The highly controversial, contentious and sensitive issue, which might divide the Namibian people, is the issue of the land taken from those who were forced to withdraw from the lands on which they pastured their animals to let the colonialists take over and pasture their animals on those lands. Between 1893 and 1903 the Germans went on a rampage of expropriating land and animals from specific groups of people. This process became even worse when German colonial forces decided to exterminate the Ovaherero and Nama people during 1904-1908. The South African regime, which took over the country from the Germans, continued with the land expropriation of some of the groups of this country, and victims of this land expropriation are known and they were the people who owned the land in the South and Central parts of the country. The descendants of those people are the ones who are demanding restoration of ancestral land rights today.
The land conference of June 1991, which I attended, decided not to entertain or discuss the issue of ancestral land because it was regarded as emotive and complex. However, the fact that the ancestral land question was not discussed at the land conference of 1991 did not stop most of the affected communities from continuing to raise this sensitive and complicated issue. Therefore whether we try to sweep this issue under the carpet there will always be difficulties in and resistance to silence the affected groups. Therefore the decision not to discuss this emotive issue of ancestral land will not be wise and should not be the option since this issue will never die, no matter whether we discuss it or not. On the contrary those who are fighting for their ancestral lands may feel that they are suppressed and their rights are being trampled upon and this may provoke negative reaction. More so such decision might also have the potential to erode the trust and confidence of the affected groups in the government of the day which they may perceive to be insensitive to their plight.
I totally understand the concerns raised by our President Hage Geingob when he asked a relevant question as to “how far we can go back into history to recognize the ancestral land claims.” However, we may take cue from South Africa and do what that country did in trying to resolve the ancestral land claims after democratization of that country. The new democratic South African government decided that 1913, the year when the colonial apartheid regime adopted the land Act, must be used as guide and basis for determining ancestral land rights. That government then passed a Restitution of Land Rights Act 22 of 1994 under which specific persons who can demonstrate that they lost land during the colonial era have right to lay claim for the return of their land or compensation. About 4,000 ancestral land claims have already been settled successfully under that Act.
In case of Namibia the year 1893 (when the real expropriation of land started) may be used as guide and basis for determining the ancestral land rights. Another interesting alternative option is what was proposed in an article written by Uzochukwu Okafor in the New Era of 11 July 2018. He wrote that: “We get the general feeling when people talk of ancestral land rights, they mostly mean land rights of those who were dispossessed of their land during the colonial era comprising the German occupation and that of the South African apartheid regime. If that is the case, we can change the tune of focus on victims of land dispossession by the colonial regimes, who we will subsequently refer to as Colonial Dispossessed Communities (CDCs). These groups are easy to identify and we can put a date stamp to it. Following this detour from ancestral land rights, all we will be discussing further on will be based on the concept of CDC.”
Therefore it is possible for Namibia to consider one of the two abovementioned options rather than to dismiss the discussion of the whole issue of ancestral lands which were brutally expropriated from specific groups by colonial forces.
It might be necessary to briefly explain the constitutional rights of the citizens of the country on this issue. It can be argued that Article 16 of Chapter 3 of the Constitution of the Republic of Namibia provides that “All persons shall have the right in any part of Namibia to acquire, own or dispose of all forms of immovable and movable property. Only those who are not Namibian citizens may be prohibited to acquire property by act of Parliament.” Article 21 (1) (h) of the Constitution also states that all persons shall have right to “reside and settle in any part of Namibia.” However, such right may also be subjected to reasonable restrictions which are necessary in a democratic society and which are required in the interest of the sovereignty and integrity of Namibia, national security, public order, decency or morality. Although all persons are equal before the law and no person may be discriminated against, (Article 10 of the Constitution) nothing shall in accordance with Article 23 (2) of the Constitution prevent the State from enacting legislation providing for taking remedial measures aimed at advancement of Namibian persons who have been directly affected by past colonial practices. This should also apply to those people who are known to have been disadvantaged because they lost their ancestral land as a result of past colonial brutal expropriation of their land. Because of this, restorative justice must be taken into consideration when land is being distributed particularly on the basis of the government resettlement programme.
The wording restorative justice emanates from the word “restore”, which simply means to bring back a situation which existed. It is therefore clear that only something which existed can be restored and something which did not exist cannot be restored. Therefore, the local communities which lost their land because of colonial expropriation of their land must be given priority to be resettled based on the principles of “positive discrimination” (Affirmative Action) while, of cause other groups will also have to be considered. In this case giving priority to those who lost their land does not mean excluding others.
Finally, the question that needs to be asked is whether the local communities who lost their ancestral land as a result of colonial expropriation of their land are really feeling that they are being fairly treated when the land is being distributed under the resettlement programmes. It is because of this question that those who lost their ancestral land are demanding resettlement, and the issue of ancestral land is taking center stage in recent years after the liberation of the country. This burning issue may be solved through democratic restorative justice. This burning issue should by no means be considered to be or reduced to tribal or racial conflict between different tribal or racial groups. It should also not lead to supporting tribalism and ethnic conflicts. The fact is just that in the past, different geographical areas in the country were populated by specific tribal or racial groups and there are some areas where people were forcefully removed from land that they considered their ancestral lands while in some areas this did not happen.
The ancestral land is a historical and factual reality. That does not imply that people from other local communities must not migrate and settle freely in the areas which historically were occupied by other local communities. However, that should not be done in a manner that will infringe on the rights of those local communities who lost their ancestral land as a result of brutal colonial wars in those particular areas. There should be a sensitive balancing act that will maturely address the emotional feelings of the people concerned and historical sensitivity of the issues. It is against this reality that this sensitive issue must be openly discussed at the pending land conference.