Communal fencing: Who's benefiting?
09 September 2011
By: Willem Odendaal
NAMIBIA’S pre-independence legislation relating to communal land was developed in an unstructured manner, making it exceedingly confusing to interpret.
According to Manfred Hinz, colonial legislation made few inroads into traditional power to allocate land. In most areas, traditional leaders were still responsible for allocating land.
Several distortions in current traditional land tenure in communal land areas blur underlying arrangements. Firstly, in contrast to pre-independence claims, chiefs and headmen were not owners, but merely acted as high-level managers of communal land.
Secondly, a distinction between private land and communal land exists under customary law. For example, a plot consisting of a homestead (kraal) and fields, allocated by a chief or headman to the head of the homestead, could be seen as private property since the person occupying it was given lifetime tenure.
On the other hand, communal areas in the former Owamboland, which include communal grazing areas, hunting and gathering grounds outside inhabited areas, were accessible to all residents. Field managers managed communal land, channelled access, coordinated maintenance and guarded against overexploitation.
The colonial government entrusted headmen and chiefs to enforce customary laws and the area was self-governing. Headmen and chiefs normally had the power to allocate land and would show an individual the boundaries of his plot (normally about four to six hectares depending on family size); no written records were kept of land allocations, but people respected their boundaries and village headmen knew their villages well and could show who owned what, usually through knowledge that was passed on through oral tradition.
Persons, usually married men, received small plots of land for cultivation, but not for grazing, typically paying a head of cattle in exchange for land.
If an individual was a member of the traditional authority, he would be given a plot of land for free, so he could be located centrally.
Women or children were not given land, but people from outside the area could be allocated land. Grazing land was communally shared.
Under customary law, commercial farms were not allowed on communal land, but there were no other restrictions on land allocation, although an individual never had more than one plot of land.
Since Independence, the Namibian land reform process has focused more on reforming freehold (commercial) land than communal land, as evidenced by Parliament passing the Agricultural Commercial Land Reform Act in 1995, but only passing the Communal Land Reform Act in 2002 after a lengthy process in which various drafts exchanged hands in Parliament, the National Council and the Council for Traditional Leaders for comment.
It is estimated that as many as nine drafts of the Communal Land Reform Bill was circulated during the 12 years of its preparation. During this negotiation process, the lack of constitutional recognition of customary land tenure rights in communal areas resulted in communal farmers and traditional authorities having no statutory law remedy to defend their rights. Powerful interest groups often used this policy and administrative vacuum to their advantage and ignored customary land tenure rights to fence off large tracts of communal land.
Given Namibia’s pre-independence policy history of racial segregation and restricting movement, article 21(g) of the Namibian Constitution sought to guarantee freedom of movement in Namibia, while article 21(h) creates the right to reside and settle anywhere in the country, implying that land use policy and plans may not inhibit Namibians from moving, settling and acquiring land in any part of the country But this article clearly does not confer a right to settle on the land of others.
Article 16 of the Constitution and the Agricultural Commercial Land Reform Act of 1995 commit the Government to guarantee the right of all persons to own private property and to pay just compensation for all land acquired. No similar provision exists under the Communal Land Reform Act of 2002.
The Communal Land Reform Act came into being to consolidate often unwritten customary law into statutory law based on constitutional principles and to improve overall communal land management.
Communal land is generally argued to be vested in the State through article 100 and schedule 5 of the Constitution, which charge the state with administering communal lands in trust for the benefit of the traditional communities residing on these lands.
However, according to Harring, the government’s insistence that the State owns communal lands is incorrect.
COMMUNAL LAND ENCLOSURES
The Communal Land Reform Act explicitly ensures that the landless receive the main benefit from communal land.
The core principle is that individuals who wish to acquire large tracts of land for commercial farming should do so in commercial farming areas, not communal farming areas, based on the principle that communal land should provide a safety net for the poor and those who cannot find employment in the formal sector.
The lengthy negotiation process over the Communal Land Reform Act meant communal farmers and traditional authorities had no statutory law remedy to defend their rights, and powerful interest groups could ignore customary land tenure rights and fence off large tracts of communal land.
The land enclosures mean that powerful individuals have appropriated communal land for personal use at the expense of many communal farmers who do not have sufficient access to grazing land.
In the past, the Government has recognised land enclosures as a pressing concern affecting the livelihoods of subsistence farmers.
The 1991 Land Reform Conference acknowledged that wealthy Namibians had embarked on illegally fencing off communal lands and resolved to stop illegal land enclosures.
Nonetheless, little has been done to address the issue, particularly since the Communal Land Reform Act was passed in 2002.
Finding someone who is prepared to challenge the inadequate system of land enclosures has proven to be challenging, as many subsistence farmers affected by land enclosures are simply too afraid to stand up to the powerful elites responsible for the enclosures.
The Government could immediately take action against land enclosures by formulating and publishing a policy on the issue and by using the most serious cases as test cases for adjudication.
Many of the subsistence farmers the LAC interviewed said they will not hold off indefinitely in putting up their own fences if nothing is done to address land enclosures. If this happens, the face of communal areas in Namibia will change forever, with potentially devastating consequences for the poorest of the poor who mainly rely on access to the commonage to sustain their livelihoods.
* Willem Odendaal is a researcher for the Land, Environment and Development Project at the Legal Assistance Centre.
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