to adequate housing and access to
land. It recognises the right for all persons to acquire, own
and dispose of all forms of immovable and movable prop-
118
Republic
of
Namibia.
(1998).
National Land Policy.
Ministry
of
Lands,
Resettlement
and
Rehabilitation
Windhoek,
pp.
7-8.
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
bodies that govern planning and land use. Coordination
between these bodies is therefore crucial. 124
National laws related to land and property rights
Agricultural commercial land
The Agricultural (Commercial) Land Reform Act, Act 6 of 1995This
law provides for the acquisition of agricultural land by the
government for purposes of land reform and redistribution.
The land reform and redistribution is focused on agricultural
land and targets Namibian citizens who have been disadvan-
taged by past discriminatory laws or practices. 125
Communal Land
The Communal Land Reform Act, Act 5 of 2002 The Act pro-
vides for the recording and registration of all land rights in
communal areas, either as customary land rights or as rights
of leasehold.
Communal land includes settlement areas but excludes mu-
nicipalities, towns and villages. Communal land cannot be
bought or sold, but it can be transferred. The Act provides
for the allocation of rights in respect of communal land out-
side the boundaries of proclaimed towns. It further provides
for the establishment of Communal Land Boards (CLBs),
and regulates the powers of chiefs, traditional authorities and
boards in relation to communal land.
CLBs have been established in 12 regions. They exercise
control over the allocation of customary land rights by
chiefs or traditional authorities. They are also tasked with
administering the entire system of granting, recording and
cancelling of customary land rights, with consultation with
traditional authorities. CLBs comprise representatives of the
traditional authorities, farming community, regional council,
women, the public service and conservancies in their area of
jurisdiction.
Customary land rights for various uses may be allocated
to individuals in communal land. If the land is used for a
124
Such
bodies
include
local
authorities
and
the
MLRGH.
125
Preamble.
erty in any part of Namibia. 119 It also authorises the state to
expropriate property in the public interest, subject to the pay-
ment of just compensation, in accordance with the law. 120
Art. 21(1)(a) recognises the right to freedom of speech and
expression for all persons, while (h) states that every person
has the right to reside and settle in any part of Namibia.
The right to property is balanced against the constitutional
obligation to affirmative action. 121 This enables parliament
to enact laws that provide for the advancement of people
who have been disadvantaged by past discriminatory laws or
practices. It also allows for the implementation of policies
and programmes aimed at redressing such imbalances.
The state is obliged to actively promote and maintain the
welfare of the people by adopting policies aimed at the fol-
lowing 122:
" Ensuring that every citizen has a right to fair and rea-
sonable access to public facilities and services in ac-
cordance with the law;
" Consistent planning to raise and maintain an accept-
able level of nutrition and standard of living of the
Namibian people and to improve public health; and
" Maintenance of ecosystems, essential ecological pro-
cesses and biological diversity of Namibia and utilisa-
tion of living natural resources on a sustainable basis
for the benefit of all Namibians, both present and fu-
ture.
The fundamental right of every citizen to freedom of speech
and access to information implies that adequate and appro-
priate consultation with all interested and affected parties
must be present in all land use plans. Land use plans must en-
courage the well being of all citizens through the promotion
of access to services, facilities and resources on a sustainable
basis. 123 According to the Constitution, there are specific
119
Art.
16(1).
120
Art.
16(2)
.
Such
laws
include
for
instance
the
Agricultural
(Commercial)
Land
Reform
Act
6
of
1995.
121
Art.
23(2).
122
Art.
95(1).
123
Republic
of
Namibia.
(2002).
The Draft National Land Use Policy in Annexure A:
Applicable Legislation, Policies and Regulations on Land Use Planning.
Ministry
of
Lands,
Resettlement
and
Rehabilitation,
Windhoek,
p.
1.
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
commercial purpose and not subsistence farming, the ap-
plicant must apply to the CLB for a leasehold. Lessees, unlike
persons with a customary land right, have to pay an annual
fee to the CLB.
Joint registration in both spouses names is possible with the
registration of land allotments on resettlement projects.
Traditional Authorities
Traditional Authorities Act, Act 25 of 2000
This Act recognises traditional authorities as legal entities and
provides for various aspects of their functioning. A Council
of Traditional Leaders is established to assist the president
with the administration and control of communal land.
There are currently 86 recognised traditional authority lead-
ers in Namibia, of whom only two are women. The Act also
states that traditional authorities should promote affirmative
action, particularly with regard to positions of leadership, as
required by the Constitution. 126
The primary functions of the traditional authorities are to
promote peace and welfare among community members, and
to supervise and ensure the observance of the customary law
of that community by its members.
With respect to land use planning they perform the follow-
ing:
" Assist and co-operate with the government, regional
councils and local councils in the execution of their
policies and to keep the members of the traditional
community informed of developmental projects in
their area; and
" Ensure that the members of their traditional com-
munity use the natural resources at their disposal on
a sustainable basis and in a manner that conserves the
environment and maintains the ecosystems.
Traditional authorities are required to be fully involved in
land use planning and development.
126
Section
3(g).
Urban Land
Urban areas are municipalities, towns, villages or settlements
as defined in the Local Authority Act.
The Squatters Proclamation, AG 21 of 1985
This law was passed to control the development of informal
settlements, especially after influx control measures were
abolished in 1977. It deals with prohibited occupation of
land and buildings, and eviction. It has not been used since
independence.
Leases and shack rental
A tenant can enforce rights against a landlord even if the
tenancy has not been registered and the premises not control-
led. A lease contract therefore offers sufficient protection to
the lessee. 127 Backyard shack dwellers have informal rental
agreements with landlords.
Prescription
The Prescription Act 68 of 1969 provides that a person be-
comes the owner of land or other property possessed openly
for an uninterrupted period of 30 years. Only four cases of
prescription have occurred since independence and none of
them applied to an informal settlement.
Flexible Land Tenure Bill 128
Background
The formal land registration systems cover only part of the
country, excluding 60 percent of those residing in the former
homelands, now communal areas. 129 As many as 100,000
families in informal settlements and peri-urban communal
areas with longstanding traditional rights have insecure rights
to their land. 130 The solution for these families is a cheap,
accessible, creditworthy and secure form of tenure. The
127
Derived
from
the
Roman-Dutch
law
rule
huur gaat voor koop
(lease
overrides
sale).
See
Scott,
S.
Brink,
P.
D.
&
Knobel.
I.
M.
(2003).
Law of Property.
University
of
South
Africa,
Pretoria,
pp.
202-203.
128
This
section
has
been
drafted
with
the
assistance
of
Søren
Christensen.
See
also
Christensen,
S.F.
&
Højgaard,
P.D.
(1997).
Report
on
A
Flexible
Land
Tenure
System
for
Namibia.
Ministry
of
Lands,
Resettlement
and
Rehabilitation,
Windhoek.
129
Op.
Cit.,
30,
p.
3.
130
Information
obtained
from
the
Ministry
of
Lands,
Resettlement
and
Rehabilitation,
August
2004.
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
current freehold and leasehold-based systems are costly and
cumbersome. In addition, the human and financial resources
necessary to administer them are not available.
A consultative three-year pilot programme was implemented
and various alternatives were considered. This culminated in
a parallel registration system proposed in the Flexible Land
Tenure Bill and accompanying draft regulations. This draft
law was completed in February 2004 and cabinet approval
is pending.
Tenure types
The Flexible Land Tenure System recommends two new
types of tenure:
" The starter title a form of tenure registered in re-
spect of a block of land. It provides the holder with
the right to occupy a site within a block. The occupier
may only transfer this right subject to a group con-
stitution requiring group consent to transfer. As the
individual households site is not yet defined, the right
cannot be mortgaged; and
" The land-hold title a form of tenure with all the
most important aspects of freehold ownership except
the complexities of full ownership. The title provides
the owner with the right to occupy a defined site and
to transfer of such right. Mortgaging is therefore pos-
sible.
Starter and land-hold titles are interchangeable. A starter title
can be upgraded to land-hold title or to a freehold title. A
block is obtained by a saving scheme group, which forms an
association after it has it has drawn up a constitution. The
group can obtain freehold title provided it is situated in an
approved urban area. Once tenure security is obtained it is
envisaged that the occupants will build their own houses,
with the local authority providing services.
Application
The system is designed for all urban areas, including peri-
urban land within municipal boundaries. 131 In theory, it is
possible that the Flexible Land Tenure System could also be
131 Urban areas are municipalities, towns, villages or settlements as defined in the
Local
Authority
Act.
considered for rural areas, but in practice, a real need for
acquiring land for low-income households exists around
peri-urban areas and larger towns, but not necessarily in rural
villages.
The Flexible Tenure Bill does not address the issue of pro-
claimed towns situated within communal areas. It therefore
seems that if an area has been set aside for the development
of a block system, and this area happens to overlap with an
area that is under the control of a traditional authority or a
chief, the local authority will have to get permission from the
traditional authority or chief to use such land for residential
purposes (i.e. to develop a block system). An alternative
option is that local authorities can simply confine the block
system to designated town land boundaries, thus avoiding
potential conflicts.
Although many people hold the view that the state owns
such land and should be able to deal with it as it sees fit,
the Constitution nevertheless requires that it is necessary to
formally acquire the land rights that certain citizens hold in
relation to it. These rights are allocated by the local traditional
authority and include communal tenure rights for residential
and agricultural purposes, such as planting crops and graz-
ing stock. Certain local authorities in the north of Namibia,
together with central government, have learned that these
rights cannot be wished away by merely ordering such hold-
ers to leave.
The main goal of the Flexible Land Tenure System is to for-
malise existing rights in such a way that allows for traditional
rights to continue to exist in a peri-urban area. In other words,
the system serves as a guideline to local authorities in com-
munal areas on how to deal with urban and peri-urban land
disputes, especially in the case of grey areas in peri-urban
locations where traditional authorities feel that they have the
right to deal with such issues instead of local authorities.
Administration
Freehold ownership is registered in the deeds registry in
Windhoek, while starter and land-hold titles are at a land
0
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
rights office situated in the district. Through electronic data
communication links registry records should be easily avail-
able for inspection throughout Namibia. Recognition of the
starter and land-hold titles will remain parallel to the existing
registration system. This means the same land parcel will
be the subject of registration in both the starter and land-
hold title computer-based registry and in the deeds registry.
However, the deeds registry will only show the ownership of
the whole block of land; individual rights within that block
will not be visible in the deeds registry.
Staff and training
Only paraprofessionals are needed to process starter and
land-hold titles. It is expected that the paraprofessional will
speak the relevant local language and understand local cus-
toms and practise. Further the land rights office staff will also
be trained to assist people with the preparation of transfer
agreements and other simple transactions
Monitoring and control
It will be the responsibility of the Ministry of Lands,
Resettlement and Rehabilitation (MLRR) 132 to take measures
against corruption. Public complainants may also approach
the Office of the Ombudsman.
Status of the bill
A land rights office has been established in Oshakati and
more than 2,000 plots have been surveyed. As the bill has not
yet been made law, it has not been possible to issue any starter
and land-hold title certificates. At this early stage, however, it
is emerging that there is a vital need for local authority and
community linkages in implementation. Further, de-densifi-
cation of the settlements is creating demand for additional
land. Possible solutions are communal land at the edges of
the urban areas, although issues of location emerge. Concerns
have also been raised about continuing in-migration, which
will put pressure on existing blocks already formalised.
Although there is growing impatience at the slow pace of
progress, people living in the upgraded settlements are already
132
Renamed
the
Ministry
of
Lands
and
Resettlement
in
March
2005.
For
purposes
of
this
report
the
old
name
is
used.
displaying a sense of tenure security, and are now investing
in brick houses. The training of paraprofessionals has been
secured through established courses at the Polytechnic of
Namibia. The government has other more urgent land reform
priorities, especially commercial agricultural land reform. It
may, therefore, be unrealistic to expect large budgetary alloca-
tions for implementation of the law. Donor support has been
offered, although there has been no firm agreement. 133
In terms of joint ownership the bill in Section 10(8) provides
for the following: Except for persons who are married in
community of property, a starter title right may not be held
by more than one person jointly.
A land-hold title site will be indicated on a cadastral map pre-
pared by a land measurer, based in a land rights office, in ac-
cordance with procedures and to a standard to be prescribed
in the regulations for the Flexible Land Tenure System.
Customary law
Ownership, use and control of land
Communal land is vested in the state by the Constitution. The
state has a duty to administer communal lands in trust for
the benefit of the traditional communities residing on these
lands and for the purposes of promoting the economic and
social development of these areas. Communal land cannot be
bought or sold nor used as collateral for loans.
Land within communal areas can be registered under custom-
ary land rights or rights of leasehold. Customary land rights
in communal areas include:
" A user right to a farming unit;
" A user right to a residential unit; and
" A user right to any other form of customary tenure
that is recognised and described by the minister in the
Government Gazette.
These rights can be transferred, inherited or held jointly by
spouses.
133 Engel, A. Interview with the author, August 2 2004.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
In most communal areas, traditional leaders such as head-
men, chiefs, indunas and kings control the land. These, with
few exceptions, are men. 134 Under matrilineal groups 135
matrilineal uncles and brothers have a greater say in deci-
sion-making.
It is men who usually approach the traditional leader to be
allocated a parcel of land for a fee. 136 Land may also be dis-
tributed to extended families, which distribute it to men. 137
Married men may then bring their wives to live in a patrilocal
village. Women, both married and unmarried, therefore gain
access to land through their husbands, brothers, uncles or
parental families. The control of land is therefore usually in
the hands of men. Women are often more involved in use of
the land, for instance tending crops.
The Windhoek-based LAC has a small office in the north at
Ongwediva where it receives an average of two complaints
per week, mostly from women, related to lost access to land.
By far the majority of cases are settled out of court. There
is possible scope for the LAC to take on more of these
cases, but at the moment, the Ongwediva office does not
have a lawyer or sufficient resources to further deal with such
cases. 138
Art. 66 of the Constitution provides that both customary law
and the common law of Namibia in force at independence
will remain in force as long as they do not conflict with the
Constitution or any other statutory law. Art. 66 also says that
common or customary law may be repealed or modified by
parliament. However, discriminatory practices will need to be
134
With
the
possible
exception
of
the
Nama
in
the
south
of
Namibia.
135
For
instance
the
Owambo
and
Okavango
communities.
136
Although
Section
43
of
the
Communal
Land
Reform
Act
prohibits
payment
for
any
kind
for
customary
land
rights,
it
still
occurs.
There
is
also
standard
administration
fee
of
N$25.
137
For
instance
the
Lozi
in
the
Caprivi.
138
The
Windhoek-based
lawyers
drive
up
to
Ongwediva
on
a
monthly
basis
(approximately
750km
one
way)
to
take
statements
from
complainants.
One
case
is
currently
being
handled
in
Uutapi
Magistrate
Court
and
concerns
a
woman
who
is
threatened
with
eviction
by
her
in-laws.
challenged before a court before such laws can be declared
unconstitutional.
The Community Courts Act, Act 10 of 2003
The Act aims to bring the traditional court system into the
mainstream of the administration of justice. It provides for
the establishment of Community Courts with the power
to have their decisions enforced. These are yet to be estab-
lished. 139
Community Courts include traditional authority representa-
tion and function as lower courts. They apply customary law
to the specific rural communal area under which they are
established. 140
While Communal Land Boards were established to deal with
land disputes, it is expected that Community Courts will deal
with movable property. Civil laws still apply to proclaimed
communal urban or town areas. It is not clear what role
Community Courts have in disputes between people who
recognise a specific traditional authority, but reside in areas
outside its jurisdiction. Also, little clarity exists on the exact
boundaries between local and traditional authorities around
proclaimed communal urban or town lands. 141
139
Traditional
authorities
have
until
December
2004
to
apply
to
the
Ministry
of
Justice
to
run
a
Community
Court
in
their
areas.
140
Section
12.
141
World
Bank
(2003).
Comparative of Land Administrative Systems: Critical Issues
and Future Challenges, Preliminary Report,
p.
49.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Summary
Table 2.2 Tenure types
Type Characteristics Legal basis
Customary land
rights
Administered according to customary law. These occur in communal areas and can be
registered.
Schedule 5(1) of the Constitution
Communal Land Reform Act, Act 5
of 2002
Freehold ownership Ownership can be held in perpetuity, is transferable, alienable and may be obtained through
prescription. Land may be expropriated for purposes of public interest on a just compensation
basis.
Art. 16 of the Constitution.
Section 14(1) of the Agricultural
(Commercial) Land Reform Act, Act
6 of 1995
Leasehold For periods of 99 years. Available in both communal and commercial areas, primarily for
business purposes.
Communal Land Boards may grant rights of leasehold to any portion of communal land, only
if the relevant traditional authority consents.
Common Law
Communal Land Reform Act
National Resettlement Policy
National Land Policy
Permission to
Occupy (PTO)
PTO certificates are granted by the MLRR. To be phased out within three years after the
introduction of the Communal Land Reform Act. Existing PTO holders will be entitled to apply
to their relevant Communal Land Boards for conversion to leasehold.
