At independence, the government faced a challenge to resettle thousands of landless Namibians due to German colonial land dispossession and apartheid colonialism. The objective of national liberation was to get the land back from colonial settlers. Therefore, government hosted the First National Land Conference in 1991. The conference adopted the policy of willing seller, willing buyer to guide the land reform process. This policy is grounded on Article 16 of the constitution which guarantees the acquisition of private property.
During the Second National Land Conference held in 2018, the Ministry of Land Reform indicated that since 1992, government acquired only 3.3 million hectares out of the total 5 million hectares planned for the resettlement programme, leaving a deficit of 1.7 million hectares. The purchase of land is cumbersome and land prices are exorbitant. Government is unable to buy land due to budgetary constraints. As a result, the conference recommended for the abolition of the willing seller, willing buyer policy. The policy is not yet abolished, because doing so would be encroaching on the fundamental rights and freedoms entrenched in Article 16 of the constitution.
Constitutionality of willing seller, willing buyer
Article 16 of the constitution stipulates 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 state or competent body or organ authorised by law may expropriate property in the public interest subject to the payment of just compensation in accordance with the requirements and procedures to be determined by the Act of Parliament.
In terms of Article 16 (1), a willing seller may offer his/her land to the willing buyer, but in terms of Section 17 of the Agricultural (Commercial) Land Act, 1995 (Act No. 6 of 1995), land must first be offered to the state. The state would exercise a preferential right to buy or refuse to buy the land on offer before the land is sold in the market. Worth noting here is that the landowner is not forced to sell land but does so voluntarily. The problem with this arrangement is that government can only buy the land that is on offer and only if it has money. If government does not have the money, the seller may sell his/her land in the market at whatever price. This situation has caused the price of agricultural (commercial) land to skyrocket. Land has now become unaffordable to the majority of Namibians. Some Namibians are now criticizing the policy of willing seller, willing buyer as an obstacle to land reform in Namibia.
Article 16 (2) provides that the state or competent body or organ authorised by law may expropriate property in the public interest subject to the payment of just compensation, in accordance with the requirements and procedures to be determined by the Act of Parliament. This Article imposes a limitation on the policy of willing seller, willing buyer and, as a result, the willing seller, willing buyer policy is not absolute. Therefore, this Article provides for expropriation, provided that there is an Act of Parliament. Such law shall define what just compensation and public interest are, while also preventing potential abuse of power and offering remedies for infringements. The Namibian Parliament has not yet enacted legislation on expropriation.
The case of Gunter Kessl against the Minister of Land Reform
In this particular court case, the Minister of Lands wanted to expropriate farms such as Gross Ozombutu, Okozongutu West, Welgelegen and Haimaterde as well as farms Okorusu and Margurg in the Otjozondjupa region owned by foreign nationals. The minister rejected the price offered and instead decided to expropriate the farms in the public interest. The farm owners approached the High Court of Namibia for a relief. The case was finalised in 2008 and the court ruled in favour of the foreign owners, the reason being that government has not followed the due process of law. The court ruled that Namibia is premised on the rule of law, therefore all decisions must be based on what the constitution requires. The Land Reform Advisory Council was found not to have complied with the Agricultural (Commercial) Land Reform Act, 1995 (Act No. 6 of 1995).
The willing seller, willing buyer policy has been mostly used to purchase land in Namibia. However, this policy is not the only legal one. This policy is also not absolute. It is subject to constitutional limitations. Article 16 (2) gives the state broad powers to expropriate private property. Expropriation is not in use currently, because no law exists on expropriation of private property. It is extremely urgent that a law on expropriation is enacted to fast-track land reform in Namibia.
* Mateus Ndalipo Kaholongo is a lawyer, political scientist and policy analyst. He writes in his private capacity.