LEAD works directly with marginalised indigenous communities throughout Namibia. Of particular focus is the nation’s oldest inhabitants, the San people. The LAC is also dedicated to advocating on behalf of the Himba people.
Indigenous Peoples’ Land Rights
- Etosha case
LEAD continues to represent the Hai||om San in an ancestral land claim over their ancestral land, the Etosha National Park. The Hai||om was evicted from the Park in the 1950s, and as a result became landless and one of Namibia’s most marginalised communities.
Consultations and filing of pleadings continued in the ancestral land rights claim of the Hai||om community. This case revolves around issues that have not been previously ventilated in the Namibian legal system, and it is therefore imperative that preparation is comprehensive.
Consultations were held with the different legal support teams as well as with the clients and experts on the issue. An affidavit from James Anaya, world renowned ancestral land rights expert and formerly the United Nations Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples recognising the plight of the Hai//om supported the case by filing an affidavit on behalf of the applicant.
The restrictive locus standi rules of common law in Namibia does not cater for representative action procedures. Thus, in order to bring the matter to court on behalf of 2,700 Hai||om clients, the applicants first needed to apply to the High Court to address the issues of right of appearances by the applicants representing the interests of the Hai//om people by way of a class-action type certification process.
All the necessary papers were filed, and the matter was due to be argued in November 2017 before a full bench of the High Court. However, South African Counsel for the Respondents was engaged in hearings in their Supreme Court which takes precedence over the High Court, and as a result the matter was postponed for hearing to May 2018 just to be postponed again by the High Court.
Thereafter, the matter was finally heard by the High Court from 26-29 November 2018. Judgment was given on 28 August 2019, during which the application for representative action was dismissed.
An appeal against the High Court decision was filed in December 2019, and the Supreme Court Registrar will notify of the hearing date in due course.
If clients are successful with the appeal, it could bring about positive changes to the Namibian jurisprudence on the interpretation of locus standi. Representative actions, which are similar to class actions, can be especially beneficial to those who want to determine their socio-economic and environmental rights.
The “Etosha” case is a clear example of the complex nature of ancestral land claims litigation taking years to complete. While ancestral land rights cases are well established internationally, the Etosha case is the first of its kind in Namibia. It took approximately 5 years of legal research into the matter before the application was launched in the High Court in August 2015.
- Submissions to the ancestral land commission
LEAD assisted the Khwe people in their submissions to Ancestral Land Commission. The Khwe people are one of Namibia’s San groups. Their ancestral land extents through what used to be known as the Western Caprivi Strip, of what today is known as the Bwabwata National Park.
The Khwe people faced subjugation and dispossession at the hands of the colonial government and other more influential cattle herder communities in the area. Although the San were hopeful that change would come after independence, little has been done by the government to address the dispossession and lack of access to resources experienced by the Khwe people.
Coupled with the circumstances of the Kwhe people, continued reticence of the state administrators to allow for the establishment of a Khwe Traditional Authority in line with the Traditional Authorities Act has proven to be a source of dismay to the Kwhe people as it continues to discriminate and demoralise.
It is for this reason that the Khwe found it imperative, to submit a claim to the Ancestral Land Commission, in the hopes that they could claim land that they have been living on since time immemorial.
As part of the recommendations made, it was proposed that the government officially recognise the Khwe Traditional Authority to put them in a position to actively participate in the decisions pertaining to their ancestral land and its resources. Further, it was also stated that it is paramount that the government recognise the Khwe people are “entitled to ownership or rights of exclusive and beneficial occupation and use of their ancestral land.”
We are still awaiting the release of the Ancestral Land Commission report, and it remains to be seen what the government will do with the report; whether after decades of subjugation, the Commission’s report will give support to Khwe community’s ancestral land rights over today’s Bwabwata National Park.
- Assistance with bringing cases to court
LEAD has assisted a number of San communities in bringing matters before the court.
One of which is the N≠a Jaqna Conservancy case that dealt with illegal fencing and resulted in a favourable outcome in 2016. Through this application, the court ordered the eviction of several illegal fencers. However, government agencies have through the years failed to carry out the court order. Despite this, the judgment has set a precedent for other problem areas on communal land regarding illegal fencing and the removal thereof. LEAD is currently exploring alternative remedies to find a workable solution to the problem of illegal fencing, settling and unlawful cattle farming in the conservancy.
In the Nyae Nyae Conservancy case, a case brought against certain unlawful occupiers and cattle farmers who enter and utilise the conservancy resources at the expense of the local members of the Ju/’hoansi San community and conservancy management without any lawful reason to do so.
On 7 May 2020, the application was dismissed due to the non-compliance with the Justices of Peace Act. Since the full judgment was not delivered at the time of updating the site, the reasons for the judgement are not yet known.
