During the period preceding the 2nd national land conference held in Windhoek last year, several articles were written in defence of the existence of ancestral land in various parts of Namibia, which was dispossessed from the indigenous people, especially during the German (1884-1915) and South African (1915-1990) colonial periods.
The most notable pieces of draconian laws which disposed the indigenous communities of their land are the German Land Expropriation Orders, 1905; Creation of the German Police Zone; Native Trust and Land Act, 1913 and the Odendaal Plan, 1963.
Most of the said articles were written to confirm and reconfirm land dispossession of the Ovaherero, Nama and Damara communities in central and southern parts of Namibia by the German colonial government preceding and following the 1904-1908 genocide. However, historical facts backed by scientific evidence indicate that many other communities in Namibia lost huge tracks of land dispossessed by the successive colonial governments. This article discusses the loss of ancestral land by the Aawambo communities.
Definition of Ancestral Land
Ancestral land refers to the land belonging to an indigenous cultural people or community. This includes the continuous and open possession and occupation of the said indigenous people or community and its members, whose right to such lands shall be protected to ensure non-encroachment (Osabuohien, 2014).
The United Nations Declaration on the Rights of Indigenous People (UNDRIP) defines ancestral land in reference to a special attachment to and use of traditional land and territory whose inhabitants should have fundamental importance for their collective and physical and cultural survival as people. Namibia signed the UNDRIP on September 2007 and has developed a Draft Paper on the right of indigenous people in Namibia. Whether Namibia has enacted an enabling legislation to give effect to the Declaration is a subject of further research. In the absence of any legislation in this regard, this Declaration is not legally binding in Namibia.
Ancestral Lands of the Aawambo communities
As early as 1850s, the territory occupied by the Aawambo communities extended southwards and included areas such as the entire present day Etosha National Park, Tsumeb, parts of Otavi, Outjo and Grootfontein. On 29 May 1851, explorers Charles John Andersson and Francis Galton who were the first Europeans to enter Owamboland recorded the existence of Etosha Pan which was under the jurisdiction of Aawambo. On their way to Owamboland, they were accompanied by the Aawambo miners who mined copper and iron in Otavi and Tsumeb. They also encountered Aawambo at Oshamatunda or Amutuni Lyomanenge (present day Namutoni) (Barry, 1997). In fact, the Etosha Pan formerly Etotha in Oshindonga was under the control of the Chief of Ondonga (Trumpelmann, 1948). Etosha National Park is an ancestral land.
Between the years 1874 and 1880, there had been conflict between the Boer Republics of Transvaal and Orange Free State and the English in the Cape Colony in South Africa. As a result, a group of Boers known as Dorsland Trekkers migrated from the Transvaal to Angola. There they came in conflict with the Portuguese. Consequently, they decided to come back to settle in Owamboland. In 1885, a trader and hunter, William Worthington Jordan bought large tracks of land from King Kambonde ka Mpimgana of Ondonga measuring about 170 kilometers stretching from Okaukwejo, Otavi up to Oshaanda Shongwe (presently Grootfontein). Jordan bought this land for 300 pounds, 25 firearms, one salted horse and a cask of brandy (Dieckmann, 2007).
Jordan had earlier requested the same piece of land from the Herero Chief Manasse Tjiseseta of Omaruru. However, Chief Tjiseseta did not have jurisdiction over the said territory, hence he recommended Jordan to seek permission from Chief Kambonde ka Mpingana of Ondonga. In fact, Chief Manasse Tjiseseta had already signed a Protection Treaty with Dr Heinrich Goering, the German Governor at Omaruru on 2 November 1885 covering his area of jurisdiction which excluded the area sold to Jordan by Chief Kambonde ka Mpingana (Report on the Natives of South-West Africa, Union of South Africa, 1918).
Jordan subsequently donated this land to the Dorsland Trekkers who established a Republic of Upingtonia in 1885 under the leadership of President George Diederik P. Prinsloo as Head of State and with its capital at Grootfontein. They named the area Upingtonia after the Prime Minister of the Cape Colony (Tonchi, Lindeke and Grotpeter, 2012).