Part I of the Local Authorities Act, Act
23 of 1992 refers to various aspects of
PTO rights held in communal areas.
Communal Land Reform Act, Act 5
of 2002
Proposed starter
title
The starter registered in respect of a block of land. Section 10 of Flexible Land Tenure
Bill (4th draft)
Proposed land-hold
title
Freehold without the complications of full ownership. Section 9 of Flexible Land Tenure Bill
(4th Draft)
Prescription Prescription period is 30 years. Section 1 of the Prescription Act 68
of 1969
Informal tenure Shack and backyard dwellers.
2.3 Land policy
The National Land Policy 1998
The National Land Policy provides for a unitary land system for Namibia, in which all citizens have equal rights, opportunities
and security across a range of tenure and management systems. The policy also has a specific gender provision in accordance
with the Constitution. Women are accorded the same status as men with regard to all forms of land rights, either as individu-
als or as members of family land ownership trusts. According to the policy everyone, irrespective of gender, is entitled to
maintain the land rights enjoyed during their spouses lifetime. 142
The policy also provides for multiple forms of land rights, including customary grants, leaseholds, freeholds, licences, cer-
tificates or permits, and state ownership. It has provisions on the urban poor, providing that informal settlements need to be
given attention through appropriate planning, land delivery, tenure, registration and finance in an environmentally sustainable
manner.
142 Op. Cit., 52, p. 1.
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
The policy requires the establishment and proclamation of
urban areas as townships and municipalities to promote
decentralisation and the close involvement of communi-
ties in their own administration. The policy states that
particular attention needs to be given to the establishment
of a transparent, flexible and consultative local authority
planning system and development regulations. The policy
recommends that laws be enacted to enable the compulsory
acquisition of land by central or local government authori-
ties for public purposes in accordance with the Constitution.
The compulsory acquisition of commercial agricultural land
for public purposes is provided for under the Agricultural
(Commercial) Land Reform Act. No similar laws exist for
urban land reform
The National Resettlement Policy of 2001
The National Resettlement Policy aims to redress past imbal-
ances in the distribution of economic resources, particularly
land and secure tenure. The governments classification of
beneficiaries for resettlement covers a wide range of people,
and arguably virtually every poor person in Namibia. 143
Under the programme, the government has purchased farms
for resettlement purposes and constructed and allocated
houses. In addition, a considerable number of farms have
been allocated to emerging black commercial farmers under
the Affirmative Action Loan Scheme since 1992.
Problems in implementation include the emergence of
wealthy black part-time farmers, and the lack of services and
support for skills training for the beneficiaries. An estimated
36 percent of farmers under the loan scheme are in arrears
of their payments. 144 The Commercial Agricultural Land
Reform Act additionally provides for the expropriation of
land. This was in response to the slow pace of land redistri-
bution under a willing-buyer, willing-seller system. No land
has yet been expropriated, by early 2005, although as many
as 25 expropriation notices have been handed out to white
commercial farmers.
143
Op.
Cit.,
31,
p.
54.
144
Angula
Admits
AA
Loan
Scheme
Defective.
(2004).
The
Namibian.
The Land Use Planning Policy
This is a summary of all the policies and legislation applicable
to land in Namibia. A final draft was formulated in 2002.
National Gender Policy, 1997
The policy does not directly refer to land issues. It does, how-
ever, call for supporting women in all mainstream national,
regional and local development initiatives. 145
2.4 Main institutions
The Ministry of Lands, Resettlement
and Rehabilitation (MLRR)
The MLRR was established in 1990 as the main actor in the
planning and administration of land. In an effort to improve
coordination of activities related to land, the MLRR has
established the Inter-Ministerial Standing Committee for
Land-Use Planning (IMSCLUP), which it coordinates.
The ministry consists of two main departments: Land
Management and Administration; and Land Reform,
Resettlement and Rehabilitation. In turn, these departments
are divided into several directorates.
The Directorate of Survey and Mapping, headed by the
Surveyor-General, provides services in support of land plan-
ning, surveying, mapping and administration. It provides
information for the planning exercises to government, par-
astatals, private institutions and the public. The Office of the
Registrar of Deeds and the Office of the Surveyor General
fall under this directorate. 146 The directorate plays an active
role in the process of township proclamation by coordinat-
ing all township surveys in collaboration with the Ministry of
Regional and Local Government and Housing (MRLGH).
The Directorate of Lands advises on the planning of land
as well as its administration. This includes advice to the
145 Republic of Namibia. (1997). National Gender Policy. Office of the President,
Department
of
Womens
Affairs,
Windhoek,
p.
7.
146
The
functions
of
these
deeds
registries
are
currently
outlined
in
the
Deeds
Registries
Act,
No.
47
of
1937
and
the
Registration
of
Deeds
in
Rehoboth
Act,
No.
93
of
1976.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Directorate of Resettlement and Rehabilitation, which
deals with the planning and implementation of resettlement
schemes. (For now, these schemes are mostly directed towards
agricultural land use.)
The main function of the Rehabilitation Division (under
the Directorate of Rehabilitation) is to facilitate increased
access to services by people with disabilities. The division is
responsible for the implementation of the National Disability
Policy.
The MLRR has also been responsible for the development
of a parallel interchangeable property registration system
for Namibia, in order to make an initial secure tenure right
simpler, more affordable and upgradeable according to what
a resident, a local authority and the government need and
can afford at any given time. The system has been designed
to be locally maintained in a land rights office (located near
a demarcated informal settlement), affordable and operated
by fewer skilled personnel than the present system. While the
MLRR has been responsible for the drafting of the Flexible
Land Tenure Bill, the MLRGH, will be responsible for the
implementation of this legislation.
A major challenge to the MLRR is the legacy of different
types of land tenure in Namibia. These represent a complex
and sometimes inefficient legal framework in terms of land
use planning. Government officials often have to deal with
different systems within the jurisdiction of each authority
on national, regional or local level. This complex legal legacy
compounds the already difficult task of planning for sustain-
able, integrated and equitable land use and development. 147
The Agricultural (Commercial) Land Reform Act has
provided for the creation of the Land Reform Advisory
Commission consisting of 16 members from the public and
147
Op.
cit.,
57,
p.
3.
private sectors. 148 This commission operates independently
from the MLRR.
The MRLGH will also be responsible for the implementation
of the National Land Use Planning Policy.
Regional Communal Land Boards
Twelve regional CLBs were established under the Communal
Land Reform Act of 2002. On these boards, different min-
istries and every traditional authority recognised under the
Traditional Authorities Act are represented. 149 At least four
women must be on each board, though the total number of
board members varies. Communal land is allocated by the
Land Boards through registered certificates. The boards: 150
" Control the allocation and cancellation of customary
land rights by chiefs or traditional authorities;
" Decide on applications for rights of leasehold;
" Create and maintain registers for the allocation, transfer
and cancellation of customary land rights and rights of
leasehold;
" Advise the minister on regulations needed to meet the
objectives of the Act; and
" Give effect to the provisions of this Act.
Section 24 of the Act deals with the ratification of customary
land rights allocations. While the chief or traditional author-
ity may allocate customary land rights, the relevant board
must ratify the allocation before it is legally valid. The chief
or traditional authority must within 30 days of allocating a
customary land right inform the board of the allocation and
provide all information about the allocation. The boards have
considerable power the in allocation of customary land rights
148 The commission consists of two officers of the MLRR, two officers of the MAWRD,
two persons involved in agricultural affairs, one person nominated by the Agribank, five
persons
of
whom
at
least
two
shall
be
women
and
who
are
not
employed
in
the
public
services.
See
op.
cit.,
45,
p.
206.
149
According to Section 4 of the Act, the minister (MLRR) requests nominations for the
CLB.
150 Section 3 of the Communal Land Reform Act.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
and can veto allocations made by traditional authorities. This
includes reallocations as described in section 26 of the Act.
The procedure related to ratification of customary land right
allocations is as follows:
(1) The board must ratify the allocation if it is satisfied
that the allocation was properly made.
(2) The board must refer the matter back to the chief or
the traditional authority to decide the matter again,
considering the comments made by the board.
(3) The board must veto the allocation if the right has
been allocated for an area of land, over which another
person has rights, or the size of land allocated exceeds
the maximum prescribed size, or the right has been al-
located for land reserved for common usage or for any
other purpose in the public interest.
(4) The board must give written reasons to the applicant
and the chief or traditional authority when it vetoes an
allocation of a customary land right.
In other words, the board must decide whether the chief or
the traditional authority made the allocation in accordance
with the provisions of the Act. To do this, the board may
enquire into the matter and consult with other people. After
the board has ratified the allocation of a customary land it
must ensure the right is registered and maintain the relevant
paperwork. 151
" The registration of leasehold rights is regulated in Sec-
tion 33 of the Act. Once the board has granted an
application for a right of leasehold it must ensure reg-
istration of the right and issue a leasehold title to the
applicant.
The maximum period for a leasehold title is 99 years, but the
person who applied for and received the right of leasehold
and the board must agree to the period. Leases for longer
than 10 years are not valid unless approved by the minister.
Local Authority Councils
In urban areas and formal rural areas, local authorities own
most of the land. Local authorities are responsible for the
development of land for housing and the sale of residential
151
According
to
section
25
of
the
Act.
plots, which are transferable with freehold title. With the
enactment of the Local Authorities Act, Act No. 23 of 1992,
designated urban areas in the former communal areas are
in the position to provide freehold title. The functions of
local authority councils with regard to housing are defined
in the Local Authorities Act, and the National Housing
Development Act .
The Local Authorities Act distinguishes between mu-
nicipalities, towns and villages. Municipalities represent the
highest level of local authority and are divided into Part I
Municipalities, such as Windhoek, Swakopmund and Walvis
Bay and Part II Municipalities, such as Gobabis, Grootfontein,
Karibib, Karasburg, Keetmanshoop, Mariental, Okahandja,
Omaruru, Otjiwarongo, Outjo, Tsumeb and Usakos. Those
classified under Part I have more autonomy in their adminis-
tration and more councillors than those listed under Part II.
Traditional authorities
Traditional authorities used to give out land rights, but their
role is now limited because of the CLBs. Some traditional
authorities are not formally recognised under the Traditional
Authorities Act, and as a result they cannot be included in
the CLBs. In return they refuse to recognise the decisions of
the boards. In informal settlements in proclaimed towns in
communal areas, headmen still have a strong influence and in
practice may still be involved in land administration in these
areas.
3 Housing
3.1 Relevant constitutional provisions
The Constitution does not directly provide for housing rights.
It provides however that no person shall be subjected to in-
terference of their homes. 152 The state is required to actively
promote and maintain the welfare of people by adopting
policies aimed at ensuring that every citizen has a right to
fair and reasonable access to public facilities and services. 153
152
Art.
13
(1).
153 Art. 95 (e).
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
In addition, Namibia has signed a number of international
treaties that are binding on the state. 154
3.2 Policies related to housing
National Housing Policy of 1991
After independence, the government identified the provi-
sion of adequate and affordable housing to all Namibians
as one of its first priorities. To ensure the development of
a sound and comprehensive approach, it created a Housing
Policy Advisory Committee soon after independence. The
committee, consisting of representatives of a wide range of
private and public interest groups, drafted the first National
Housing Policy (NHP), 155 which was adopted by the cabinet
in 1991. 156
Preparation of the NHP involved an analysis of the hous-
ing situation in Namibia at independence, the development
of a broad framework for action and identification of areas
requiring further research. 157 The NHP aims to secure the
provision, enactment and tenure for all members and types of
households of the society on land or in apartment buildings
for rent or purchase. In addition, the NHP aims to benefit
&all members and types of households of the society who
require furtherance (financial assistance, education, training
and advice) in order to participate in one of the programmes,
schemes and projects offered by the private or public instru-
ments. 158
The policy states that the role of the government is to facili-
tate and promote partnership networks between public and
private sectors, local authorities, regional councils, NGOs,
CBOs, and individuals. It appears from the policy that govern-
ment intervention will only occur when relating to issues of
access to serviced land and means of finance that are beyond
154
In
terms
of
Art.
144
of
the
Constitution,
international
public
law
forms
part
of
Namibian
law.
155 The first National Housing Policy dates back to 1991. Since then a number of
drafts
have
seen
the
light
that
aimed
at
updating
aspects
of
the
1991
policy.
156
Op.
cit.,
1165.
no
467.
157
Ibid,
p.
468.
158
Republic
of
Namibia.
(2004).
The National Housing
Policy of Namibia.
5th
Draft
Ministry
of
Local
and
Regional
Government
and
Housing,
Windhoek,
p.
9.
an individuals control and capacity. The NHP further states
that the primary responsibility for the provision of housing
is placed upon the head of each household. 159
Despite making little reference to low-cost housing, the NHP
nevertheless recognises the achievements of the SDFN and
other saving groups in organising and building homes for
themselves. The policy says government must support these
efforts through the MRLGH. 160 The NHP includes no pro-
vision on female-headed households or women.
Section 6 of the NHP states that:
(a) The Government intends to subsidise only those
income earners whose monthly family income is less
than a predetermined amount set by the Minister from
time to time. This subsidy will be in the form of a one-
time up-front cash payment to the local authority or
developer on behalf of the purchaser upon sale of the
plot of land with or without improvements.
(b) The irrecoverable capital costs of such projects (proj-
ects relating to upgrading of infrastructure) should
therefore be paid directly from State revenue in accor-
dance with national priorities.
National Water Policy
The National Water Policy was adopted in 2002 and states
that all Namibians shall have the right of access to sufficient
safe water for a healthy and productive life. 161
National Gender Policy of 1997
The policy does not directly refer to housing. It does how-
ever call for supporting women in all mainstream national,
regional and local development initiatives. 162
159
Ibid,
p.
6.
160
Ibid,
p.
13.
161
Republic
of
Namibia.
(2002).
National Water Policy (White Paper). Ministry
of
Agriculture,
Water
and
Rural
Development,
Windhoek,
p.
23.
162 Op. cit., 79, p. 7.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
3.3 Relevant housing legislation
Low-cost housing
The National Housing Development Act, Act 28 of
2000
This Act establishes a National Housing Advisory Committee
to advise the minister on any aspect of national housing, in-
cluding the formulation and implementation of policies and
programmes relating to low-cost housing.
Regional and local authorities may establish Housing
Revolving Funds to be used for low-cost housing. 163 A
Housing Revolving Fund grants loans to persons for the
construction of low-cost housing and acquisition of land. It
also grants loans to persons for the construction of low-cost
housing on behalf of other persons. 164
Decentralised Build Together Committees for each region
deal with applications for assistance from the Housing
Revolving Funds. The functions of a Decentralised Build
Together Committee include:
" Inform the inhabitants of a geographical area about
the existence, objectives and purposes of a Housing
Revolving Fund;
" Receive applications for assistance from a Housing
Revolving Fund and determine whether applicants are
eligible;
" Submit applications and recommendations to the rel-
evant council;
" Submit quarterly reports to the regional council or lo-
cal authority council; and
" Perform such other functions as the minister may des-
ignate to it in writing. 165
The functions, duties and responsibilities of regional councils
in the land and housing delivery process are defined in the
National Housing Development Act. These include:
163
Section
8(1).
164
Section
9.
165
Section
29
of
the
National
Housing
Development
Act.
" Reporting problems to the MRLGH concerning hous-
ing in the various regions;
" Preparation of regional housing policies;
" Responsibility to increase and sustain regional land and
housing development, especially in neglected rural ar-
eas; and
" Act as the supervisor of village councils and settle-
ment areas with regard to housing as contemplated in
the National Housing and Development Act.
Local Authorities Act, Act 23 of 1992
Functions of local authorities in relation to housing are de-
fined in the National Housing Development Act, as well as
in the Local Authorities Act, and include:
" Preparation of local housing policies;
" Development of land for housing;
" Development of plots at a cost affordable by low-in-
come people through subsidies, community work and
appropriate technologies; and
" Overseeing the construction process of housing.
National Housing Enterprise Act, Act No.5 of 1993
This Act sets out the duties and responsibilities of par-
astatal enterprises such as the National Housing Enterprise
(NHE). 166 The NHE has been operating without direct sub-
sidy allocations from the governments development budget
since 1993. It raises capital from the private sector and uses
returns on investment for housing. Financing is provided to
households based on their ability to make repayments. 167 In
theory, the NHE caters for lower- to middle-income groups,
but in practice it is mainly middle-income households that
are able to afford the support and loans that it provides.
Rental tenure rights and protection
Rent control
The Rents Ordinance 13 of 1977 determines the rent payable
in respect of leased dwellings. The ordinance provides for
the establishment of rental boards, which consist of the local
magistrate of the area and four additional members. The
most important function of the rental boards is to ensure
166
The
Act
changes
the
name
of
the
National
Building
and
Investment
Corporation
to
the
National
Housing
Enterprise.
