A parliamentary committee has cautioned against a hasty and careless passing of legislation seeking to regulate, if not entirely ban, the ownership of land by foreign nationals.
The Parliamentary Standing Committee on Natural Resources said the proposed law in its current form is in direct conflict with the supreme law of the land.
The proposed draft bill, which was submitted in the form of a petition by the Affirmative Repositioning (AR) movement in March 2019, was subsequently referred to the Parliamentary Standing Committee on Natural Resources on 12 April 2021.
Its chief objective is to provide for the regulation of foreign ownership of land.
In the legislative proposal, AR is asking Parliament to pass the draft bill to regulate the foreign ownership of land in fulfilment of the directives and objectives of Article 16 (1) of the Namibian Constitution, 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: provided that Parliament may by legislation prohibit or regulate as it deems expedient the right to acquire property by persons who are not Namibian citizens.”
The AR, in its submission, went to great lengths to strongly oppose land ownership by foreigners and urged the government to come up with a regulatory framework or law, and not necessarily the bill they have submitted, but as long as the principle set therein remains and that the leasing of land is reduced to 10 years from the current 99 years.
Investigations
Upon referral of the proposed bill, the committee embarked on wide consultations and launched investigations to determine the viability of passing such a law and how it would fare against the Constitution.
The committee also concluded that AR’s proposed 10-year lease period is too short and unattractive to investors, as it does not speak to long-term investment opportunities.
“Ninety-nine (99) years is the benchmark worldwide practice, as project financing will be difficult for investors to obtain, as 10 years is not commercially viable,” the MPs said.
The committee also determined that the proposed bill will have an impact on the right to equality under Article 10(1), in that it seeks to treat non-Namibian citizens differently from Namibian citizens, and it equally goes against the spirit of Article 16 in that it seeks to limit the rights of an existing owner on how or to whom to dispose of the property, as well as limiting the rights of non-Namibian citizens to acquire property.
Existing laws
During consultations, the Law Reform and Development Commission (LRDC) outlined existing legislation and their stand on prohibiting foreign nationals from buying land in Namibia, which are the Agricultural (Commercial) Land Reform Act of 1995, the Communal Land Reform Act of 2002, the Local Authorities Act, the Regional Councils Act of 1992, the Flexible Land Tenure Act, the Expropriation Ordinance of 1978 and the Deeds Registries Act.
None of these pieces of legislation prohibit foreign nationals from acquiring land in Namibia, except for the Communal Land Reform Act of 2002 under Section 17, which prevents any persons, including citizens, from acquiring communal land as it is State property.
Numbers
What further gives AR sleepless nights is the fact that from the 39 million hectares of land referred to as freehold agricultural land lawfully owned through title deeds, white Namibians own about 27% of it, while black Namibians own 16% and the government owns only 5 million hectares, which is 14%.
The AR further pointed out that from the 12 380 farms privately owned, 7 000 are owned by individuals, 2 800 by companies and 1 200 are owned by government, while 150 farms are owned through trusts and 71 farms by churches.
Another 250 farms, measuring about 1.2 million hectares of land, are owned by foreigners, and that is the biggest bone of contention for the AR and is primarily what triggered their legislative proposal to Parliament for urgent intervention, either through law or policy.
To curb the growing ownership of land by foreigners, AR wants the government to “regulate the right to acquire property by persons who are not Namibian citizens and reaffirm and give power, control and ownership of the land in Namibia to the people of Namibia.”