• May 24th, 2019
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Fundamental challenges to some land conference resolutions



Pendapala Hangala

Namibia held its historic 2nd national land conference from the 1st to the 5th of October 2018 at a local hotel in Windhoek. This national land conference was initially supposed to be held in 2017 but due to certain reasons was eventually postponed to 2018 and as they say, the rest is history.  

The main aim of the conference was to critically review the performance outcomes from the 1st national land conference as was held in 1991 and to thereafter come up with realistic resolutions which going forward will ensure that land in Namibia is fairly and equitably distributed. 

I should however at this stage state that the 2018 national land conference failed to provide clear implementation timelines which whether by omission or design unfortunately puts the nation in a position of extreme uncertainty, eroding the expectations of affected stakeholders.   

However, taking into consideration the resolutions that were agreed upon at the 2nd national land conference, I would like to review at least three fundamental resolutions which in my view are critical to the success or failure of what is intended to be achieved, as follows:   

1) The resolution to abolish the willing seller, willing buyer principle in a democratic and mixed economic set-up such as in Namibia where the rule of law is highly respected is a definite non-starter. In that regard, there is absolutely no other private property exchange method that can replace the current system unless a new constitution is instituted and that will never ever happen.  

The right to sell or not to sell a private commercial farm or a property and the timing thereof will always remain the prerogative of the owner and no law on earth in the Namibian context will ever dictate otherwise. 
With that said, how the Namibian government could just within a week easily accept to adopt and implement such an important un-implementable resolution without any due diligence is beyond words to say the least. 

2) Expropriation of foreign and underutilised Namibian owned commercial agricultural farms. The expropriation of foreign-owned commercial farms sounds very easy but will without a doubt face constitutional legal challenges especially due to the provision of article 16 which requires the absolute respect for private properties. A foreign farm owner in the modern context is very vague, complex and varies in scope and magnitude as their intentions or purpose of acquiring such commercial agricultural properties are never the same, as some farms could be their holiday destinations, a game farm or a collateral to some form of a bank loan or part of some business transaction. 

An additional challenge with this specific resolution is that any hypothetical Supreme Court case loss against the Namibian government could put all the other similar cases in jeopardy, watering down the whole resolution. 
The expropriation of underutilised commercial farmland of a Namibian is also a non-starter. How will the Namibian government encroach on a private farm of a Namibian to measure and determine what portion of that farm land is underutilised? This will certainly be taken as trespassing of which prosecution can be instituted. 

This specific aspect of the resolution to expropriate underutilised Namibian commercial agricultural land is close to impossible to implement as a private property remains a private property until legally sold through the willing seller, willing buyer principle to the state to become a public property.   

3) The resolution of the one Namibian, one farm is in my view not well thought through and needs further investigation before it becomes a law. For instance, will this resolution only apply to future farm owners or will it also apply to those that already have more than one farm? And what if they are not willing to sell their second farm as per their constitutional right. 
In the above regard, the posture of the Namibian government to go into such an important national land conference ill-prepared is extremely dangerous for the future generations who will have to bear the brunt of any negative repercussion that these resolutions could unleash. For instance, what if the 2nd national land conference had resolved that all land should belong to the state, would the Namibian government have accepted such a resolution just because of the democracy right of most of the participants.  

It is hence clear from the above brief review that certain resolutions such as the willing seller, willing buyer principle and the expropriation of foreign-owned commercial agricultural land are contradictory in nature and will both encounter constitutional challenges. 

In conclusion, the only solution is a government-driven radical socio-economic development transformation agenda whereby it takes full control of its natural resources, skill Namibians accordingly and significantly empower local entrepreneurs to ensure domestic money supply flows. 
With such a sustained environment, most citizens will able to decide their fate accordingly.  

* Pendapala Hangala is a Namibian socio-economist who strongly believes in the nation’s Vision 2030 development agenda.  


New Era Reporter
2018-10-12 09:20:10 7 months ago

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