167 Op. Cit., 1165, p. 463.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
that reasonable rent is charged for dwellings. Rental boards
are responsible for reviewing rental prices on a continuing
basis or at least once a year. A number of factors are taken
into consideration, such as the area where the premises are
situated, the rate of inflation and the rising costs of service
provisions such as water and electricity supplies. Appeals
against the decision of a Magistrates Court can be done in
the High Court.
Section 1 (vii) of the ordinance provided for some protection
of a widow or deserted wife. A widow or deserted wife was
allowed to stay on at the premises if she was living with her
husband at the time of his death or desertion. However, this
right could only be exercised if the main lease did not prohibit
a sublease, cession or assignment by the lessee. In 1996 the
Married Persons Equality Act 1 of 1996 was adopted, which
amended this ordinance and substitutes Section 1. 168
Common law eviction procedures
Evictions are the exception to the rule, according to the
Windhoek municipality. When they do take place, they usu-
ally occur where water and electricity payments remain in
arrears for long periods. Legal procedures in cases of arrears
in the payment of bills may result in the removal of movable
property to be sold on auction, monthly deductions from the
debtors salary or an eviction order. Namibia has inherited
common law eviction procedures from South Africa, which
generally still apply in such eviction cases. 169
The procedure that the Windhoek municipality follows be-
fore an eviction order is issued to a person who is in arrears
of municipal bills must be in line with the Local Authorities
Act.
Eviction is the measure of last resort. If no acceptable
arrangement can be made and there are no assets whatsoever
to be used to repay municipal rates or service rendered, the
matter is handed over to the citys lawyers to obtain the neces-
168
The
Married
Persons
Equality
Act
abolishes
the
marital
power
that
previously
applied
to
civil
marriages
and
amends
the
law
on
matrimonial
property
in
civil
marriages
in
community
of
property.
It
also
amends
the
common
law
on
the
domicile
of
married
women
and
minor
children,
and
on
the
guardianship
of
minor
children.
169
Legal
Assistance
Centre
and
Law
Society
of
Namibia. (2004).
Debt Collection and
the Role of the Sheriff/Messenger of the Court,
unpublished,
pp.
1-4.
sary relief in either the Magistrates Court or High Court. 170
This is usually after a period of 1-2 years of default. There
are currently 59,000 account holders in arrears owing the city
N$180 million (US$25.7 million).
3.4 Tenure types
High house prices make rental tenure a popular option, espe-
cially in Windhoek and Swakopmund. If one does not have
a housing subsidy, it is nearly impossible to buy a house. The
government and some private companies grant employees
housing subsidies.
Usually, people who usually rent a shack in the back of some-
one elses yard tend to be family members or extended family
members. These arrangements tend to be for short periods,
informal, and without formal rental rights and protection.
3.5 Main institutions
Ministry of Regional and Local Government and
Housing (MRLGH)
The MRLGH has the responsibility to facilitate the provi-
sion of housing, human settlement and the development
of shelter in Namibia, and to promote the development of
sustainable human settlements. The development of urban
areas involves a large number of activities and includes provi-
sion of urban land, housing and services. Urbanisation policy
is the responsibility of the MRLGH and National Planning
Commission (NPC). 171
MRLGH coordinates many of the activities of regional and
local authorities. The ministry is subdivided into four direc-
torates (see Figure 4.6.2): Regional and Local Government
Coordination; Housing, Habitat and Technical Services
170
Disputes
involving
a
property
value
of
N$25,000
are
referred
to
a
Magistrates
Court,
while
disputes
involving
a
property
value
of
more
than
N$25,000
are
referred
to
the
High
Court.
171
Art.
129
of
the
Constitution
entrusts
the
NPC
with
planning
the
priorities
and
direction
of
national
development,
and
acting
as
adviser
to
the
president
on
economic
planning.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Coordination; Decentralisation and Coordination; and
Finance, Human Resources and Administration.
The Directorate of Regional and Local Government Coordination
is again subdivided into four divisions (Local Government
Coordination, Town and Village Administration, Regional
Government Coordination, and Town and Regional
Planning). 172
The main functions of the ministry regarding local govern-
ment are:
" Coordination and management of regional and local
government;
" Rendering town and regional planning services;
" Dealing with matters concerning towns and villages in
terms of the Town Planning Ordinance and the Town-
ship and Division of Land Ordinance of 1963 (both
amended);
" Acting as a secretariat for the Namibia Planning Advi-
sory Board;
" Training officials for regional councils and local au-
thorities; and
" Presenting development budgets to the National Plan-
ning Commission, on behalf of regional, town and vil-
lage councils. 173
Municipalities
A municipality is a legal body with its own assets and consists
of a proclaimed town layout with town lands for future ex-
tensions. 174 All municipalities have an organised and formal
administrative structure, performing the functions of a local
authority. Administratively they are divided into departments
of general administration, finance, health and engineering.
Their functions include water supply, provision of systems
of sewerage and drainage, collection of garbage, construc-
tion and maintenance of streets and public places, supply
of electricity and gas and facilitating housing development.
They are, in principle, independent from higher authorities,
172
Op.
cit.,
45,
p.
449.
173
Ibid.
174
Ibid,
p.
452.
both administratively and financially. The main sources of
income for municipalities come from local rates, charges
and fees from provision of urban services (water, electricity
and sewerage) and sales and taxation of land. Government
contributes to their finances in the form of loans for devel-
opment purposes and subsidies on streets, traffic control and
fire brigades.
With a steady influx of people to Windhoek, especially to the
informal parts of Katutura, the costs for development of
urban services are likely to be considerable in the future.
Regional councils
The functions, duties and responsibilities of regional councils
in the land and housing delivery process are defined in the
National Housing Development Act. These include: 175
" Reporting of problems to the MRLGH concerning
housing;
" Preparation of regional housing policies;
" Increasing and sustaining regional land and housing de-
velopment, especially in neglected rural areas; and
" Acting as the supervisor of village councils and settle-
ment areas with regard to housing as contemplated in
the National Housing and Development Act.
There seems to be no clear perception about the roles and
responsibilities of regional councils for urban areas and
the Regional Council Act of 1992 is not very specific on
the issues. The Flexible Land Tenure Bill does not mention
any role for regional councils, but it is foreseen that once
the Bill becomes an Act, the local authority will still handle
the land administration of each urban area, while the MLRR,
MRLGH and the local authority council may establish a local
property office to deal with the registration of the two new
tenure systems.
However, the potential impact of regional councils on urbani-
sation could be considerable, because they are responsible for
development within regions and the location and design of
175 Op. cit., 92, p. 15.
0
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
infrastructure and social services, all of which influence the
process of urban migration.
Towns and villages
Towns are proclaimed and surveyed in accordance with the
procedures laid down in the Townships and Division of
Land Ordinance (1963), while villages are not. Some towns
in communal areas have been proclaimed as municipalities
since independence, which allows them to generate additional
income through charges for water, electricity, sewerage and
rent on the use of land. The MRLGH is responsible for the
administration and personnel of the majority of towns. Most
towns are not self supporting and rely on central govern-
ment to cover salaries and some maintenance costs. 176 The
lack of development in most towns currently undermines
the authority of the town councils, which could jeopardise
their political legitimacy.
A village council consists of elected members of the commu-
nity who in turn elect a chairperson and a vice-chairperson.
These officials play a similar role as the mayors and deputy
majors in larger local authorities.
4 inheritance and marital
Property Legislation
A complex web of civil and customary laws governs inherit-
ance and marital property rights in Namibia. Civil inheritance
and marital property legislation has mainly been influenced
by Roman-Dutch law, the common law inherited from South
Africa, and some old English law. The two basic marital
property regimes for civil marriages are in community of
property and out of community of property.
4.1 Relevant constitutional provisions
According to the Constitution men and women & shall
be entitled to equal rights as to marriage, during marriage
and at its dissolution. 177 It provides that the family is en-
176
Op.
ct.,
92163.
177
Art.
14
(1).
titled to protection by society and the State. 178 Art. 23 on
apartheid and affirmative action calls for legislation, policies
and practices to encourage and enable women to play a full,
equal and effective role in the political, social, economic and
cultural life of the nation, with regard to the fact that women
in Namibia have traditionally suffered special discrimination.
Art. 95 on the Promotion of the Welfare of the People calls
for enactment of legislation to ensure equal opportunities
for women, and makes equal remuneration of men and
women, as well as maternity and related benefits for women,
a government issue.
Discrimination against women is prohibited by the
Constitution. Art. 10(1) clearly states that all persons shall
be equal before the law. Art. 10(2) lists sex as one of the
prohibited grounds of discrimination. In addition, Art. 16(1)
provides for the right of any person to acquire, own and
dispose of all forms of immovable and movable property
individually or in association with others and to bequeath
their property to their heirs or legatees.
Art. 16 must also be read in the context of a further consti-
tutional obligation to affirmative action in Art. 23(2), which
states that:
Nothing contained in Art. 10 hereof shall prevent Parliament from enacting
legislation providing directly or indirectly for the advancement of persons
within Namibia who have been socially, economically or educationally
disadvantaged by past discriminatory laws or practices, or for the
implementation of policies and programmes aimed at redressing social,
economic or educational imbalances in the Namibian society arising out of
discriminatory laws or practices&
The Constitution clearly provides that women and men have
equal property rights.
4.2 Legislation related to inheritance rights
A confusing and overlapping set of laws still applies in this area,
some in violation of the Constitution because they discrimi-
nate on the basis of race. Examples are: the Administration of
Estates Act of 1965, the Native Administration Proclamation
178 Art. 14(3).
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
of 1928, the Intestate Succession Ordinance of 1946, and the
Administration of Estates (Rehoboth Gebiet) Proclamation
of 1941.
Testate succession, which is regulated by the Administration
of Estates Act of 1965, stipulates that a deceased has to have
left a valid will to determine how succession to her or his
property is to take place. Husbands and wives have equal
rights to make wills and have no duty to leave any part of
their estate to the surviving spouse or to the children of the
marriage.
However, the Native Administration Proclamation 15 of
1928 imposes race and gender-based restrictions on the
power to make wills. 179 For example, a black person living
inside the old Police Zone has the full power to bequeath his
or her estate by will, whereas a black man outside the Police
Zone does not have full testamentary freedom. The colo-
nial administration did not take into consideration that black
women, married according to customary law, could also leave
a will. Black men outside the Police Zone do not have the
legal power to leave by will (1) movable property allotted to
or accruing under customary law to any woman he lived with
in a customary union, or (2) any movable property accruing
under customary law to a particular house. Property that
falls into these two categories must be distributed according
to customary law. 180
In terms of intestate succession, the Intestate Succession
Ordinance 12 of 1946 determines inheritance. But again,
the rules are dependent on race. Only if the deceased black
person is a widower, widow or divorcee from a civil marriage
in community of property or under prenuptial contract and
was not survived by a partner to a customary union entered
into subsequent to the dissolution of such marriage, then the
179
LeBeau,
D.
Iipinge
E.
&
Conteh,
M.
(2004).
Womens Property and Inheritance
Rights in Namibia. In
Hubbard,
D.
&
Zimba,
E.
(eds).
University
of
Namibia,
Pollination
Publishers,
Windhoek,
Namibia,
p.
24.
180
Ibid.
property shall devolve as if s/he had been a European (i.e.
as provided for under the Ordinance of 1946).
The ordinance ensures various people inherit when a per-
son dies without a will. These include the surviving spouse,
children and even in certain instances parents, brothers and
sisters of the deceased.
In a civil marriage, if the deceaseds estate has no creditors to
whom debts have to be settled out of the estate, the surviving
spouse has a first claim on the land and house. In a customary
marriage, when a person dies the customary land right reverts
back to the chief or traditional authority for reallocation. 181
The chief or traditional authority must relocate the right to
the surviving spouse, if s/he consents to such allocation, or
a child of the deceased (if there is no surviving spouse or if
the spouse does not accept the allocation of the right).
Daughters and sons have equal inheritance rights under civil
marriages, but the Communal Land Reform Act provides
that customary law has to be applied if there is no surviving
spouse, or if the spouse does not accept the allocation of
the right. 182
Section 26(2)(b) of the Act states that the right should be
allocated to such a child of the deceased as the chief or
traditional authority determines to be entitled to the alloca-
tion in accordance with customary law. This provision can
work against daughters and the younger sons of the deceased
as most customary law systems follow the rule of male
primogeniture, i.e. the eldest son inherits the assets of the
deceased.
The Administration of Estates Act 66 of 1965, as amended
in South Africa in November 1979, governs the liquidation
and distribution of the estates of deceased persons. 183
181
Section
26
of
the
Communal
Land
Reform
Act.
182
An
added
risk
is
that
the
surviving
spouse
may
be
coerced
into
refusing
the
customary
land
right,
in
order
for
the
right
to
be
allocated
to
the
eldest
son.
The
Legal
Assistance
Centre
is
carrying
out
research
on
the
implementation
of
this
provision.
183
The
Administration
of
Estates
Act
66
of
1965
does
not
apply
to
the
Rehoboth
Gebiet.
The
Administration
of
Estates
(Rehoboth
Gebiet)
Proclamation
36
of
1941
regulates
the
administration
of
estates
in
Rehoboth.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
4.3 Legislation related to marital
property rights
Marriage in community of property means that all or most
of the belongings and the debts of the husband and the wife
are combined into a joint estate. Everything that belonged to
the husband or the wife before their marriage becomes part
of the joint estate, along with any money earned or property
acquired by either of them during the marriage.
Marriage out of community of property means that the
husband and wife have their separate belongings and debts.
Everything that belonged to the husband before the mar-
riage remains his and everything that belonged to the wife
before the marriage remains hers. They each keep their own
earnings and the ownership of property remains with the
person who acquired it.
The Married Persons Equality Act, Act 1 of 1996, provides
for gender equality in civil marriages and is therefore not ap-
plicable to customary marriages. The common law rule, in
terms of which a husband acquired the marital power over
the person and property of his wife, has been abolished by
the Act. This Act provides that the effect of the abolition
of the marital power is to remove the restrictions which the
marital power places on the legal capacity of a wife to con-
tract and litigate, including but not limited to, the restrictions
on her capacity to register immovable property in her name.
In addition, through the provisions of the Act, women farm-
ers married in community of property are entitled to joint, as
well as independent, land ownership under the Agricultural
(Commercial) Act. 184
The Act does not make a difference between a widow and
a widower in terms of reallocation of the customary land
right of the deceased spouse. In the case of absence of or
184
Section
5
reads
as
follows:
A
husband
and
wife
married
in
community
of
property
have
equal
capacity
(a)
to
dispose
of
the
assets
of
the
joined
estate;
(b)
to
contract
debts
for
which
the
joined
estate
is
liable;
and
(c)
to
administer
the
joined
estate.
lack of consent from the surviving spouse, the customary
land right will be reallocated to such child of the deceased
person as the Chief or Traditional Authority determines to
be entitled to the allocation of the right in accordance with
customary law. As eldest sons are often given preference
under customary law, it is clear that daughters and younger
sons are not granted equal rights with eldest sons under this
Act. Moreover, the surviving spouse could be pressurised
into refusing allocation, in order for the eldest son to inherit
the land right.
Couples who are in a civil community of property marriage
now have equal rights over their joint property. They are
required to consult each other on major transactions, with
husbands and wives having identical powers and restraints. If
either spouse withholds a transaction unreasonably, there are
avenues of redress. Where either husband or wife ignore the
requirement of consent, the wronged spouse can, in theory,
seek recourse during the existence of the marriage as well as
upon its dissolution. If the marriage is out of community of
property, the abolition of marital power means that husband
and wife each control their own separate property. 185
The default position on civil marital property is different
for some black Namibians. The Native Administration
Proclamation 15 of 1928, part of which is still in force,
makes a different rule for civil marriages between black
persons north of the old Police Zone that took place on or
after 1 August 1950. These marriages are automatically out
of community of property, unless a declaration establishing
another property regime was made to the marriage officer
one month before the marriage took place.
Customary marriages place a number of restrictions on
women. All customary marriages are potentially polygamous
and are not registered in Namibia. Customary marriages are
regulated primarily by unwritten customary laws that differ
from community to community. For example, in Herero
communities, civil marriages are usually technically in com-
185
The
Married
Persons
Equality
Act
I
of
1996.
See
Hubbard,
D.
(1999).
Proposals
for Law Reform on the Recognition of Customary Marriages.
Legal
Assistance
Centre,
Windhoek,
p.
45.
