Definitionally, land reform entails and/or encompasses a purposeful drive championed by the State, through its machinery, in addressing historical injustices with restorative measures.
This would, therefore, mean the land reform programme must have ingredients of restitution and statutory restoration of rights unto land. Central to this will be premised on the natural recognition of historical dispossession.
Herein, dispossession of land and other properties pre- and post-independence.
Legally, land reform programmes must have constitutional stamina. In other words, they must be constitutional, binding and enforceable. Simply put, a land reform programme must be able to overtly and justly redress past injustices without impunity, but
with heavily reliance on equitability. In this case, land reform programmes must be equitable to the gravity of the injustice endured.
It is, therefore, a programme meant to redress and restore either fully and/or partially the rights in land of the victims, and it must be a prosecutorial offence to purposefully deviate from its primary objectives.
It is a crime to perpetuate
injustice against targeted beneficiaries of any reform programme – as this amounts to gross violations of the rights of victims to remedy under all legal regimes. It can amount to public mischief.
It will be appropriate to contextualise the Namibian land reform programme against its requirements, and I will attempt to purposefully and provocatively dissect such for ease of understanding by the general populace.
In any democracy, truth and reconciliation are central to good governance as they give rise to responsive functional institutions in all domains. Unfortunately, upon independence in 1990, Namibia, as a country, dismally failed to establish a Truth and Reconciliation Commission, which is the basic recipe for any successful land reform programme.
The purpose and overarching goal of a national Truth and Reconciliation Commission is to give rise to the notion of building One Nation and One Country – where truth leads to reconciliation between perpetrators and victims of historical injustice and colonial crimes.
It also facilitates and reduces tension between beneficiaries and victims of historical injustice and colonial crimes. Consequently, the main objective of the land reform programme cannot be achieved in the absence of a springboard, in this case, a truth and reconciliation commission.
Having that said, though, the Namibian land reform programme can be classified as legal; it may not pass the enforceability test because it does not recognise the historical injustice committed against specific groups, as enshrined both in local and international laws (genocide legal instruments and its definition). In this case, that of OvaHerero and Namas, who suffered the first 21st century genocide of 1904-1908.
In the case of genocide, it is evident that OvaHerero and Nama properties were genocidally dispossessed, and overwhelmingly, it is prima facie evidence to such an effect. The unfortunate situation continued after 1908 up to 1978, where the very same ethnic groups continuously suffered properties and land dispossessions at the hands of the brutal apartheid South African regime.
Technically, it is administratively wrong for the Namibian government to purposefully exclude such groups as prime beneficiaries of the Namibian land reform programme – merely for political reasons.
Further, with the application of Article 144, intentionally read with Article 18, it is evident that the Namibian government is continuously victimising the descendants of victims of 1904-1908 OvaHerero and Nama Genocide through its championed Land Reform Programme, and it is in direct violation of International Human Rights Laws, International Humanitarian Laws, Treaties and Conventions.
Our international legal obligation as a State is questionable in terms of how we have assured our obligatory responsibilities in terms of “the obligation to respect, ensure respect for and implement international human rights law
and international humanitarian
law as provided for under
respective bodies of law.”
In the case of Namibia, there is nothing to stop the State from explicitly restoring the rights to land of the OvaHerero and Nama as a measure for their losses during the 1904-1908 OvaHerero and Nama genocide. There is, therefore, nothing unconstitutional for the claims of ancestral land rights and their subsequent restitution by these very groups.
However, the outcome of the implementation of the Land Reform Programme, either through Resettlement, Programme for Communal Land Development, Customary Land Rights Registration, or affirmative action loan scheme programmes, does not show any positive results and purposeful intent of government in addressing historical injustice suffered by the descendants of victims of the 1904-1908 OvaHerero and Nama genocide at the hands of German government.
In other words, the Namibian government has failed to adopt appropriate and effect legislative and administrative procedures and other appropriate measures in facilitating fair, effective and prompt access to justice by the descendants of victims of 1904-1908 genocide since independence in 1990 through a land reform programme.
Assertively, both of the land reform laws, namely the Communal Land Reform Act of 2002 (Act. 5 of 2002) and the Agricultural Commercial Land Reform Act 1995 (Act 6 of 1995), as subsequently amended, make no explicit mention or recognition of the 1904-1908 OvaHerero and Nama genocide.
By extension, purposeful exclusion of the descendants of victims of genocide as targeted beneficiaries through land policies is overwhelmingly evident, and is a violation of the State’s legal obligation in causing to prevent further violations of rights of victims of international human rights law, or serious violations of international humanitarian law, herein those of OvaHerero and Nama communities and others.
Frankly, there is nothing cynical about the demands for restitution
of specific groups land rights,
herein ancestral land in Namibia. There is also nothing unconstitutional for Namibia’s Land Reform Programme in explicitly prioritising the descendants of
the victims of 1904-1908
OvaHerero and Nama genocide.
Legally, under all available instruments, the purposeful exclusion of the descendants of victims of 1904-1908 genocide
from the land reform programme
is a perpetual injustice of the
highest order.
The programme further fails to explicitly recognise the dispossessions of land suffered by the Damaras and the San. It is evident that the period between 1915 and 1978 has seen a loss of large tracks of land intensely impacting the generational livelihood of the Damaras and the San communities. Their exclusion is still a sign of an injustice in the land reform programme.
Lastly, the programme is not pro-poor; neither does it encapsulate the marginalised, the vulnerable, nor the economically-active segment of society, the youth.
It is, therefore, a concern all Namibians must consider that the land reform programme, despite having an oxymoronic effect, is in violation of both domestic and international laws, with its supportive policies being unduly restrictive.
That is why it can be rightly confirmed that the land reform programme has economically and developmentally failed Namibia, for it has failed to alleviate poverty and address past injustice. It has only impoverished Namibians, including most of its unintended beneficiaries. It can be asserted that the Namibian land reform programme has immensely contributed towards its citizens’ impoverishments,
while being systematically
abused by foreign government
and tribalistic political elites.
Therefore, until the Government adopts appropriate and effective legislative and administrative procedures and appropriate measures that provide fair, effective and prompt access to justice by victims’ historical land dispossession (genocide and colonialism), a moratorium on land reform programme must be effected as a matter of urgency through a parliamentary motion.
*Tjeja-uaTjatindi Jarii is a human rights activist, responsible for ancestral land and property rights under the Ancestral Land Foundation of Namibia (ALFON). Views and opinions expressed are solely his.