LEAD has also brought on behalf of Mutaambanda Kapika, who sought to have the decision of the Minister of Urban and Rural Development, in terms of which he appointed Mutaambanda’s older brother as chief annulled. The argument was that no wider consultation with the Ombuku community was undertaken before this confirmation took place. Judgment in favour of our client was handed own in 2018. An appeal to the matter was heard on 9 October 2019, and we are waiting on an outcome. The issue of chieftainship is a vital part of indigenous land rights, as it has direct consequences on how land is administered and distributed.
LEAD has over the years been working on the following projects to protect the rights of indigenous people:
- The Xoms |Omis Project
- Human Rights Training
The documentation of Hai||om cultural heritage in Etosha National Park began in 1999 as a small collaborative project involving researchers from the University of Cologne, Germany, the University of Cambridge, England and a group of Hai||om elders.
As the process gained momentum, it became formalised into the Xoms |Omis Project (Etosha Heritage Project), now managed through the Legal Assistance Centre in Windhoek.
Through the support of international donors, the Xoms|Omis Project aims to provide documentation of Hai||om cultural heritage and to deliver a unique body of cultural, historical and environmental knowledge.
It is envisioned that this project will build capacity among the Hai||om people and provide a sustainable means of income generation. Visit a web site directly dedicated to this project.
Background to the Xoms |Omis Project
During the 19th and for a part of the 20th century, the Hai||om lived in a region that stretched from Owamboland, through present-day Etosha, to Grootfontein, Tsumeb and Otavi and south to Outjo and Otjiwarongo.
When Etosha was established as a park in 1907, the German colonial administration tolerated – and indeed welcomed – the presence of the Hai||om, much of whose traditional territory outside the park had been colonised by white settlers. At any given time between a few hundred and a thousand Hai||om lived in the park, with numbers varying according to the prevailing economic and environmental conditions.
The Hai||om remained in the Etosha National Park for almost a half-century until 1954 when they were evicted from their ancestral home. As a result, they joint the legions of landless farm-labourers, from one generation to the next, eking out a living on the farms on Etosha’s borders.
Since 2004, the Hai||om have had a recognised Traditional Authority, a significant development as it facilitates communication and negotiation between the community and state institutions.
In 2008, one farm and a portion of another closest to the border of Etosha were bought by the government for resettlement purposes. It is intended to accommodate 200 Hai||om households there. Around 2012the government planned to buy some more farms for the Hai||om, all of them adjacent to Etosha National Park. However, it is not known whether this will still take place or not.
- Born in Etosha, Homage to the Cultural Heritage of the Hai||om: This 2009 publication is the first to pay homage to the forgotten history of the Hai||om who lived in the area and whose lives the proclamation of the park completely transformed. Through images, personal reminiscences, character sketches and depictions of some of the more important water holes, Born in Etosha provides an insightful tribute to these former residents. Read a press release from the launch
- 100 Years in Etosha: Not Everyone is Celebrating: The area south of the great white Pan, where most of the tourist roads are situated, has long been home to the Hai||om, an indigenous hunter-gatherer community. Today the Hai||om are among the most disadvantaged of Namibia’s San population. Read more about the issues surrounding Etosha as it celebrates its Centenary in this newspaper column.
- Human Rights Training
LEAD regularly conducts workshops in areas predominantly inhabited by San communities. The objectives of the workshops are:
- To provide general legal education to the selected leaders.
- To educate the Khwe leadership on human rights standards and the obligations which such standards impose on the state and its functionaries.
- To discuss and highlight pertinent legal and social problems confronting the community.
- To train the selected leaders on the main provisions of identified laws which is of immediate relevance to them.
- To install a sense of assertiveness in the Khwe leadership to address the challenges faced by the Khwe community in a proactive and assertive manner.
Some of the topics covered include:
- Constitutional, Customary Statutory Law and Human Rights
- Structure and duties of Government, Duties of Police, Criminal Procedure Act
- Functions of Ombudsman and Prosecutor General
- Traditional Authority Act
- Communal Land Reform Act Research and other resources
LEAD has been a leading voice in standing up for the rights of Indigenous people. The unit has assisted Indigenous communities and brought issues they face to the national agenda by authoring several publications including:
- “Neither here nor there” Indigeneity, marginalisation and land rights in post-independence Namibia or in individual chapters (2020)
- Scraping the Pot: San in Namibia two decades after Independence (2014)
- Indigenous Peoples and climate change in Africa (2013)
- God stopped making Land (2012)
- What has happened has happened (2011)
- Elite Land grabbing in Namibian communal areas (2011))
- Our Land They Took (2006)
- San Communal Lands Contested: The Battle of N#a Jaqna (2006)
- A Gender Perspective on the Status of the San in Southern Africa (2001)
- An Assessment of the San in Namibia (2001)
- An Assessment of the San in South Africa, Angola, Zambia & Zimbabwe (2001)
- An Assessment of the San in Southern Africa: Botswana
- Status of the San in Southern Africa (2001)
- The Epupa Debate (1998),