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
munity of property, while husband and wife have separate
movable property in terms of customary law. 186
Evidence suggests that it is not uncommon in regions other
than the Caprivi 187 for a couple to marry in terms of both
civil and customary law, and to rely upon different legal and
social norms, depending on the situation at hand. 188
Civil marriages seem to be growing in popularity, except in
the Caprivi Region. According to the 2001 Namibian popula-
tion and housing census, 26 percent of the population are
married under civil law, 9 percent are married according to
custom, 3 percent are divorced, 4 percent are widowed and
56 percent have never married. 189 Civil marriages have risen
in popularity in Katutura in recent years, chosen by almost
half of the conjugal households in the early 1990s, while
customary marriages are extremely rare. However, civil mar-
riages in Katutura often incorporate elements of customary
marriage, such as bridewealth, thus producing an intertwin-
ing of the two systems. 190
It also occurs that a man is married under civil law to one
wife, while cohabiting with a second wife under customary
law. When the husband dies, the woman married accord-
ing to civil marriage law often lays claim to a portion of
the deceaseds property that could also be claimed by the
other wife. 191 Also, according to the Native Administration
Proclamation, all civil marriages between natives north
of the Police Zone are automatically out of community of
186
See
Hubbard,
D.
(1999).
Proposals for Law Reform on the Recognition of
Customary Marriages.
Legal
Assistance
Centre,
Windhoek,
p.
39.
187
Civil law has less influence in Caprivi, and this region used to be administered by South
Africa for a long time under the then Transvaal Administration, rather than through the South
West Administration. As a consequence, there have been different customary law applications for
Caprivi and the rest of the communal areas in Namibia.
188
Ibid
at
37.
189
Op.
Cit.,
30,
p.
4.
190
Pendleton,
W.
(1994).
Katutura:
A
Place
Where
We
Stay, in
D,
Hubbard.
(ed).
Proposals for Law Reform on the Recognition of Customary Marriages, Legal
Assistance
Centre,
Windhoek,
pp.
82-90.
191
Interviews
conducted
with
men
by
the
author
in
Okongo
in
the
Ohangwena
region,
April
2005.
property, unless the couple make a statement that they want
to marry in community of property.
A Bill on Customary Marriages is under discussion and review
by the Law Reform and Development Commission. This has
been a very slow process so far, but it is expected that this
legislation will bring customary marriages more in line with
the Marriage Equality Act 1 of 1996.
4.4 Customary law
Although sex discrimination, which is present in some as-
pects of customary law, is unconstitutional, there have been
no court challenges to customary law on this ground since
independence. Art. 66 of the Constitution provides that both
customary law and the common law of Namibia in force on
the date of independence shall remain valid to the extent
that they do not conflict with the Constitution or any other
statutory law.
The property arrangements applying to customary marriage
are determined solely by customary law. 192
In matrilineal communities, such as the Owambo and
Okavango communities, the custom is that spouses have
some control over their own individual property regarding
marriage, divorce and inheritance issues. Matriliniality and
matrilocality determine the laws of inheritance and suc-
cession, as well as post-marital residence. Since descent is
matrilineal, these relations must fall on the mothers side.
However, in customary practices, matrilineal as well as pat-
rilineal systems tend to discriminate against women. Under
both customary systems, wives need the consent of their
husbands for some property transactions, but husbands
do not need the consent of their wives. In addition, under
the matrilineal system, immovable property such as houses
tend to be treated under such customary law as male prop-
erty regardless of which spouse actually acquired them.
Furthermore, under matrilineal systems, the control of mov-
192 Op. cit., 113, p. 21.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
able property, such as cattle, usually vests in the wifes male
relatives. 193
Where no declaration has been made in terms of the Native
Administrative Proclamation of 1928, section 17(6) of the
Native Administration Proclamation provides that a marriage
between Natives, contracted after the commencement of
this Proclamation, shall not produce the legal consequences
of marriage in community of property between the spouses.
The administrative procedures relating to deceased estates
depend to a great extent on the racial classification of the de-
ceased. The Administration of Estates Act, Act 66 of 1965 is
applicable only to whites and coloured persons, meaning that
the Master of the High Court administers their estates. If the
deceased was classified as a Baster 194 then the estate would
be administrated by a magistrate under the Administration
of Estates (Rehoboth Gebiet) Proclamation 36 of 1947.
Black estates are administrated by magistrates in terms of the
Native Administration Proclamation, but since the Berendt vs.
Stuurman case, they may choose a magistrate or master, until
parliament has amended this proclamation.
The practice in communal areas is that, upon the death of
a land rights holder, land is usually allocated to the husband
or another male member of the deceaseds family. This has
often led to the problem of widows in some communities
being stripped of land and household goods by a husbands
extended family members after his death.
Section 26 of the Communal Land Reform Act, Act 5 ad-
dresses this discriminatory practice:
A customary land right ends when the person who held that right dies. The
Communal Land Reform Act determines that a customary land right reverts
back to the Chief or Traditional Authority who has to re-allocate it to the
surviving spouse. If there is no surviving spouse, or the spouse refuses the
allocation, the right has to be allocated to the child of either the first or a
later marriage. The Chief or Traditional Authority must determine which child
193
Op.
cit.,
120,
p.
38.
194
The Basters are the offspring of Nama and Dutch Settlers in South Africa who settled in the
area of Rehoboth in 1880. The home language of the Basters is Afrikaans, a language they share
with many white Namibians.
is entitled to the allocation of the right in accordance with customary law
(Section 26 (2) (b) of the Communal Land Reform Act). Customs regarding the
division of property upon death vary greatly between communities. However,
this provision that the allocation of land is to be allocated in accordance
with customary law can work to discriminate against girls and the younger
sons of the deceased, as most customary law systems follow the rule of male
primogeniture, i.e. the eldest son inherits the assets of the deceased. This
provision may also discriminate against children born out of wedlock. 195
For example, in the 2001 case of Kauapirura v the Herero
Traditional Authority, a woman who had a common-law re-
lationship with her partner, approached the High Court to
prevent herself or her children from being disinherited as
her late partners estate was being divided among relatives
according to their customary laws. 196 The Kauapirura case
was eventually settled out of court, allowing the mother and
children to inherit from the deceased. However, as a result
of the out of court settlement, the constitutionality of the
common law rule excluding children who were born out of
wedlock from their father on an equal footing with legitimate
children if the father has died without leaving a will, was left
unchallenged.
The 2003 case of Berendt v Stuurman held that several sections
of the Native Administration Proclamation are unconstitu-
tional violations of the prohibition on racial discrimination
in Art. 10 of the Constitution. Parliament has been told to
replace these offensive sections with a new regime although
this is yet to happen. As an interim measure, heirs of black
estates can currently choose between a magistrate and the
Master as an administrator. The Berendt case has helped to
speed up the removal of some of the remaining discrimina-
tory practices concerning inheritance and marital property in
Namibian legislation.
195
Malan,
J.
(2003).
Guide
to
the
Communal
Land
Reform
Act,
Act
No
5
of
2002.
Legal
Assistance
Centre
and
the
Namibia
National
Farmers
Union,
Windhoek,
Namibia,
p.
13.
196 Menges, W. (2001). Outdated laws face challenge, The Namibian, 13 June.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
4.5 Administration of estates
(inheritance procedures)
As explained earlier, the Master of the High Court adminis-
ters estates of white and coloured deceased persons, while
magistrates administer the estates of deceased Basters living
in the Rehoboth Gebiet and the estates of deceased black
persons. However, since the Berendt v. Stuurman case of 2003,
heirs of black estates can choose between a magistrate and
the Master as an administrator.
Administration of estates by a magistrate
In terms of section 18(6) of the Native Administrative
Proclamation, the Estates Act is only applicable to black
persons who left valid wills and then only in respect of
property of which the deceased was entitled to dispose of
in terms of a will. Only immovable property can be put in
a will, while movable property is administered under native
law and custom. 197
While the procedure through a magistrate is more informal
and decentralised, it is less thorough and effective than pro-
cedures through the Master.
Administration of estates by the Master of the
High Court
The administrations of estates procedures, which are appli-
cable to white and coloured persons, are much more thor-
ough and effective than the process through the Magistrates
Courts. These estates are administered under the supervision
of a specialist office, that of the Master of the High Court,
while the administration of estates by the Magistrates Courts
often lacks the proper supervision that exists in the High
Court. 198
197
Section
18(1)
states
that
All
movable
property
belonging
to
a
Native
and
allotted
by
him
or
accruing
under
native
or
custom
to
any
woman
with
whom
he
lived
in
a
customary
union,
or
to
any
house,
shall
upon
his
death
devolve
and
be
administered
under
native
law
and
custom.
Section
18(2)
provides
that
All
other
property
of
whatsoever
kind
belonging
to
a
Native
shall
be
capable
of
being
devised
by
will.
Any
such
property
not
devised
shall
devolve
and
be
administrated
according
to
native
law
and
custom.
198
Op.
cit.,
113,
p.
26.
Divorces of civil marriages
Civil marriage registers are kept by the Ministry of Home
Affairs, and are not accessible to the public. Many divorces
are not legally recorded. Women often have to initiate divorce,
as men have other options. Religious and cultural attitudes
frown upon women initiating divorce; as a consequence
women often have no legal record of their separation and/or
divorce from their husbands. Another reason for such lack
of legal records is that often people are not aware of the
legal requirements.
Divorces of civil marriages can be granted only by the High
Court in Windhoek, which is not accessible to many poor
people that live far away. Magistrates Courts do not have
jurisdiction over divorce cases. There are four grounds for
divorce: adultery; malicious desertion; imprisonment for at
least five years of a spouse who has been declared a habitual
criminal; and incurable insanity of a spouse that has lasted
for at least seven years. These grounds (with the exception
of incurable insanity) are based on the outdated principle of
fault the idea that one spouse must have committed some
type of wrong against the other spouse. Unlike the law of
most countries today, Namibian law does not allow a divorce
to be granted simply because the couples marriage has bro-
ken down. The Law Reform and Development Commission
is considering reforms to Namibias outdated divorce law.
The way that the couples property will be divided upon
divorce depends on the marital property regime that applies
to the marriage. If the couple was married in community
of property, the joint marital estate will be divided into two
equal parts, and each person will receive a half share. If the
couple was married out of community of property, each per-
son will retain his or her own separate property. In practice,
couples that are divorcing almost always come to an agree-
ment on how their property will be divided without judicial
intervention.
Divorces of customary marriages
A number of grounds for divorce are recognised under
Namibias various customary systems. These include adul-
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
tery by the wife, taking a second wife without the consent
of the first, barrenness, and various forms of unacceptable
behaviour such as drunkenness, witchcraft or neglect of the
children.
The fact that several of these grounds for divorce apply only
to wives (adultery by the wife, barrenness and witchcraft)
and only one of them to the husband alone (the taking of
an additional wife without the consent of the first) prob-
ably violates Art. 10(2) of the Constitution forbidding sex
discrimination, as well as Art. 14(1), which guarantees men
and women equal rights in marriage and at its dissolution.
Another gender-based inequality arises from the fact that
some communities may require the return of lobola (the bride
price).
The extended families of the two spouses play a large role in
mediation and attempting to resolve marital disputes, along
with community elders and other members of the commu-
nity in some cases. Divorce is usually accomplished by an
informal procedure that takes place without any intervention
from traditional leaders, who are more likely to become in-
volved if there are issues that cannot be resolved between the
couple and their families.
It has been suggested that the Namibian Constitution
could be interpreted to require that the courts hear divorce
cases involving customary marriages. Art. 12(1)(a) of the
Constitution gives every person the right to a fair and public
hearing by an independent, impartial and competent Court
or Tribunal established by law in order to determine civil
rights and obligations. Since divorce actions clearly involve
civil rights and obligations, it may be that the Constitution
obliges the general law courts to provide a fair and public
hearing. 199
199
Ibid.
5 Poverty reduction Strategy
5.1 Introduction
Namibias poverty reduction strategy was prepared under
the tutelage of the World Bank and the United Nations
Development Programme.
5.2 The National Poverty Reduction Action
Programme 2001-2005 (NPRAP)
The familiar sectors of education, health, agriculture and so
on are identified and within these sector headings strategies,
targets, indicators and actions are formulated. There are dedi-
cated sections on monitoring and review, and a small budget-
ary link. Ten principles are set out, underlying the design and
operation of all poverty reduction strategies. Although the
need to incorporate gender issues features as one of these
policies, strategies formulated in this regard are weak.
Urban land
Urban land is dealt with under the subheading urban title
and features under a section addressing small and medium en-
terprise development. This is telling, considering it primarily
targets businesspeople. The strategy notes that indigenous
businesspeople, because of their lack of collateral, are at a
disadvantage when it comes to borrowing from commercial
banks. To remedy this, the strategy recommends elimina-
tion of constraints that have been experienced by those
with de facto rights to urban land so they can obtain titles
to these assets and hence, be in a better position to obtain
bank credit. 200
The mention of de facto rights is in fact a reference to
Permissions to Occupy (PTO), a historical form of tenure
in former homelands now considered insecure by banks.
Within these areas, PTOs should be converted into free ti-
tles or leaseholds by 2005. 201 The strategy paper notes that
the conversion process has been slow due to constraints on
200
Republic
of
Namibia.
(2002).
National Poverty Reduction Action Plan. National
Planning
Commission,
Windhoek,
p.
54.
201 Ibid.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
valuation of land by local authorities. Also, businesspeople
who are holders of de facto title are giving up their right to
the land by selling it. To solve this, the ministry concerned
intends to embark on an awareness campaign and to speed
up the process of creating valuation rolls. More surveyors
and town planners will be trained to meet the target of creat-
ing town-planning schemes and guide plans for all towns and
settlements by 2005.
The NPRAP notes that the proclamation of towns and vil-
lages has brought relief to businesspeople, but not to poor
citizens living in informal settlement areas, who are excluded
from the opportunity to obtain title. It says that in the rapidly
expanding urban areas, many poor people have no official
rights to the land on which they have settled. Further it is
difficult for poor rural people who come to the urban areas
in search of job opportunities to find vacant land on which
to settle. 202 The action recommended is the flexible land
tenure system in towns and municipalities. The document
states that: The outcome of the efforts shall be measured
by how many communities in targeted towns have registered
starter titles and how many have used these titles as collateral
for loans (both for housing and small business). 203
Rural land
In general, rural Namibia gets a lot of attention in the
NPRAP, with a special mention in almost all the sectoral
strategies. However, there is little mention of the role of
rural land in poverty alleviation. Land redistribution may be
considered a vehicle for poverty alleviation, and the NPRAP
mentions that the skewed distribution of commercial land
has enhanced household vulnerability, and concentrated
poverty among the majority of the nations farmers.
Gender
One of the principles that underlies all poverty reduction
strategies is ensuring gender responsiveness because poverty
has a gender dimension that should be recognised through-
out the design, implementation and monitoring of poverty
202
Ibid,
p.
55.
203
Ibid.
reduction measures. 204 Apart from this, gender issues as
a whole receive little attention, and the link between gender,
land reform and poverty does not feature.
5.3 Summary
The NPRAP proposes the flexible tenure system as a means
for the urban poor and people in informal settlements to
register their rights to land. It sees this extension of tenure to
the poor as a means for them to obtain loans and start busi-
nesses. While providing urban tenure security for the poor
is commendable, relying on collateralisation as a product
of this process is optimistic, especially if the experience of
other countries is considered.
It is important that tenure security provision itself be seen
as a poverty alleviation strategy. Rural land reforms on the
other hand are scarcely mentioned, and in the light of the
widely known land redistribution process in Namibia, more
direct linkages would have been useful. Finally, Namibia fails
to adequately reflect gender issues in its programmes and
strategies, which is an obvious shortcoming.
204 Ibid, p. 21.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
6 Land management Systems
6.1 Main institutions involved
Figure 6.1 Organogram of main land management institutions
Ministry of Lands, Resettlement and Rehabilitation:
Responsible for overall land use planning
Ministry of Regional & Local Government
and Housing: responsible for urban land use
planning
Communal Land BoardsInter-Ministerial Standing Committee For
Land Use Planning (IMSCLUP)
National Planning
Commission
Directorate of
Decentralisation
& Co-ordination
Directorate of
Regional & Local
Government
Department of Land
Reform, Resettlement and
Rehabilitation
Department of Land
Management and Administration
Directorate of Finance,
Human Resources &
Administration
Directorate of
Housing, Habitat &
Technical Services
Coordination
Directorate of
Resettlement
Directorate of
Lands
Surveyor General
Directorate of
Rehabilitation
Directorate of
Planning, Research,
Training and
Information Services
General
Services
Division
Internal AuditDirectorate of
Valuation and Estate
Management
Directorate of
Deeds
Directorate of
Survey and
MappingRegistrar of Deeds
Division of
Cadastral and
Geodesic Surveys
Division of
Mapping and GIS
Division of Planning,
Marketing and
Administration
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Figure 6.2 Organogram showing regional and local governance institutions
Ministry of Regional & Local Government and Housing
Office of Surveyor
- General
Namibia Planning Advisory Board (NAMPAB) + Townships
Board (to be replaced by the Urban and Regional Planning
Board): Considers subdivision and consolidation applications
- Local
Government
Coordination,
- Town and
Village
Administration,
- Regional and
Local Government
Decentralisation
and Coordination
50 Local Authorities
13 Regional Councils with
102 Constituencies
Housing
Co-ordination
Division
Technical
Coordination
Division
Habitat
Co-ordination
Division
Human
Resources
Division
IT and
Data
Services
Finance
Division
Internal Auditing
Division
Planning
Division
Financial
Management
Division
Legislation
& Policy
Development
Division
Decentralisation,
Planning &
Development Support
Division
Directorate of Finance, Human Resources and
Administration
Directorate of
Decentralisation &
Co-ordination
Directorate of Regional and Local
Government
Directorate of Housing, Habitat and
Technical Services Co-ordination
0
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
6.2 Informal settlements and
the formal system
Land use planning
The MRLGH is drafting a Town and Regional Planning Bill,
which will replace the two ordinances that have governed land
use planning and management in Namibia up to now. 205 The
Bill seeks to replace the Namibia Planning Advisory Board
and the Townships Board with one Urban and Regional
Planning Board. The new board will coordinate, evaluate
and supervise structure planning, zoning schemes, planning
policies and standards, subdivision and consolidation of land,
establishment of new towns and other planning matters. The
Bill requires that national, regional and urban structure plans
must be prepared. 206 These plans will have statutory status in
terms of the new Act. It will therefore be possible to enforce
its provisions for a specific area.