During this time, Ondonga was ruled by two Kings, namely King Kambonde ka Mpingana who ruled the western Ondonga and King Nehale lya Mpingana who ruled eastern Ondonga. King Kambonde ka Mpingana sold the land to Jordan without permission from King Nehale lya Mpingana under whose jurisdiction the said land was. As a result, King Nehale lya Mpingana attacked the capital of this so-called Republic of Upingtonia at Grootfontein in 1887.
In this attack, Jordan was killed and the Republic collapsed. As a result, the Dorsland Trekkers returned to the Transvaal in South Africa. In June 1887, the Republic of Upingtonia was annexed by the Germans and incorporated in the German Police Zone. (Tonchi, Lindeke and Grotpeter, 2012). Therefore, Otavi and Grootfontein are ancestral lands.
After the annexation of Grootfontein, the German colonial government extended their rule further north into the Ondonga territory and built a fort at Namutoni in 1889 under the German military guard. On 28 January 1904, King Nehale lya Mpingana commanded 500 of his soldiers and attacked the German troops at Fort Namutoni and completely destroyed it, driving out the colonial forces and taking over their horses and cattle. Thus, Namutoni and Tsumeb are ancestral lands.
King Nehale lya Mpingana
The Constitutionality of Ancestral land claims
On 21 March 1990, Dr Sam Nujoma, the Founder of the Republic of Namibia proclaimed to the world as follows: “As from today, we are masters of this vast land of our ancestors. The destiny of this country is now fully in our own hands. Taking the destiny of this country in our own hands means, among other things, making the great effort to forge national identity and unity. … Our achievement of Independence imposes upon us a heavy responsibility … to set ourselves higher standards of equality, justice and opportunity for all, without regard to race, creed or colour. … In conclusion, I move, in the name of our people, to declare that Namibia is forever free, sovereign and independent.”
Article 1 of the Constitution of the Republic of Namibia reads as follows:
The Republic of Namibia is hereby established as a sovereign, secular, democratic and unitary state founded upon the principles of democracy, the rule of law and justice for all.
Article 100 reads: Land, water and natural resources below and above the surface of the land and in the continental shelf and within the territorial waters and in the exclusive economic zone of Namibia shall belong to the State if they are not otherwise lawfully owned.
Historical facts have proven that the entire territory of Namibia has been an ancestral land. However, with the coming into being of the Constitution, which is the Supreme Law of the Republic, Namibia is a unitary state. The territory and the total land that constitutes this Republic belong to all Namibians, irrespective of colour, race or ethnic origin. These legal imperatives extinguished all exclusive land claims, including ancestral land claims. As a result, any claim to ancestral land has no legal validity and is unconstitutional.
It therefore follows that any policy that promotes or purports to prejudice any citizen of Namibia in support of any claim to ancestral land is unlawful ab initio. All Namibians should have equal access to land irrespective of colour, race and ethnic origin. However, this does not preclude the State to come up with deliberate policy and legal interventions to promote equitable land distribution to redress the colonial land dispossession. But this should not be premised on claims for restitution of ancestral land.
Conclusion
This article disputes assertions that only certain sections of our population lost ancestral land. The article further indicates that loss of land did not only start immediately and after the 1904-1908 genocide of the Ovaherero, Nama and Damara communities. All Namibian communities started to lose their land immediately when the German and South African colonial governments illegally occupied our country.
The article also discusses the legality of ancestral land claims in Namibia. The conclusion is that there is no law that supports ancestral land claims. In fact, the Constitution of the Republic of Namibia extinguished all ancestral land claims and any policy advantaging some Namibians based on ancestral land claims is unlawful and unconstitutional.
* Mateus Ndalipo Kaholongo
possesses various degrees in diverse fields of Education, Public Administration, History, Political Science and Law. He writes in his private capacity.