Windhoek: Namibia’s land reform programme was in the spotlight during the past week. A three-day Land Bill Stakeholders’ National Consultative Workshop ends today in the capital. The gathering was to advise Government on bringing the administration of all land under one consolidated legal framework.
The initiative follows realisation by the Ministry of Lands and Resettlement that it is unable to effectively fulfil its mandate and objectives due to certain legal and policy impediments. Simultaneously, the Institute for Public Policy Research (IPPR) released a review of the proposed Land Bill last week.
Wolfgang Werner, an independent development consultant and an associate of the Desert Research Foundation of Namibia (DRFN) and the Gobabeb Training and Research Centre, did the review. His research and consultancy work included several assignments on land reform and resettlement, land tenure, rural development and livelihoods and participatory poverty assessments.
There is no comprehensive policy on group rights in communal farming areas, except for a Draft Land Tenure Policy, which was approved in 2005 already. However, little is known about the draft policy as it seems as if it has not been debated with stakeholders, according to Wolfgang Werner, who reviewed the proposed Land Bill.
The Draft Land Tenure Policy provides for the demarcation of village boundaries by land boards in conjunction with traditional leaders. According to the draft, once demarcations have been carried out and village constitutions approved, villages should be registered and once registered, the village becomes a juristic person, in order to give better security to the land tenure of the members of the village.
A schedule of village members will be drawn up and registered members will receive 'formal rights over land and all resources in each village'.
The members will have the discretion to accept or reject persons of families wishing to enter their communities, subject to the provisions of the Namibian Constitution. The draft policy proposes that each resident/community member is entitled to a residential plot in the village, in addition to arable holdings. If he/she is a livestock owner, he/she may also have a cattle post in the grazing land, while individual households will still have their own parcels of residential and arable land, but use of grazing land is communal.
'Presumably, constitutions of villages will provide management guidelines for the commons,' Werner is of the opinion. According to Werner, the Draft Land Tenure Policy provides a very good basis for a debate on options for granting groups, as well as individual title to communal land.
He said the draft ought to be released in order for the public to debate its contents and make input into the Land Bill.
Issues that such debates need to address, according to Werner, include the powers of heads of registered clustered villages with regard to the allocation and/or cancellation of land rights. In addition, the content of rights granted to individual households within a clustered village needs to be defined more narrowly.
'The new Bill only specifies a procedure for inheriting village land. This is identical to inheriting land under individual customary tenure in so far as the land rights of a deceased land rights holder in a registered village revert to the village head,' the researcher explained.
The Bill, however, does not state that such land reverts to the village head for reallocation, as it does for traditional authorities.
A welcome feature of the Land Bill, Werner said, is that community-based organisations such as conservancies, women’s and farmers’ groups, as well as community development trusts may now be granted head leases to communal land. 'Importantly, they will be legally entitled to sub-lease land to an investor,' he added.
Strengthening compulsory land acquisition or expropriation has been identified as the first strategy of the lands sub-sector in the third National Development Plan (NDP3) to bring about a more equitable distribution of and access to land.
However, the expropriation of agricultural land remains a controversial issue, as the administration of the expropriation process had violated Namibian law on several grounds, although the principle of expropriation is legal.
Under the proposed Land Bill, expropriation of agricultural land remains the same as in the Agricultural Commercial Land Reform Act (ACLRA), although the Bill introduces some changes.
Among the changes is the omission of the Land Reform Advisory Commission (LRAC) from the process of expropriation, in contrast to the ACLRA, which requires the commission to make recommendations to the minister.
The minister therefore takes all decisions about expropriation on his/her own, without the recommendation of any commission or other institution. 'The reasons for this are not entirely clear. It is conceivable that the role of the LRAC was done away with to reduce the risk of falling foul of procedural errors in expropriating land,' Werner speculated.
Previous expropriation judgments ruled that a body like the LRAC was very important in the expropriation cases, as they were no mere formality. A body like the LRAC was needed because the required information on farms, even if gathered properly, is complex and difficult to interpret. 'The range of practical experience represented on the LRAC was necessary to evaluate all the information and make sound recommendation,' Werner stated.
During previous expropriation cases, the ministry was criticised for not having carried out proper investigations into the suitability of the farms for resettlement and hence expropriation. 'This became important in view of a contestation in court as to how the public interest was defined. The courts appear to have upheld the notion that land reform for poverty alleviation was a legitimate public interest,' Werner noted.