The national structure plan being drafted will deal with spatial
aspects of Namibias social and economic development. The
regional councils must prepare regional structure plans and
sub-regional structure plans.
The Bill also requires local authorities to prepare zoning
schemes. These schemes will govern the land use rights of
each erf in that area and owners will apply to their local au-
thority to rezone land. Furthermore, the Urban and Regional
Planning Board will consider subdivision and consolidation
applications, after which the procedure will continue to the
office of the Surveyor General.
This Bill will provide the basis for the integration of all secto-
ral aspects related to sustainable development in the regions.
The opportunity exists to merge this strategic physical
planning process with the Flexible Land Tenure Systems of
the various local authorities to ensure integration and avoid
overlapping responsibilities. 207 As the MLRR developed the
205
The
Town
Planning
Ordinance
18
of
1954
and
the
Townships
and
Division
of
Land
Ordinance
11
of
1953.
206
Op.
cit.,
57,
p.
5.
207
For
example,
Section
7
(e)
of
the
Flexible
Land
Tenure
Bill
provides
that,
In
order
to
satisfy
itself
of
the
desirability
of
the
establishment
of
the
scheme
concerned,
the
relevant
Flexible Land Tenure Bill, but the MRLGH is responsible for
its implementation, the need for strong coordination between
the two is crucial. 208
The upgrading and development of informal settlements
in Namibia is subject to formal town planning schemes. A
problematic consequence of this is that building standards
are often inappropriately rigorous for informal residential
development. In addition, almost 80 percent of building ma-
terials for the housing sector are imported and consequently
very expensive. 209
The extreme poverty of informal settlers makes modern
housing materials and construction almost nonexistent.
Shacks are often built with any materials that can be found
and these do not provide adequate protection against the
weather. Temperatures in Windhoek can vary widely, from
below 5°C up to 40°C, due to its high elevation and dry desert
climate. Insufficient access to electricity makes informal set-
tlers dependent on fuels such as wood and paraffin for cook-
ing and heating. A recent survey conducted by the Renewable
Energy and Efficiency Bureau of Namibia showed that wood
costs an informal household as much as N$10 (U$1,66) per
day amounting to N$300 (U$50) per month to satisfy only
basic cooking needs. 210 This excludes consumption of paraf-
fin and candles for lighting, which are also the predominant
cause of shack fires.
In recent years local authorities have become more flexible
with informal settlers and their needs to develop the land
they reside on, according to Dr. Anna Muller of NHAG. For
authority&
(e)
must
consider
all
relevant
legislation
and
any
town
planning
scheme
applicable
to
the
area
in
which
the
piece
of
land
concerned
is
situated.
208
Ibid,
p.
5.
209
Ibid,
p.
466.
210 Information obtained from R3E Bureau, July 9 2004. The R3E Bureau, a non-profit
association,
conducted
research
in
early
2004
in
collaboration
with
the
Ministry
of
Mines
and
Energy,
the
SDFN,
NHAG
and
the
city
of
Windhoek.
The
researched
aim
to
identify
low-cost,
do-it-yourself
methods
to
improve
the
comfort
of
shack
homes
by
making
them
less
susceptible
to
the
external
climate.
A
shack
was
refurbished
using
reeds
from
riverbeds,
off-cut
cloth
materials
from
a
local
textile
factory
and
cardboard
from
a
nearby
dumpsite
to
create
effective
insulation.
Measurements
were
taken
throughout
this
process
and
the
refurbished
shack
became
4°C
cooler
during
the
day
and
2°C
warmer
at
the
night.
The
Habitat
Centre
building
in
Katutura,
in
which
the
R3E
is
located,
was
built
almost
entirely
from
low-cost
building
materials
such
as
clay
and
car
tyres.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
example, towns like Otjiwarongo, Keetmanshoop, Omaruru
and Henties Bay have given permission to low-income
households to build with clay.
The development of infor-
mal settlement areas is recognised by some town planning
schemes. Windhoek, for example, has a clear strategy about
identifying informal settlement areas, how they should be
upgraded and where informal settlers should reside. Johan
Oppermann, a town planner with the company Urban
Dynamics in Windhoek, is also of the opinion that conven-
tional planning laws have become more flexible in recent
years in terms of providing for the specific needs of informal
settlements (e.g. provision of site sizes, road widths, flood
prone areas etc.).
Where the land registration process is linked to planning
regulations, Muller says that certain restrictions have been
overcome with the communal block development. Local au-
thorities regulations currently seem to require that a block in
its totality should meet certain planning requirements, such as
that the block should be treated as a single development and
not as individual plots. As a result, planning approvals do not
hold back registration of land rights, because block develop-
ment does not require registration of individual rights, only
that of the community. However, the approval of block and
land development is generally slow and undeveloped land
usually needs to be serviced. This requires financing, which is
not always that readily available to low-income households.
One view is that the Namibian cadastral system is unable to
meet the demand for surveyed plots in informal settlements,
which further slows down the delivery of land to informal
settlers. Initiatives are underway to generate computerised
coverage of all cadastral and administrative boundaries, which
will benefit the processes of land evaluation, land taxation,
development planning, land administration and the flexible
land tenure system. 211 However, it remains to be seen if
these initiatives will meet the demand for surveyed plots in
informal settlements.
211
University
of
Melbourne.
(2003).
Namibia
Cadastral
Template
Report.
A
Worldwide
Comparison
of
Cadastral
Systems,
Cadastral
country
reports
based
on
a
jointly
developed
PCGIAP/FIG
template,
Department
of
Geomatics
of
the
University
of
Melbourne,
p.
7.
Local authority planning laws will play an important role in
the implementation of the Flexible Tenure Bill. According
to Section 10(1)(e), the holder of a starter title may transfer
his/her rights to any other person, whether that other person
is his/her heir or whether the transfer is another transaction
recognised by law. Section 12(6)(c) however provides that the
relevant authority may impose conditions, prohibiting the
transfer of the plot to another person. 212 While the alloca-
tion and registration of blocks is provided for in the Flexible
Land Tenure Bill, town planning aspects are laid down exten-
sively in the Flexible Land Tenure Draft Regulations.
To overcome some of the above-mentioned problems con-
cerning informal settlements and the formal system, plans
must be adapted to the reality of informal settlements, and
informal settlements must be legally isolated from conven-
tional planning laws.
Restrictive conditions of title
Restrictive conditions of title are registered against the title
deeds of erven within a proclaimed township, restricting use
in a particular manner. Such restrictive conditions could in-
clude prohibiting the subdivision of property or the erection
of a building unless it complies with certain requirements
(e.g. that it must have a specific type of roof). The sale of
property may also be restricted in terms of the provision of
a will, for example when a parent bequeaths a property to
his/her child on the basis that the property may not be sold
before the child has reached a certain age. 213 A key intention
of the Flexible Tenure Bill is to remove restrictive conditions
in regard to particular parcels of land in informal settlements.
Freed from such conditions, a parcel of land can be planned
as needed, without the need for a conveyancer for complex
212
These
conditions
are:
(i) before a specified period of time since the acquisition of the rights has elapsed; (ii)
unless
the
permission
of
the
relevant
authority
has
been
obtained;
or
(iii)
unless
any
other
specified condition has been fulfilled.
213
Restrictive
conditions
of
title
imposed
on
land
by
wills
and
similar
instruments
can
be
removed
in
terms
of
the
Immovable
Property
(Removal
of
Restrictions)
Act,
Act
94
of
1965.
The
Removal
of
Restrictions
Ordinance
15
of
1975
provides
for
the
alteration,
suspension
or
removal
of
restrictions
on
the
usages
of
land.
Applications
are
made
to
the
High
Court
for
an
order
authorising
the
lifting
of
the
prohibition,
which
will
be
granted
only
if
there
is
a
good
reason
why
it
should
be
lifted.
Namibia
Estate
Agents
Board.
(2001).
Real Estate Study Guide. p.
47.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
transactions, but instead with a local property officer using
pro forma computer forms.
Local authorities in Namibia usually have their own master
plans, development frameworks and town planning schemes
that determine a broad land use pattern for present and future
development. A town planning scheme is used to regulate
services such as the protection of public health, safety and
welfare and contains the following basic information: 214
" Use Zones: The purposes for which buildings may be
erected and used, for example, residential;
" Density Zones: Information concerning the number
of dwellings that may be erected on a property, or a
minimum erf size that is required for a house;
" Floor Area Rations: The total floor space that may be
built on a property;
" Height: The number of storeys that that are permitted
on a property;
" Coverage: The amount of land that may be covered by
the buildings;
" Building Restriction Areas: The distance from the
street boundary, or the distance from the side and rear
boundaries that may not be built upon. Commonly re-
ferred to as building lines; and
" Parking: The number of parking bays required in de-
velopments.
While the allocation and registration of blocks is given at-
tention in the Flexible Land Tenure Bill, a shortcoming in
the Bill is that the town planning aspect is not covered. As a
consequence, the formal requirements for a town planning
scheme listed above would also apply to informal settlements,
and the self-help housing constructed under the Bill would
violate town planning regulations. To prevent this, town
planning aspects will have to be linked to the Bill.
6.3 Dispute settlement mechanisms
Land disputes are formally dealt with through the civil courts.
The CLBs under the Communal Land Reform Act are sup-
214
Ibid,
p.
50.
posed to deal with immovable property disputes, such as cus-
tomary land rights. Community courts are not yet in operation,
but are expected to deal with movable property disputes only.
However, according to Edith Mbanga, National Coordinator
of the SDFN, people living on block systems usually deal
with urban land disputes through internal leadership struc-
tures, rather than seeking immediate civil legal advice. She
describes civil court procedures as sometimes complicated,
formal and too expensive for low-income households to
afford.
Traditional authorities, chiefs and headmen play a mediatory
role in settling land disputes in communal areas, but usually
not on proclaimed town lands. The challenge in dealing with
land dispute settlement mechanisms in communal areas is to
break with the tradition of discriminatory practices against
women and their right to obtain and inherent land.
The Communal Land Reform Act, Act 5 of 2002, has been
introduced to address these discriminatory practices, which
are still prevalent in some customary land dispute mecha-
nisms. However, contrary to the Acts provision to address
discriminatory practices against women, if customary law as
provided under section 26(2)(b) of the Act (see discussion
of Customary Law) is to be applied rigidly, it would surely
have a detrimental effect on promoting gender equality and
the improvement of the position of women in traditional
Namibian society.
Windhoek has recently adopted a strategy to try to avoid land
invasions with the assistance of community leaders, especially
in upgrading areas.
6.4 Most relevant jurisprudence
In the case of Government of the Republic of South Africa and
Others v Grootboom and Others (1) SA 46 (CC), the South African
Constitutional Court had to decide whether section 26 of the
South African Constitution imposes a duty on the state to
provide temporary housing or shelter to persons in desperate
need. This precedent-setting case charted a new course for
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
the judiciary in South Africa as it sought to give substantive
meaning to the socioeconomic rights in the South African
Constitution. It allowed for the evolution of constitutional
thinking in terms of the economic and social disparities be-
tween the rich and the poor.
The extent to which Namibians can rely on the judgment to
obtain individual relief when faced with situations of home-
lessness is still open for debate. Even though South African
judgments have considerable weight in Namibian courts, it
should be noted that the Namibian Constitution does not
have a provision such as section 26 of the South African
Constitution, which provides housing rights protection to the
vulnerable.
Art. 95 (e) of the Constitution nevertheless requires the state
to actively promote and maintain the welfare of people by
adopting policies aimed at ensuring that every citizen has
a right to fair and reasonable access to public facilities and
services in accordance with the law. Furthermore, Namibia
has subscribed to a number of international treaties
that are binding on the state by virtue of Art. 144 of the
Constitution.
Articles 144 and 95 (e) of the Constitutional Principles of
State Policy create the condition of an enforceable right to
access to housing. In terms of Art. 144 of the Namibian
Constitution, international public law forms part of Namibian
law. Art. 144 provides that the general rules of public in-
ternational law and international agreements binding upon
Namibia shall form part of the law of Namibia.
The 2001 case of Kauapirura v the Herero Traditional Authority
is also important in this regard (for a fuller discussion of this
case, see Customary Law section). However, as a result of
the ultimate out-of-court settlement, the constitutionality
of the common law rule excluding children who were born
out of wedlock from their father on an equal footing with
legitimate children was left unchallenged.
The 2003 case of Berendt v Stuurman held that several sections
of the Native Administration Proclamation were unconstitu-
tional violations of the prohibition on racial discrimination in
Art. 10 of the Constitution. As explained earlier, the Native
Administration Proclamation treated the estates of deceased
blacks as if they were Europeans in some circumstances,
while providing in other circumstances that they should be
distributed according to native law and custom. The Berendt
case has helped to speed up the removal of some of the last
remaining discriminatory practices concerning inheritance
and marital property in Namibian legislation.
Finally, since 1996 the Marriage Equality Act has been used
to solve disputes during and upon dissolution of civil mar-
riages. Case example is S v Gariseb 2001 NR 62 (HC). In this
case the abolition of marital power makes it possible for a
husband to be charged with theft of his wifes property in a
marriage in community of property.
7 Local Laws and Policies
7.1 Local authority regulations
Most municipal or town bodies make their own regulations
and bylaws and have the authority to enforce these rules.
Town planning schemes are essential for the management
and control of land use and land development and are usu-
ally designed to meet the needs of the specific municipal or
town body.
Katima Mulilo, in the Caprivi region, is the only town in
Namibia that does not have a town planning scheme and as a
result finds it difficult to manage and control land use. 215 In
towns like Katima Mulilo and Okakarara the planning system
has virtually no impact on the emerging urban form and this
raises a serious question about whether conventional physical
215
Katima
Mulilo
was
proclaimed
as
a
town
in
1995.
According
to
the
Chief
Control
Officer for Katima Mulilo Town Council, the town council is currently busy designing a
town
planning
scheme.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
planning that assumes high levels of formalised control can
adequately deal with the urban challenge.
Town, regional and local bodies have the power to legislate
regarding their own affairs as long as their acts and conduct
do not conflict with the overall guidelines in the Constitution.
Their laws and acts are subject to judicial review. 216
The draft National Land Use Planning Policy mentions that,
while the local authority will still handle the land administra-
tion of each urban area, the MLRR, MRLGH and the local
authority council may establish a local property office or land
rights office to deal with the registration of the starter and
land-hold titles.
7.2 Windhoek housing policy 217
Between 1991 and 1999, Windhoek developed a number of
formal low-income housing schemes. At the time, the exist-
ing serviced plots were unaffordable to the vast majority of
the poor. In response to the influx of poor migrants, the
Windhoek city council developed three reception areas
that were intended to be temporary. It was believed that once
a new household had established itself in the city, it would
move out of the reception area onto a fully serviced area
somewhere else. The provision of the reception areas was a
top-down emergency initiative, developed and implemented
by city planners and engineers to deal with what was per-
ceived at the time as a temporary nuisance. 218
However, income levels of those households living in recep-
tion areas remained very low and they still occupy these re-
ception areas. In addition, efforts by the city to resettle some
of these households have proved to be very slow and have
been met with some resistance, while spontaneous settlement
beyond the reception areas has also grown significantly. 219
216
Opperman,
J.
Interview
with
author,
July
20
2004.
217
Windhoek
Housing
Policy
adopted
in
2001.
Information
on
the
Housing
Policy
of
the
City
of
Windhoek
was
obtained
from
Ms
JS
de
Kock,
Corporate
Legal
Advisor
of
the
Municipality
of
Windhoek.
218
Op.
cit.,40
219
Ibid,
p.
22.
