By John Sackaria
LAND can be viewed from different perspectives.
From a political perspective, land is a place where the State has established jurisdiction and exacts power and influence.
From a social perspective, land is where groups and individuals exist, while from a socio-economic perspective, land is viewed as a natural resource that endows the human race with the ability to derive a livelihood and survive.
From a commodity perspective, traders monopolise land for monetary exchange in commercial transactions.
I will deal with the last two perspectives within the context of the legal ownership of land in Namibia, being commercial land or otherwise.
Since time in memorial, land has formed one of the core pillars of human existence, the others being water and oxygen, etc.
It is clear from the Bible that God, the creator of earth and the universe, intended that land be treated as a universal, free and available natural resource, like air and water, and not as a commodity.
However, due to the human instinctive greed of monopolising everything within their reach, land has become transformed into a commodity, to be traded on the stock exchange.
This started happening before the Roman Empire.
Roman Dutch Law, dealing with things and property, defines property as tangible and intangible things, such as land, buildings, copyright owned by an individual, with absolute legal rights protected against the whole world.
As a result, the human race started to discover, conquer and occupy land for themselves, at the exclusion others.
It is a reality that Namibia is no exception, and was not spared from the scramble for African land by European traders, since the Berlin Conference of 1884. As a result, Namibia was colonised twice.
From 1883 to 1915, Namibia was under German colonial rule, and white settlers were encouraged to settle and occupy the land.
By 1903, there were 3 700 Germans living in the area, and by 1910 their number had increased to 13 000, effectively placing Namibian land under colonisation.
From 1915 to 1990, after World War 1, the League of Nations mandated South Africa to administer the territory under the Treaty of Versailles, signed in 1919, and land dispossession continued, until Namibia’s political independence in 1990.
In both periods, the conquerors divided the entire landscape of Namibia among themselves, at the expense of the majority of the population. The majority of the black native population is still confined to pockets of land in communal areas, where they compete for space with wild animals and livestock. The settlers acquired large tracks of land as privately-owned property, in accordance with Roman Dutch Law.
The process of land acquisition by settlers involved conquest, occupation and them settling permanently on the land. This was done by destroying and displacing the natives, who are the original owners of the land.
During colonialism, land was traded and commercialised among and between Europeans and their colonies, in accordance the sections of Roman Dutch Law that deal with property, and which transfers real right of ownership to the purchaser, and protects the right of ownership against the whole world. Since then, land is being treated as a commodity, which is sold to the highest bidder, and as Namibia is a capitalist society, Namibian land has become the most sought-after commodity to be traded on the stock exchange, just like diamonds, uranium, gold, copper, etc.
This system of ownership of land is entrenched in the Namibian Constitution in Chapter 3, Article 16.
This is despite land being the only resource that every human is endowed with at birth.
A lot has been said about the dispossession of the natives of their ancestral land by past European conquest, and in the future, if the repugnant Article 16 is not amended by the current generation.
It goes without saying that Article 16, which states that, “All persons shall have the right in any part of Namibia 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…” is prima facie, a contradiction of Article 100, which states that, “sovereign ownership of natural resources, such as land, water and natural resources below and above the surface of the land, and in the continental shelf and within the territorial waters and the exclusive economic zone of Namibia, shall belong to the State, if they are not otherwise lawfully owned”.
Article 100, of the constitution should be interpreted to mean that ownership of all natural resources, including land are vested in the State, except those lawfully acquired through a legitimate legal system. However, Article 16 can be interpreted to mean that land is a property, which can be privately traded, like a commodity on the stock market.
The question is whether or not land confiscation, in terms of the Imperial Ordinance of 1905 and other colonial laws, is a legitimate acquisition of land, as contemplated by Article 100.
The correct answer is that land dispossession during colonialism is illegal and unlawful.
It can be argued that land acquired under unjust laws, or by the termination/ genocide of the native Namibians must not be regarded as lawfully acquired, and therefore must be regarded as State land.
It is thus confusing or difficult to make an interpretation, in order to infer and conclude which article has the power over the other. Is land a natural resource, as per Article 100 or is land a commodity, as per Article 16?
One gets the gut feeling that Article 16 was an afterthought, which was inserted with a fixed mind, to dispossess the natives of their ancestral land forever or at least until the next revolution.
It is seems as if the founders of our modern constitutional republic have contracted out or at the least compromised the most inalienable rights of the natives, when they signed off on the constitutional agreement of 1990, as far as Article 16 is concerned.
It should be noted the government of the day have tried, so far without success, to circumvent the legal effect of Article 100, and to mitigate the land dispossession of Article 16, by the controversial ‘willing buyer, willing seller’ policy, which is proving to be difficult to implement, as the settlers are offering their farms at exorbitant market-related prices.
It is a fact that a lot of monetary resources have been spent on reacquiring the stolen native land from the settlers, without success. The question is: Why would you buy your own thing that has been stolen from you by the robber and murderer?
It is clear that the sons of Jan van Riebeeck and Lothar von Trotha have succeeded to forever dispossess the natives of their ancestral land, and are clinging to it at the expense of the grandsons and granddaughters of the natives.
It goes without saying that communal land in Namibia is vested in the State, which it holds in trust for communities and is administered in accordance with
the Communal Land Act, 2002. Likewise Article 16 must be amended to comply with Article 100, in order to transfer land ownership to the State, to be held in trust for use by the current generations and future generations, yet to be born.
The State should take steps to determine whether or not land should continue to be considered as a commercial property, as defined by Roman Dutch Law and the provisions of Article 16 of the Namibian Constitution.
It should determine whether or not land should be regarded as a natural resource, which is vested in the State, as envisaged by Article 100, and also to determine whether or not the freehold land titles should be abolished, and replaced with the leasehold systems, which means the private ownership of land should cease to exist, and all land should be vested in the State, to be utilised on the basis of a leasehold system for residential, agricultural and commercial purposes.
It is imperative that if it is not possible to implement the above steps, due the limitations imposed by Chapter 3 of the constitution, more so Article 16 and Article 131, then it should be necessary to hold a referendum, as required by Article 132, or draft and adopt a new constitution, which will facilitate the achievement of what the natural law theorists call the “human good”.
Namibia’s land must be restored to its rightful owners, without any conditions attached whatsoever, and land must be regarded as a natural resource, and not as a commodity subjected to market values.
This will ensure the protection of land tenure for current and future generations of Namibia. The problem at hand is that Namibia’s land tenure and land ownership is not yet addressed in a holistic and pragmatic manner, despite various interventions over the past 27 years, by the Namibian State to achieve equitable and universal land distribution for the benefit of the current and future generations.
*John Sackaria is law graduate with an interest in land ownership and dispossession in Namibia. He enjoys engaging the mind, inspiring ideas and provoking debate
Confidente. Lifting the Lid. Copyright © 2015