He noted that the court, however, found it necessary to investigate each farm to determine its suitability for land reform and to determine whether there was a public interest.
The Bill seems to address the criticism, in that the minister has to inspect land for purposes of expropriation, but this is not obligatory.
Another surprise change, Werner points out, is the fact that interests of people employed and lawfully residing on the land and their families need not be taken into account when expropriating farms. However, the ACLRA made it obligatory for the LRAC to consider the interests of such persons, namely farm workers. 'Instead of providing more protection for farm workers, the Land Bill makes them more vulnerable,' Werner said.
In an attempt to minimise the risk of falling foul to legal procedures, the Land Bill appears to have exonerated the minister from acting within specific time frames, to 'a reasonable period'.
The ACLRA, however, compelled the minister to present the farm owner with a counter-offer within 60 days. Werner is not certain whether the provisions on expropriation in the Land Bill will satisfy criticism levelled against land expropriation procedures. 'They certainly appear to make the process of expropriation less, rather than more transparent,' he added.
The researcher advised on the importance of reviewing and debating the expropriation process in the Land Bill against criticisms levelled previously, before the Bill is passed. 'The substance of such a debate will not be whether to expropriate or not. This has been found to be legitimate by the court. What needs to be discussed however is how to go about it in a fair and transparent manner,' Werner opined.
The issue of compensation for loss of land rights in communal areas continues to be unclear in the Land Bill. The Communal Land Reform Act (CLRA) states that where the President withdraws any communal land for any purposes in the public interest, this can only be done once the State has acquired all rights held by any person over such land and paid just compensation for the acquisition of such rights.
Suitable arrangements for the resettlement of people who lost land rights on alternative land are not part of compensation where the State acquires these rights. However, when leasehold is applied for to land that another person holds rights over, this can only be granted if the latter relinquishes his/her rights and negotiates compensation.
In this case, an alternative piece of land for resettlement has to be part of the compensation. It is recommended that the provision of an alternative piece of land should be part and parcel of any compensation package offered to people who lose their customary and/or lease rights to third parties.
With regard to unrecognised traditional authorities, the proposed new Land Bill does not offer any solution. In areas where traditional leaders are not recognised, the provisions of the law do not apply. 'For example, without a recognised traditional authority, there is no legal authority that can allocate, cancel and/or confirm land rights,' reviewer of the proposed Land Bill, Werner said.
Werner said the conundrum could be turned into an opportunity to democratise land administration by taking up the rejected resolution taken at the National Stakeholders Conference to propose amendments to the Communal Land Reform Act to establish Land Administration Committees. The committees were envisaged to perform the duties and functions of unrecognised traditional leaders. "One possibility of establishing such committees would be to allow land right holders to elect members to serve on them,' he advised.
Werner noted that the idea is not far removed from the proposals of the Draft Land Tenure Policy to establish clustered villages.
The proposed Land Bill has suggested slight modifications to the functions of the LRAC. Once the proposals are approved, the LRAC will henceforth receive and review recommendations of short-listed candidates for land allocation from regional land boards and submit its recommendations to the minister. It is hoped that this will ensure that a regional balance is maintained regarding the allotments of land.
In addition, the LRAC will also advise the minister on the allocation of rights of leaseholds.
The size of the commission has increased by one member, while the tenure of the commission also increased from three to five years.
Werner regrets that the section dealing with the prohibition on publication or disclosure of information has been retained in the Land Bill. Section 70 of the Bill prohibits the disclosure of any information regarding the business of the LRAC unless authorised by the minister. 'This is a superfluous clause that reduces accountability and transparency of the LRAC. It cannot be reconciled with the need of LRAC members to report back to their respective organisations and discuss issues raised in the LRAC with their constituencies,' Werner said.
The Land Bill appears to strengthen the principle of the right of first refusal. It proposes to make the alienation of the agricultural land by a trustee of an insolvent estate or the liquidator of a company, as well as the deputy sheriff or messenger of the court in execution of a judgment subject to a waiver to be granted by the minister.
The Bill further seeks to speed up the process of land acquisition by reducing the period of 90 working days for submitting an application to the Lands Tribunal to 60 working days for reviewing the purchase of land. However, the procedures for land acquisition by way of the willing seller, willing buyer principle have remained unchanged, with a few minor changes.
The provisions of the Agricultural Commercial Land Reform Act (ACLRA), that decisions taken by the minister on whether to acquire land or issue a waiver have to be taken on the recommendations of the Land Reform Advisory Commission (LRAC), have been retained in the Bill.