Lessons learned from this experience include the observa-
tion that the participation of informal settlers is essential in
the initial planning and implementation of low-cost housing
schemes. Affordability is another key consideration in this
process. Moreover, security of tenure appears to be a major
requirement in the case of urban settlers and needs to be a
key component of upgrading/housing programmes. 220
Currently, the Windhoeks housing policy serves as a guide-
line on how access to housing and security of land tenure is
to be addressed. The objectives are to:
" Strive towards providing all low-income target groups
of the city with a range of access and housing options
in accordance with their levels of affordability;
" Establish uniform housing standards for different de-
velopment options;
" Set parameters for orderly incremental upgrading;
" Facilitate access to land, services, housing, and credit
facilities;
" Establish a participatory process to self-reliance and
partnerships and to facilitate self-help development;
" Secure land tenure; and
" Promote a safe and healthy environment and increase
the quality of life.
The municipality recognises that facilitating access to land,
services and housing is inextricably related to affordability,
cost recovery, sustainability and replicability. The ability to
extend services and housing is increasingly dependent on
cost recovery via contributions, user charges, taxes and loan
repayments.
The Windhoek city council receives no subsidy for providing
for the needs of the poor.
Without subsidy, only about 16 percent of the 17,700 low-
income households currently in need of land can afford a
300m2 plot in a communally serviced township. This fact
makes low-income land delivery through means of private
ownership in the city particularly difficult, and invariably slow.
220 Ibid, p. 18.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
The lack of available land means that increasing numbers of
urban migrants will be forced to settle on marginal land.
Although the council has a credit control policy, self-help groups
are accountable and have to act in solidarity to effect payments
for land, services and housing. In this regard the policy mentions:
" Incentives for regular payments can increase access
to housing loans or upgrading erf loans and different
types of land title. For example, the control body is
to give defaulting members warnings to comply and
explain what happens if default in payments persists.
Evictions should be the last resort;
" A more humanitarian approach is followed; officials
are educated to not act aggressively, but according to
good governance principles; and
" Face-to-face meetings with communities twice annu-
ally on an ad hoc basis to ensure that information is
conveyed and to stress responsibilities for payments.
In case of default, a first alternative is that relatives may take
over the obligations of the defaulter. Should payments not
follow, eviction can be contemplated, provided that the prin-
ciples of the Local Authorities Act are adhered to.
8 implementation of Land
and Housing rights
8.1 Implementation of policy and legislation
Due to the political sensitivity associated with agricultural
land reform, the MLRR seems to have focused less on the
urban Flexible Land Tenure system. The Bill has still not
been adopted, which causes problems. For example, a case
occurred where a block member left and upon return found
another person on his plot. As long as the Bill is not yet law,
such problems are likely to occur.
The MLRR has been responsible for the drafting of the
Flexible Land Tenure Bill, but the MLRGH will be responsi-
ble for its implementation. It would have made sense if both
ministries had been involved from the beginning in drafting
and implementation.
There also seem to be coordination difficulties between vari-
ous ministries involved in the implementation and administra-
tion of the National Housing Policy. Currently the MLRGH
plays the leading role in providing the framework from which
the Housing Policy is being implemented. Regular meetings
on the overall National Housing Policy have not been held
and a coordination mechanism does not yet exist.
The MLRR is responsible for implementation of the
Communal Land Reform Act, the land policy and the draft
land use planning policy.
The Ministry of Justice and the courts are responsible for the
implementation of marital property and inheritance legisla-
tion. Implementation of this Act in practice will need to be
monitored to assess the impact on inheritance patterns of
customary land, as well as the homestead and livestock on
that land. Law reform related to other property is expected
to take place in relation to legal recognition of customary
marriages. The LAC is conducting a study on inheritance
practices under customary law, with a view to informing law
and policy makers.
The LAC has also conducted training for the government
and NGO sector on various gender issues involving new
legislation. 221
8.2 Role of the judiciary
There are problems associated with the administrative side
of Magistrates Courts. One complaint is that magistrates
often lack knowledge on the interpretation of the Native
221
Initially
there
was
some
resistance
against
the
Combating
of
Rape
Act
2000
and
Combating
of
Domestic
Violence
Act
4
of
2003
from
certain
male
MPs
during
the
discussions of these Bills. Both these Acts represent a good reflection of gender issues.
The
LAC
was
invited
by
the
Law
Reform
and
Development
Commission
to
give
input
to
the
Acts.
The
LAC
also
campaigned
and
lobbied
considerably
for
both
Bills
to
be
passed.
An
awareness
raising
campaign
was
carried
out
among
men
living
in
rural
areas
about
the
new
legislation.
In
2000
the
LAC
held
a
conference
called
Men
Against
Violence
Against
Women,
with
men
from
12
regions
attending.
This
campaign
raised
some
attention
to
the
issues
of
violence
and
discrimination
against
women.
The
LAC
also
ran
a
TV
campaign
in
2000
focusing
on
domestic
violence.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Administration Proclamation and on customary law in gen-
eral. There are also problems in terms of issuing letters of
executorship (i.e. such letters being issued on the same estate
to different executors). Furthermore, no formalities exist in
terms of following up on liquidation and distribution ac-
counts. In other words, after the Magistrate Court has issued
a letter of administration, the matter is seen as having ended
there. If someone wants to withdraw a letter of administra-
tion issued by the Magistrate Court, he or she has to apply to
Master of the High Court, which could be a lengthy process.
In addition, case files are either badly filed or lost.
Lack of access to courts and a general lack of knowledge
about their functions are also a major problem among, for
example, surviving spouses. Therefore, inheritance disputes
are mostly handled by headmen, chiefs or even arbitrarily by
family members.
8.3 Cultural issues
While discriminatory customary practices and patriarchal
attitudes are a problem in the rural areas, they seem to be
less of a factor in hampering the implementation of the
flexible land tenure system. For example, in Windhoek many
of the women who have access to starter/land-hold titles
are often single mothers who are the sole breadwinners for
their children. 222 Also, as was mentioned earlier, women in
especially Windhoeks informal settlement areas are actively
involved in savings schemes to improve their housing condi-
tions. The SDFNs policy is to encourage women to take part
in saving schemes and the construction of their houses. In
Ms. Mbangas experience, women tend to be more punctual
with the repayment of loans than men.
8.4 Race and class issues
Under apartheids racial lens, a minority of the population
(white) was given access to privileges (better income, work
opportunities, education, health, housing, etc.), while the
majority (black) was excluded. In the post-independence era,
222
Data
provided
by
SDFN.
the legacy of problems inherited from these racist policies
has increasingly become intertwined with issues of class.
Since independence, a growing black middle class has
emerged, along with a smaller number of very wealthy blacks.
However, most of the black population remains very poor.
In addition, many whites still have a very high standard of
living in relation to their black compatriots. Those whites
who have found the post-independence political dispensa-
tion untenable have left for greener pastures in Europe,
North America and Australia.
8.5 Access and affordability issues
Affordability of serviced municipal land is subject to land
management and layout regulations. When informal settle-
ments are to be proclaimed, layout plans have to be submit-
ted to the Namibian Planning Advisory Board (Nampab) and
the Townships Board for approval. To overcome issues per-
taining to access and affordability, plans must be adapted to
the reality of informal settlements and informal settlements
must be legally isolated from conventional planning laws.
While the allocation and registration of blocks are given at-
tention to in the Flexible Land Tenure Bill, a shortcoming in
the Bill is that the town planning aspect is not given sufficient
attention.
The Townships Board has recently rejected plans for the
layout of an informal settlement in Swakopmund known
as the Democratic Resettlement Community based on
concerns that the geometric design only allows for four rows
of erven between two streets with limited, unusable access
to the middle two rows of erven. 223 It is feared that such
a design may soon lead to urban decay and slum conditions.
However, the layout design indicates that cost factors were of
major importance, while social needs, acceptability, climatic
(wind, temperature, fog) and geographical conditions were
low-ranking issues. 224
223
Barnard,
M.
(2004).
DRC
layout
plan
nixed, The Namibian.
August
3.
224 Ibid.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
The regulations prescribe that certain environmental and
public health regulations have to be adhered to, but they also
challenge town planners to design affordable and accessible
layout plans.
Access to basic services remains a problem for a great many
low-income Namibians. For example, the present legal frame-
work for water in Namibia is based on the Water Act 54 of
1956, an act that was developed for South Africa, and which
effectively excludes non-land owners the majority of the
population from having adequate and equitable access to
water. 225 Government intends to replace the Act and update
its entire regulatory framework for managing water resources.
The new Water Bill, which is still in the pipeline, would give
rise to new institutions to regulate the industry, among these
a pricing regulator to deal with issues of affordability. The
new policy framework is designed to redress inefficient water
management. 226
In April 2004, the Minister of Agriculture, Water and Rural
Development, Helmut Angula, denied claims that the gov-
ernment was making water unaffordable. He said that water
provision required investment, and that it was impossible to
provide free water in Namibia. The standard rate is just over
N$4 for a cubic metre of water per month. 227 State-owned
NamWater maintains that it operates on a cost-recovery basis
and that all profits are ploughed back into building and main-
taining water infrastructure. 228
8.6 Educational and capacity-building issues
Educated city dwellers are generally aware of their inheritance
rights and of legal instruments, such as written wills, which
do not exist in customary inheritance systems. 229 Widows
and children among educated urban residents as a result
enjoy more security and protection from the looting of their
225
Op.
cit.,
1287
p.12.
226
Ibid,
p.
13.
227
Dentlinger,
L.
(2004).
No
Free
Water
says
Angula,
The Namibian.
April
13.
228
Ibid.
229
Op.
cit.,
1843,
p.3.
xiii.
property by greedy family members through the use of wills.
However, this does not mean that the influence of customary
inheritance systems does not exist in urban areas.
The LAC has done much educational work on human rights
in recent years. However, no campaign focusing specifically
on womens equal land, housing and property rights has been
undertaken. Legal aid is provided by the Ministry of Justices
Directorate of Legal Aid, which is a statutory body estab-
lished by the Legal Aid Act, 1990 (Act No. 29 of 1990). As
per the provisions of Art. 96(h) of the Constitution, the pri-
mary responsibility of this directorate is to render legal aid to
those who cannot afford the services of legal practitioners.
8.7 Impact of HIV/AIDS
The impact of HIV/AIDS can lead to distress sales of land.
This phenomenon has not yet reached the same critical levels
as in some other African countries. But reportedly people
who are HIV-positive do find it increasingly difficult to get
access to home loans. 230
9 Best Practices
9.1 The Land Management Diploma 231
In the late 1990s, MLRR and the International Institute for
Aerospace Survey and Earth Sciences in the Netherlands
agreed on a human power development project in Land
Surveying, which has since been institutionalised at the
Polytechnic of Namibia. The project aims to generate a team
of trained Namibian staff to strengthen the Directorate
of Survey and Mapping (DSM). It also aims to lay a good
foundation for the production of future Namibian land-use
planners, land surveyors, geodesists, hydrographers, pho-
togrammetrists, cartographers, Geographic Information
System and Remote Sensing Experts. Twenty staff members
have graduated from this programme so far and joined the
230
Information
obtained
from
the
LAC
Aids
Law
Unit.
231
Information
obtained
from
Faculty
of
Natural
Resources
and
Management
at
the
Polytechnic
of
Namibia.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
DSM. Included in the package are a number of fellowships
for training abroad in land surveying.
The Land Management Diploma Programme, which was
introduced in 2000, includes five specialised fields: Land Use
Planning, Land Measuring, Land Valuation, Urban Land Use
Management and Land Registration, all sharing core modules.
Students are required to choose their specialty in semester
one. The curriculum emphasises theory and practice in
equal measure. Diploma students must undergo compul-
sory in-service training, in the third and fifth semesters of
the programme under the supervision of experienced land
surveyors. It is expected that graduates, through their newly
developed skills acquired through practical training, will help
the ministry implement, maintain and develop the Flexible
Land Tenure System. The Polytechnic of Namibia is also to
introduce a B. Tech qualification in 2005 and 2006, which
will enable the paraprofessional Land Management Diploma
graduates to upgrade their qualifications and become full
professionals.
9.2 CBO, NGO and government partnerships
The SDFN, NHAG and MLRGH have established effec-
tive partnerships to find solutions to informal settlement
challenges. Regular meetings are held between the ministry,
NHAG and the SDFN where issues of loan schemes, land
ownership and servicing are discussed and prioritised before
actions are taken.
Since independence, the SDFN and NHAG have been car-
rying out functions for local authorities, which have freed
up resources in the local authority administration for other
pressing tasks. At the same time, the SDFN and NHAG have
also become aware of the limitations (especially financial) of
the local authority, and they do not demand service improve-
ments that neither they nor the local authority can afford.
In this regard, the Twahangana Loan Fund is an excellent
example of how CBO, NGO and government partnerships
can meet each other halfway in order to provide financial
access to the poor.
9.3 The city of Windhoek
Windhoek, as the largest municipality in Namibia, has taken
a leading role in developing solutions to informal settlement
challenges. Pending adoption of the Flexible Land Tenure
Bill, the city has demonstrated a willingness to overturn con-
ventional approaches to standards and regulations to reach
low-income groups with improvements that are affordable
to them.
Windhoeks land use and town planning policies also acknowl-
edge the importance of representative organisations, seeking
to create and nurture them to strengthen local networks
and group savings schemes in low-income neighbourhoods.
Consequently the foundations are in place for a cost-effective
and participatory strategy that provides better housing and
services for the most marginalised members of the society.
In practice, many of the provisions of the Flexible Land
Tenure Bill have already been implemented, except for the
formal issue of starter and land-hold titles.
9.4 The social and economic empowerment of
women in the SDFN
Women have fewer opportunities than men in terms of raising
their income and socioeconomic status to acquire secure ten-
ure in urban areas. However, the majority of SDFN members
are women, who are playing a significant role in participating
and managing group loan schemes to obtain secure land
tenure and housing for themselves and their families.
9.5 Low-cost alternatives to better housing
The Renewable Energy and Efficiency Bureau of Namibia,
a non-profit association, in collaboration with the Ministry
of Mines and Energy, the SDFN, NHAG and the city of
Windhoek has identified low-cost, do-it-yourself methods
of improving the comfort of shack homes by making them
less susceptible to the external climate. Keeping in mind that
the R3E Bureau project is still a fairly new project, further
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
research is needed to test whether the Windhoek experience
can be replicated in other parts of the country.
9.6 Sustainable development and environmental
health programme
In 2001, members of the SDFN started an environmental
health programme to ensure sustainable improvements in
their lives. This programme addresses issues related to HIV/
AIDS, tuberculosis, food security, environmental hygiene
and communications between emergency assistance in the
communities. In addition, the federation works closely with
health workers at clinics where an emphasis is placed on first
aid training and the provision of home-based care for people
with HIV/AIDS.
10 conclusion
At independence, the new government began to confront
a range of complex challenges. These included the socio-
economic consequences of rural-urban migration, and the
growth of large-scale unplanned urban settlements often
without secure tenure or basic needs such as clean water and
electricity. The government responded by developing new
policies that could accommodate the growing part of the
population living in low-cost and informal settlements in a
flexible and efficient manner.
When the MLRR introduced the Flexible Land Tenure
System, it raised expectations of improving the overall liv-
ing conditions of the urban poor. But some obstacles still
exist before the system will be able to operate smoothly.
First, there is a lack of technical skills to secure its long-term
sustainability. However, it is expected that newly graduated
Land Management Diploma holders from the Polytechnic
of Namibia will strengthen the technical capacity of the
ministry in the near future. Fortunately, there is firm political
support for the system. Stakeholder organisations such as
SDFN, NHAG and the various group loan schemes have
shown an eagerness to make this a long-term success. The
challenge now is to proceed to full implementation.
The government has committed a substantial amount of
funding to the Flexible Land Tenure System since 1998.
However, given current funding levels, it may take at least
two decades before the benefits of secure title are extended
to the majority of poor people living in informal settlements.
It is therefore important that the benefits derived from the
system are maintained to keep up the momentum, to ensure
constant social and political support, and to prevent the
emergence of large-scale doubts about the system.
A further important conclusion emerging from this study is
that law reform should focus more on equitable distribution
of property during divorce or upon death. Vulnerable peo-
ple, such as rural women and orphaned children, should be
protected from existing discriminatory and unconstitutional
customary laws. Significantly, law reform on inheritance of
communal land has already taken place to protect women,
while law reform on other property, which will take place in
the context of the recognition of customary marriages, is
still forthcoming. It will be necessary to assess the use of the
Communal Land Reform Act in practice once it has been in
place for some time to determine its effect on the inheritance
of other forms of immovable property, such as the home-
stead. Community courts, once in operation, will hopefully be
able to address issues relating to movable property disputes,
especially those issues relating to property grabbing where
movable property such as livestock and household goods are
involved.
0
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
11 recommendations
11.1 Flexible Land Tenure Bill
Adoption of the law
No official strategy seems to exist for the implementation
of the new legislation. The Flexible Land Tenure System
has experienced difficulties in getting on the political agenda
because there are other land reform programmes of great
importance, such as the commercial agricultural land reform
programme. As a result, it may be unrealistic now to expect
huge financial investment in the system to come entirely
from the regular government budget provisions. It is thus
recommended that external assistance from major financial
donors should be made a priority to extend the system on a
national scale, at least in the short to medium term.
Scope of the bill
The Flexible Land Tenure Bill could eventually be consid-
ered for rural areas. The successful implementation of the
system in urban areas could help create better integrated and
coordinated land management in rural areas. However, the
immediate focus of the Bill should remain on urban and peri-
urban areas. The real and immediate need for acquiring land
for low-income households is in peri-urban and urban areas
around larger towns, and not necessarily rural villages.
Coordination between ministries
The MLRR has been responsible for the drafting of the
Flexible Land Tenure Bill and will be responsible for its imple-
mentation, in cooperation with the MLRGH. Coordination
between these two ministries is crucial.
In terms of coordinating the legislative, technical and social
context of the proposed flexible tenure system, we recom-
mend that the following institutional model of Christensen
and Juma is adopted: 232
" A local property office draws on local expertise to re-
solve disputes and increase accessibility, while carrying
232
Christensen,
S.
F.
and
Juma,
S.
Y.
(2001).
Bringing the Informal Settlers under the
Register The Namibian Challenge.
International
Conference
on
Spatial
Information
for
Sustainable
Development,
Nairobi,
Kenya,
2-5
October,
p.
9.
out planning, surveying and registration;
" There is a computer-based registration system; and
" A land-hold title audit is conducted by the Windhoek
Deeds Registry.
In addition, land rights offices, which fall under the MLRR,
should be established in local areas and in regional councils,
thus integrating MLRR and MLRGH responsibilities. The
establishment of these offices should take into consideration
areas where the pressure for such services is greatest while
carefully ensuring a sensible regional balance. The first land
rights office should be established in Windhoek to test the
procedures and the computer system before being replicated
elsewhere.
Computerisation of the Flexible Land Tenure
System registration process
A computer-based registration system should be introduced
to handle the registration of starter and land-hold titles. The
advantages would be as follows:
" Starter titles and land-hold titles records would be eas-
ily shared and made accessible throughout the coun-
try;
" It would be easy to convert and upgrade the tenure
type once the data is available in digital form;
" A uniform national system can be maintained without
local variation and therefore facilitate data integration
and consistency; and
" A basis is created for a national land information sys-
tem outside the areas not yet in the national cadastre.
Human and financial resources
A lesson from the introduction of the Communal Land
Reform Act in 2003 is that investment in human resource
capacity building is essential for the successful implementa-
tion of the Act. We recommend that for the Flexible Land
Tenure Bill to be successfully implemented, the MLRR
should invest in human resource training and capacity-build-
ing programmes of land rights officers.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Technical capacity building
The MLRR should consult private-sector experts, especially
in the initial phase of implementation in the areas of plan-
ning, conveyancing, surveying and on-the-job training of
registration officers. In certain local authorities or regional
councils, the duties of a land measurer, a land registration
officer and a land rights registrar could be combined or per-
formed by seconded employees with the necessary skills. For
larger local authorities, the post of land rights registrar may
require a full-time employee.
Participatory governance
It is crucial for the successful formalisation of the Flexible
Land Tenure System that there is understanding, respect
and cooperation between the community and local author-
ity. This has to be constantly worked on to create a positive
environment for future development of the settlement area.
The local authority and the community have to discuss the
formalisation process thoroughly before it is started.
Womens security of tenure
We recommend the following provisions be included in the
Flexible Land Tenure Bill:
" A provision that safeguards womens and childrens in-
heritance rights;
" Compulsory joint starter/land-hold title for spouses or
cohabitants;
" Automatic inheritance of starter/land-hold title for
surviving spouses; and
" Participation quotas for women in decision-making
bodies within blocks.
Town planning
The surveying and registration of rights as proposed in
the Flexible Land Tenure System require the existence of
a framework that will give legal credibility to the processes
through which different rights can be created and conferred.
The system, once it is formalised, will require a simpler and
speedier process of developing layout plans and obtaining
permission to develop urban lands. Plans should be adapted
to the reality of informal settlements, and informal settle-
ments should be legally isolated from conventional planning
laws. The legislation should allow realistic standards for
developing individual plots in areas such as informal settle-
ments.
Access to additional land
Access to additional land for allocation to those displaced
by upgrading processes is an important issue that needs
attention. Unless land is available for starter and land-hold
title developments, continuing migration will put pressure on
existing blocks already formalised in the form of squatters.
We recommend that an assessment of access to suitable ad-
ditional land be made a requirement in the Bill.
Access to justice
The Bill does not make provision for solving disputes regard-
ing inheritance, marriage, informal unions, group rights or
the role of customary functionaries in land designated as
urban. This needs to be considered. An amendment would
make the formal legal system more accessible to low-income
households for example, through decentralisation of dis-
pute-resolution mechanisms related to land.
11.2 Law reform
Relevant constitutional provisions
The Constitution does not directly provide for the protection
of housing rights. We recommend that such a provision be
included.
Communal Land Reform Act
Section 26 of the Communal Land Reform Act violates Art.
10(2) of the Constitution (prohibition of discrimination
on basis of sex) as it allows for inheritance of customary
land rights to sons only. Also, the allocation to the surviving
spouse unless the surviving spouse refuses allocation leaves
the door open for pressure on a widow to relinquish the real-
location of a customary land right to her. We recommend
amendment of Section 26 to remove this discrimination and
bring the law in line with the Namibian Constitution.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Inheritance and marital property law
In light of the Berendt vs Stuurman case, parliament was man-
dated to adopt new legislation to regulate inheritance under
customary law. In the meantime the Native Administration
Proclamation 15 of 1928 has remained applicable. This
discriminatory proclamation should be repealed. Uniform
procedures for succession and inheritance should be applied
to all Namibians, along with a more accessible procedure.
Reviewing the administration of estates procedures
A simplified, more accessible administration of estates
procedure should be introduced, one that will run parallel
with the current, more technical procedure. The difference
would not depend on someones race, but on the value of the
estate. For example, lower level courts, which are accessible
for people from all over the country, should be strengthened
to deal with the administration of estates of a certain value.
Administration of estate procedures should be simplified to
be understood.
NPRAP
Womens equal rights to access, own and control land should
be included in the document. There should also be a provi-
sion to include peri-urban areas or communal areas on the
edges of growing towns and to clarify that the Flexible Land
Tenure Bill/Act covers these areas as long as they are within
a municipal boundary. Such areas can be brought within
municipal boundaries by ensuring that flexible land tenure
is used in formalising such areas and by applying the system
flexibly. The traditional rights existing on those land should
be recognised (traditional urban), and with consent of the
community in that peri-urban area, the traditional land rights
could be registered as land-hold titles within blocks.
Potential conflict between traditional land right registered
under the Communal Land Reform Act and the land-hold
title (essentially a freehold title) under the Flexible Land
Tenure Bill could be avoided through clear demarcation lines.
It is essential that traditional authorities are included in the
decision-making processes.
11.3 Governance
Decentralised local governments should be coupled with the
decentralisation of fiscal powers and resources. However,
it is doubtful that all local authorities currently have the
necessary skills, capacity and financial sources to function as
decentralised units, separated from central government. To
help smaller municipalities to become more efficient and less
dependent on central government, larger nearby municipali-
ties could take up some responsibilities. For example, when
the municipality of Usakos experienced financial difficulties
in 2003, the municipality of Walvis Bay, a more efficiently
run municipality, assisted Usakos with the auditing of its
accounts. In addition, the MRLGH could create a bureau of
experts that the smaller municipalities could draw on.
11.4 Coordination and integration
Coordination between ministries
As mentioned above, coordination between the MLRGH
and the Ministry of Lands, Resettlement and Rehabilitation
is important, as is their cooperation with local authorities.
CLBs, traditional authorities and local authorities will also
need to coordinate in areas where rights may overlap, such
as peri-urban areas.
Incorporating informal settlers
participation and needs into policies
Affordability of serviced municipal land is an important fea-
ture in land management policy formulation and is often sub-
ject to land management and layout regulations. Experience
with informal settlement policy formulation has shown that
top-down decision-making, without incorporating the needs
of those who are affected by such policies, may quickly lead
to urban decay and slum conditions, mainly because of the
concentration of thousands of people in a very small area.
It is important that social needs, affordability, acceptabil-
ity, natural climate and geographical conditions need to be
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
ranked more highly in decision-making concerning informal
settlements.
Strengthening government and
local authority capacity
There is a need for qualitative information about the type of
management and capacity training needed in local authorities.
Strengthening of such services will depend on the availability
of finance. To manage this complex task, local authorities
have to share their experience of good practices, as well as
information about user-friendly mechanisms for generating
targets, costs, timing and capacity.
Integration
Consideration should be given to integrating customary land
tenure systems with the formal urban land administration
systems, especially in communal areas, where customary
tenure features prominently, to ensure tenure security for
all. Integrating customary and formal land administrations
systems could avoid potential conflict in so-called grey areas,
where it is not certain whether a disputed piece of land falls
under the jurisdiction of the town council or traditional
authority.
Access to justice
Civil marriage records should be made available to the public,
along with a link to the Deeds Registry.
The High Court in Windhoek is not accessible to all
Namibians who want to obtain a divorce. We recommend
that the divorce procedure and the administration of estates,
including those under customary law, be decentralised. Lower
level courts, circuit courts, and mobile courts under the su-
pervision of the High Court could also deal with such cases.
Government should also support paralegal networks.
Affordability and acceptability
Affordability and acceptability need to be given greater prior-
ity when informal settlements are proclaimed. Acceptable
environmental and public health standards should be main-
tained with the implementation of informal settlement layout
plans.
11.5 Further research needed
Informal settlement households tend to maintain close links
with their rural areas of origin. This has implications for
their social organisation, economic conditions and long-term
commitment to the city. Updated information on topics such
as cultural, social and economic characteristics of migrating
households, regional variations in the extent and pattern
of migration, and the potential of regional urban growth
centres in curbing or redirecting migration is needed. Such
information can help policy makers develop strategies for
a sustainable economic base for low-income households in
urban settlements.
The block systems in communal areas of Oshakati and Rundu,
for example, are likely to work differently than in commercial
areas, such as Windhoek and Swakopmund. We recommend
further research on block systems in the north.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
rEFErENcES
Amathila, L. (1996). Minister of Regional, Local Government and Housing in Namibia at the time. Habitat II Conference/City
Summit, June 3-24, Istanbul, Turkey. INTERNET. http://www.un.org/Conferences/habitat/eng-stat/4/nam4p.txt, accessed
on June 29 2004.
Benschop, M. (2002). Rights and Reality: Are Womens equal rights to land, housing and property implemented in East Africa? UN Habitat,
United Nations Settlements Programme.
Christensen, S. F. & Juma, S. Y. (2001). Bringing the Informal Settlers under the Register The Namibian Challenge. International
Conference on Spatial Information for Sustainable Development, Nairobi, Kenya, October 2-5.
Christensen, S.F. & Højgaard, P.D. (1997). Report on A Flexible Land Tenure System for Namibia. Ministry of Lands, Resettlement
and Rehabilitation, Windhoek.
Christensen, S.F. Wolfgang, W. & Hojgaard, P.D. (1999). Innovative Land Surveying and Land Registration in Namibia. The
Development Planning Unit, University College, London.
Dentlinger, L. (2004). No Free Water says Angula. The Namibian. April 13.
Dentlinger, L. (2004). Water cuts loom again. The Namibian, November 26.
Gold, J. Muller, A. & Mitlin, D. (2001). The Principles of Local Agenda 21 in Windhoek: Collective action and the urban poor. Urban
Environment Action Plans & Local Agenda 21 Series Working Paper, Human Settlements Programme, IIED, London,
December.
Harring, S. & Odendaal, W. (2002). One day we will all be equal& A socio-legal perspective on the Namibian land reform process. Legal
Assistance Centre, Windhoek.
Hubbard, D. (1999). Proposals for Law Reform on the Recognition of Customary Marriages. Legal Assistance Centre, Windhoek.
Kolberg, H. (1995). International Conference and Programme for Plant Genetic Resources, Country Report for Namibia, July, in Harring
S and Odendaal W. (eds). One day we will all be equal& A socio-legal perspective on the Namibian land reform process. Legal Assistance
Centre, Windhoek.
LeBeau, D. Iipinge E. & Conteh, M. (2004). Womens Property and Inheritance Rights in Namibia. In Hubbard, D. & Zimba, E. (eds).
University of Namibia, Pollination Publishers, Windhoek, Namibia.
Legal Assistance Centre and Law Society of Namibia. (2004). Debt Collection and the Role of the Sheriff/Messenger of the Court,
unpublished.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Menges, W. (2001). Outdated laws face challenge. The Namibian, June 13.
Malan, J. (2003). Guide to the Communal Land Reform Act, Act No 5 of 2002. Legal Assistance Centre and the Namibia National
Farmers Union, Windhoek, Namibia.
Namibia Estate Agents Board. (2001). Real Estate Study Guide.
Pendleton, W. (1994). Katutura: A Place Where We Stay, in D, Hubbard. (ed). Proposals for Law Reform on the Recognition of
Customary Marriages, Legal Assistance Centre, Windhoek.
Republic of Namibia. (2004). The National Housing Policy of Namibia. 5th Draft Ministry of Local and Regional Government
and Housing, Windhoek.
Republic of Namibia. (2003). 2001 Population and Housing Census. National Report, Basic Analysis with Highlights.
Republic of Namibia, (2003). Epidemiological Report: HIV/AIDS & STI for the year 2001. Ministry of Health and Social Services.
National AIDS Coordination Programme.
Republic of Namibia. (2002). National Water Policy (White Paper). Ministry of Agriculture, Water and Rural Development,
Windhoek.
Republic of Namibia. (2002). National Poverty Reduction Action Plan. National Planning Commission, Windhoek.
Republic of Namibia. (2002). The Draft National Land Use Policy in Annexure A: Applicable Legislation, Policies and Regulations on
Land Use Planning. Ministry of Lands, Resettlement and Rehabilitation, Windhoek.
Republic of Namibia. (2001). National Resettlement Policy. Ministry of Lands, Resettlement and Rehabilitation, Windhoek.
Republic of Namibia. (1998). Programme Review and Strategy Development Report. United Nations Population Fund.
Republic of Namibia. (1998). National Land Policy. Ministry of Lands, Resettlement and Rehabilitation, Windhoek.
Republic of Namibia. (1997). National Gender Policy. Office of the President, Department of Womens Affairs, Windhoek.
Republic of Namibia. (1995). The First National Development Plan. National Planning Commission, Windhoek, vol. 1.
University of Namibia, (undated). Gender Issues and Democracy in Southern Africa. Research and Teaching on Human Rights.
Human Rights and Documentation Centre. INTERNET. http://www.hrdc.unam.na/home.htm, accessed on July 7 2004.
Scott, S. Brink, P. D. & Knobel. I. M. (2003). Law of Property. University of South Africa, Pretoria.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Tvedten, I. & Mupotola, M. (1995). Urbanisation and Urban Policies in Namibia. NEPRU Working Paper no. 47 Windhoek,
Namibia.
United Nations Development Programme. (1999).Namibia Human Development Report 1999, Alcohol and Development
in Namibia.
United Nations Development Programme. (2000). Namibian Human Development Report 2000/2001: Gender and Violence in
Namibia.
United Nations Institute for Namibia. (1988). Namibia: Perspectives for National Reconstruction and Development.
University of Melbourne. (2003). Namibia Cadastral Template Report. A Worldwide Comparison of Cadastral Systems, Cadastral
country reports based on a jointly developed PCGIAP/FIG template, Department of Geomatics of the University of
Melbourne.
University of Namibia. (undated). Administration of Estates, Practical Legal Training, Justice Training Center, Windhoek.
Windhoek City Council. (2001). Conclusions and implications of various statistical reports for urbanisation management in
Windhoek, unpublished.
World Bank. (2004). African Development Indicators.
World Bank. (2003). Comparative of Land Administrative Systems: Critical Issues and Future Challenges, Preliminary Report, p. 49.
World Bank. (2002). Upgrading Low Income Urban Settlements: Namibia Country Assessment Report. p. 22
World Fact Book. (2004). http://www.cia.gov/cia/publications/factbook/geos/wa.html.
Newspaper articles
Angula Admits AA Loan Scheme Defective. (2004). The Namibian.
Barnard, M. (2004). DRC layout plan nixed. The Namibian. August 3.
Amoo, S.K. (2004). Property Rights of Women in Namibia: Myth or Reality.
Amoo, S.K. (2004). Bringing Equality Home: Promoting and Protecting the Inheritance Rights of Women, Unpublished.
Benschop, M. (2003). Security of Tenure: Best Practices. Paper presented at FAO/Oxfam GB Workshop on Womens Land Rights
in Southern and Eastern Africa, Pretoria.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Berrisford, S. et al (2003). International Shifts in Shelter and Settlement Policy and their Implications for South African Praxis. Consulting
report for South African government and USAID.
Caldwell, J. & Caldwell, P. (undated). Fertility Transition in Sub-Saharan Africa. INTERNET. www.hsrcpublishers.co.za
Center On Housing Rights and Evictions (COHRE). (2004). Bringing Equality Home: Promoting and Protecting the Inheritance Rights
of Women.
Conteh, M. Le Beau, D. & Iipinge, E. (2004). Women Face Discrimination From Cradle to Coffin: Womens Rights to Property in Namibia.
Abstract presented at womens land rights workshop in Lusaka, 2004 citation not yet available.
Cousins, B. (2004). The Communal Land Rights Act: Likely to Face Constitutional Challenge. Umhlaba Wethu, No. 1.
Cousins, B. (2004). The Continuing Controversy Over the Communal Land Rights Bill of 2002. ESR Review, Vol. 5 No. 4.
Cousins, B. & Claassens, A. (2004). Communal Land Rights, Democracy and Traditional Leaders in Post-apartheid South
Africa. in Saruchera, M. (ed) Securing Land and Resources Rights in Africa: Pan African Perspectives.
Huchzermeyer, M. (2004). Unlawful Occupation: Informal Settlements and Urban Policy in South Africa and Brazil.
Keller, B. (2000). International Federation of Surveyors Commission 7 Taskforce on Womens Access to Land.
Keller, B. Phiri, E. & Milimo, M. (1990). Women and Agricultural Development. in Wood, A. P. et al (eds). The Dynamics of Agricultural
Policy and Reform in Zambia.
McAuslan, P. (2000). Only the name of the country changes: the diaspora of European land law in Commonwealth Africa.
In Toumin, C & Quan, J. (eds). Evolving land rights, policy and tenure in Africa.
McAuslan, P. (2004). Tensions of Modernity. Paper presented at the University of Reading Centre for Property Law IVth Biennial
Conference.
Mndzebele, A. (2001). A Presentation on Land Issues and Land Reform in Swaziland. Paper presented at the SARPN conference on
Land Reform and Poverty Alleviation in Southern Africa.
Mvududu, S. & McFadden, P. (Eds.). (2001) Reconceptualising the Family in a Changing Southern African Environment.
Quadros, M da C de. (2002). Country Case Study: Mozambique. Paper presented at the Workshop on Integrating Land Issues into
Poverty Reduction Strategies and the Broader Development Agenda, Kampala.
Royston, L. (2002). Security of Urban Tenure in South Africa: Overview of Policy and Practice in Durand-Lasserve, A. &
Royston, L.(eds). Holding Their Ground: Secure Land Tenure for the Urban Poor in Developing Countries.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Selebalo, Q. C. (2001). Land Reform and Poverty Alleviation: Lesothos experiences during the last two decades. Paper presented at the
SARPN Conference on Land Reform and Poverty Alleviation in Southern Africa, June 4-5 2001.
Sibanda, S. (2001). Land Reform and Poverty Alleviation in South Africa. Paper presented at the SARPN Conference on Land
Reform and Poverty Alleviation in Southern Africa, Pretoria, June 4-5 2001.
Strickland, R. (2004). To have and to hold: womens property and inheritance rights in the context of HIV-AIDS in Sub-Saharan Africa.
ICRW Working Paper.
Tanner, C. (2002). Law-making in an African Context: the 1997 Mozambican Land Law. FAO Legal Papers Online #26.
UNAIDS. (2002). Report on the Global HIV-AIDS Epidemic
United Nations. (2004). Report of the United Nations Secretary Generals Taskforce on Women and Girls in Southern Africa.
Van der Merwe, C. G. (1987). The Law of Things.
Walker, C. (2002). Land Reform in Southern and Eastern Africa: Key Issues for Strengthening Womens Access to and Rights in Land. Report
on a desktop study commissioned by the FAO.
Women and Law in Southern Africa Research and Educational Trust. (2001). Critical Analysis of Womens Access to Land in the
WLSA Countries.
Women and Law in Southern Africa Research and Educational Trust-Zimbabwe, (WLSA). (2001). Venia Magayas Sacrifice: A
Case of Custom Gone Awry.
Women and Law in Southern Africa Research and Educational Trust-Mozambique, (WLSA). (1997). Families in a Changing
Environment in Mozambique.
Women and Law in Southern Africa Research- Zimbabwe, (WLSA). (1997). Paradigms of Exclusion: Womens Access to Resources
in Zimbabwe.
World Bank. (2004). African Development Indicators, World Bank, Washington.
World Bank. (2004). Little Green Data Book, World Bank, Washington
World Bank. (2002). Upgrading of Low Income Settlements Country Assessment Report: Namibia. Reporting on informal settlement
upgrading in Windhoek on the basis of City Council Guidelines.
Zambia Land Alliance. (2002). Initial Position Paper on the Draft Land Policy. Paper presented to the Zambian Government Land
Policy Technical Committee Lusaka Province Workshop.
0
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Zambia Association for Research and Development and SARDC - WIDSAA. (1998). Beyond Inequalities: Women in Zambia.
Zambia Daily Mail. (2004). July 5.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
aPPENDix
appendix i : international human rights law and Southern africa
Equal land, housing and property rights are recognised in various international human rights instruments, including: The
Universal Declaration on Human Rights (UDHR) 233:
" Article 17 recognises every persons right to own property and prohibits arbitrary deprivation of it;
" Article 25 confirms the right to an adequate standard of living, including housing;
" Article 2 entitles everyone to the rights and freedoms laid down in this Declaration, without discrimination; and
" Article 16 entitles men and women to equal rights as to, during and upon dissolution of marriage.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) 234:
" Article 11(1) recognises the right to adequate housing 235;
" Article 2(2) prohibits discrimination; and
" Article 3 recognises equal rights between men and women.
The International Covenant on Civil and Political Rights (ICCPR) 236:
" Article 3 recognises equal rights between men and women;
" Article 17 lays down the right to protection from arbitrary or unlawful interference in a persons home;
" Article 23(4) requires appropriate steps to ensure equal rights as to, during and upon dissolution of marriage (including
marital property rights); and
" Article 26 confirms that everyone is entitled to the equal protection of the law, without discrimination on any ground,
including sex, race and ethnicity.
The International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) 237:
" Article 5 (d) paragraph (v) recognises the right to property, while paragraph (vi) confirms the right to inherit; and
" Article 5(e) paragraph (iii) recognises the right to housing. These housing and property rights include the right to re-
turn. 238
233
Universal
Declaration
of
Human
Rights,
adopted
on
10/12/1948
by
General
Assembly
Resolution
217
A
(III),
UN
GAOR,
3rd
Session.
234
International Covenant on Economic, Social and Cultural Rights,
adopted
on
16/12/1966.
General
Assembly
Resolution
2200
(XXI),
21st
Session,
Supp.
No.
16,
U.N.
Doc.
A/6316 (1966), 993, U.N.T.S. 3, entered into force on 3/1/1976. As of June 2005, 151 states had become party, while 66 states had signed but not (yet) ratified.
235
The
right
to
adequate
housing
consists
of
the
following
elements:
(1)
legal
security
of
tenure
irrespective
of
the
type
of
tenure;
(2)
availability
of
services,
materials,
facilities
and
infrastructure;
(3)
affordability;
(4)
habitability;
(5)
accessibility
(including
access
to
land);
(6)
location;
and
(7)
cultural
adequacy.
See
UN
Committee
on
Economic,
Social
and
Cultural
Rights,
General
Comment
No.
4
on
the
Right
to
Adequate
Housing.
See
UN
Doc.
EC/12/1991/41
(1991).
For
full
text
see:
http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/
469f4d91a9378221c12563ed0053547e?Opendocument
236
International
Covenant
on
Civil
and
Political
Rights,
adopted
on
16/12/1966
by
General
Assembly
Resolution
2200
(XXI),
Supp.
No.
16,
U.N.
Doc.
A/6316
(1966),
999
U.N.T.S.
171. The ICCPR entered into force on 23/3/1976. As of June 2005, 154 states had ratified the ICCPR, while 67 had signed it.
237
International
Convention
on
the
Elimination
of
All
Forms
of
Racial
Discrimination,
adopted
on
December
21
1965
by
General
Assembly
resolution
2106
(XX),
entry
into
force
on
January 4 1969. As of June 2005, 170 states were parties to this Convention, while 84 had signed but not (yet) ratified.
238
See
UN
Committee
on
Elimination
of
Racial
Discrimination,
General
Recommendation
nr.
XXII
on
Article
5:
Refugees
and
Displaced
Persons,
1996.
Available
on:
http://www.
unhchr.ch/tbs/doc.nsf/(Symbol)/fed5109c180658d58025651e004e3744?Opendocument
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 239:
" Article 13 requires the elimination of discrimination against women in areas of economic and social life to ensure
womens equal right to bank loans, mortgages and other forms of financial credit;
" Article 14(2)(h) confirms womens right to enjoy adequate living conditions, particularly in relation to housing, sanita-
tion, electricity and water supply, transport and communications; and
" Article 15 accords women equality with men before the law, and recognises their equal right to conclude contracts and
administer property.
The Convention on the Rights of the Child (CRC) 240:
" Article 27 recognises the right of every child to a standard of living adequate for the childs physical, mental, spiritual,
moral and social development.
The Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries 241:
" Article 7 recognises the right of indigenous and tribal peoples to their own decisions regarding the land they occupy or
otherwise use;
" Article 8(2) confirms the right to retain own customs and institutions, where these are not incompatible with interna-
tional human rights;
" Article 14 requires the recognition and protection of the right to ownership and possession over the lands which indig-
enous and tribal peoples traditionally occupy, and the right of use for subsistence and traditional activities; and
" Article 16 stipulates that relocation from land has to be done with free and informed consent, the right to return or
equal land and compensation.
" The African Charter on Human and Peoples Rights (ACHPR) 242: Article 18(2) and (3) require states that are party to
the charter to ensure that every discrimination against women is eliminated, and that the rights of women and chil-
dren are protected.
The African Union Protocol on the Rights of Women in Africa (Womens Protocol) 243:
This protocol, linked to the African Charter, is a treaty in its own right:
" Article 7(d) recognises womens equal rights to an equitable share of joint property deriving from separation, divorce or
annulment of the marriage;
" Article 8 commits the states that are party to the protocol to take all appropriate measure to ensure (a) effective access
by women to judicial and legal services, including legal aid; (b) support initiatives towards providing women with access
to legal aid; (c) sensitisation to the rights of women; (d) equipping law enforcement organs to effectively interpret and
239
Convention
on
the
Elimination
of
All
Forms
of
Discrimination
Against
Women,
adopted
on
18/12/1979,
General
Assembly
Resolution
34/180,
U.N.
G.A.O.R.,
34th
Session,
Supp.
No.
46,
U.N.
Doc.
A/34/36
(1980),
entered
into
force
3/9/1981.
As
of
March
2005,
180
states
had
become
party.
240
Convention
on
the
Rights
of
the
Child,
adopted
on
20/11/1989
by
General
Assembly
Resolution
44/25,
U.N.
Doc.
A/44/25,
entered
into
force
on
2/9/1990.
All
states
except
U.S.A.
and
Somalia
have
become
parties.
241
Convention
(No.
169)
concerning
Indigenous
and
Tribal
Peoples
in
Independent
Countries,
Adopted
on
27
June
1989
by
the
General
Conference
of
the
International
Labour
Organisation
at
its
seventy-sixth
session.
Entered
into
force
on
5
September
1991.
Convention
169
was ratified by 17 countries. See http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169
242
The
African
Charter
on
Human
and
Peoples
Rights
adopted
on
17/6/1981
by
the
Eighteenth
Assembly
of
the
Heads
of
State
and
Government
of
the
Organisation
of
African
Unity, entry into force on 21/10/1986, ratified by 35 states.
243 The African Union Protocol on the Rights of Women in Africa was adopted on 11 July 2003 in Maputo, Mozambique. Assembly/AU/Dec. 19 (II).
3
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
enforce gender equality rights; (e) equal representation of women in judiciary and law enforcement organs; (f) reform
of existing discriminatory laws and practice;
" Article 9(2) binds state parties to ensure increased and effective representation and participation of women at all levels
of decision-making;
" Article 16 recognises womens right to equal access to housing and to acceptable living conditions in a healthy environ-
ment, irrespective of marital status;
" Article 19(c) commits state parties to promote womens access to, and control over, productive resources, such as land,
and guarantee their right to property;
" Article 21(2) recognises the equal rights of sons and daughters to inherit property; and
" Articles 22-24 commits state parties to undertake special measures for elderly women, women with disabilities and
women in distress.
The table below provides an overview of which countries in southern Africa are party to these different human rights instru-
ments. 244
Treaty Angola Botswana Lesotho Malawi Mozambique
ICESCR YES
a: 1992
NO YES
a: 1992
YES
a: 1993
NO
ICCPR YES
a: 1992
YES
s: 2000
r: 2000
YES
a: 1992
YES
a: 1993
YES
a: 1993
Optional Protocol to ICCPR of 19666 YES
a: 1992
NO YES
a: 2000
YES
a: 1996
NO
ICERD NO YES
a: 1974
YES
a: 1971
YES
a: 1996
YES
a: 1983
CEDAW YES
a: 1986
YES
A: 1996
YES
s: 1980
r: 1995
YES
a: 1987
YES
a: 1997
Optional Protocol to CEDAW of 19997 NO NO YES
s: 2000
r: 2004
NO
s: 2000, but not yet
ratified
NO
CRC YES
s: 1990
r: 1990
YES
A: 1995
YES
s: 1990
r: 1992
YES
a: 1991
YES
a: 1991
Convention 169 on Indigenous and Tribal
Peoples
NO NO NO NO NO
ACHPR YES
r: 1990
YES
R: 1986
YES
s: 1984
r: 1992
YES
r: 1989
YES
r: 1989
Womens protocol to ACHPR of 2003 (not
yet entered into force)
NO NO YES NO NO
244
After country representatives have signed an international or regional agreement, their head of state has to approve it. Upon such approval the signed agreement is ratified.
Whether ratification is necessary or not is stated in the agreement. If a state has not signed and ratified such agreement, it can still accede to the treaty at a later date. By ratifying or
acceding
to
an
international
or
regional
agreement,
the
state
becomes
party
to
it
is
bound
to
the
obligations
laid
down
in
that
agreement.
If
the
state
only
signs
but
does
not
ratify,
it
is
nevertheless bound to do nothing in contravention of what is stated in that agreement. In this Table, the letter S stands for signed, the letter R represents ratified and the letter A
indicates
acceded.
NAMIBIA
Land Tenure, Housing Rights and Gender Review: Southern Afr ica
Treaty Namibia South Africa Swaziland Zambia Zimbabwe
ICESCR YESa: 1994
NO
s: 1994
YES
a: 2004
YES
a: 1984
YES
a: 1991
ICCPR YESa: 1994
YES
s: 1994
r: 1998
YES
a: 2004
YES
a: 1984
YES
a: 1991
Optional Protocol to ICCPR of 1966 YESa: 1994
YES
a: 2002 NO
YES
a: 1984 NO
ICERD YESa: 1982
YES
s: 1994
r: 1998
YES
a: 1969
YES
s: 1968
r: 1972
YES
a: 1991
CEDAW YESa: 1992
YES
s: 1993
r: 1995
YES
a: 2004
YES
s: 1980
r: 1985
YES
a: 1991
Optional Protocol to CEDAW of 1999
YES
s: 2000
r: 2000
NO NO NO NO
CRC
YES
s: 1990
r: 1990
YES
s: 1993
r: 1995
YES
s: 1990
r: 1995
YES
s: 1990
r: 1991
YES
s: 1990
r: 1990
Convention 169 on Indigenous and
Tribal Peoples NO NO NO NO NO
ACHPR YESr: 1992
YES
s: 1996
r: 1996
YES
r: 1995
YES
s: 1983
r: 1984
YES
s: 1986
r: 1986
Womens Protocol to ACHPR of 2003 YES YES NO NO YES
* S = signed; R = ratified; A= acceded.
S
IT
U
A
T
IO
N
A
N
A
LY
S
IS
O
F IN
FO
R
M
A
L S
E
T
T
LE
M
E
N
T
S
IN
K
IS
U
M
U
UNITED NATIONS HUMAN SETTLEMENTS PROGRAMME
P.O. Box 30030, GPO Nairobi 00100, KENYA
Telephone: 254-20-7623120; Fax: 254-20-7624266/7 (Central Office)
E-mail: infohabitat@unhabitat.org; Website:http//www.unhabitat.org
HS/788/05E
ISBN: 92-1-131768-1
LAND TENURE, HOUSING RIGHTS AND GENDER
L
a
w
, L
a
n
d
T
e
n
u
re
a
n
d
G
e
n
d
e
r R
e
v
ie
w
: S
o
u
th
e
rn
A
fric
a
N A M I B I A
L a w, L a n d Te n u r e a n d G e n d e r Re v i e w : S o u t h e r n A f r i c a
N
A
M
I B
I A