Protecting land rights first, not just following procedures

Namibia’s Constitution says land belongs to the State only if no one else lawfully owns it. This means one important thing: land in Namibia has never been “unowned.”

Long before colonialism, our communities managed land through traditional leaders, the Omukwaniilwa and Omalenga.

They are custodians of communal land, allocate it for homesteads and fields, control grazing, and collect oompale, an annual land tax from residents.

Land was owned, governed, and used to support communities. The paper title came with colonialism.

For over a century, that system has been undermined. Colonial Germany took land through war and genocide. Apartheid South Africa took it through racial laws and “native reserves” where customary rights were treated as second-class.

Today, we face a new risk: township proclamations that strip families of protection for their customary land and force them to move for small compensation, or to buy back land that the Constitution already says is theirs.

At independence in 1990, the Constitution tried to correct this. It transferred communal land to the State, but made it clear that the transfer is “subject to any existing right.” The State became a custodian, not the owner.

The Constitution also protects the right of all Namibians to own property, recognises customary law, and creates a Council of Traditional Leaders to advise on communal land.

Taken together, these provisions mean customary land rights are property rights, just like a title deed.

The Supreme Court confirmed this in 2018 in the Kashela case. The Court ruled that customary rights existing before independence remain protected after the proclamation.

People with those rights must get a fair process and “just compensation” at market value – the same as freehold land owners.

But in practice, the rules are not equal. When a town grows into commercial farmland, the Council pays the full market price.

When it is proclaimed or converted into communal land, families often receive only “just compensation” to relocate, or they must buy their own plot and start paying municipal bills.

Long-term lease

If they cannot, they lose basic services or risk losing their home at auction or face eviction.

We do not need to change the Constitution to fix this gap. We need to apply it properly. The solution is to let Traditional Authorities remain custodians of the land and lease the proclaimed area to Town Councils, similar to how the Crown leases land to the City of London.

Under this model, a proclamation would not cancel customary rights. The Traditional Authority would keep custodianship. The Council would receive a long-term lease to plan streets, install water and electricity infrastructure, and enforce bylaws.

The Council would also pay oompale, an annual land tax, to the Traditional Authority to replace the revenue it loses.

Families would keep their homesteads and fields. At proclamation, their rights could be registered as title deeds or recorded with the township, so they could use them as collateral. Compensation would be at market price, not “mere” compensation.

Residents would pay municipal rates and receive services like everyone else.

Town Councils should also share revenue with Traditional Authorities. Today, Councils pay 7% of their rates to Regional Councils but nothing to Traditional Authorities. A fair model would see Councils pay at least 10% of annual revenue directly to the Traditional Authority whose land hosts the town.

This approach does not require new laws. It uses what the Constitution already says. It treats customary rights as property. It treats proclamation as a change in administration, not the taking of land ownership from people.

If Namibia is serious about correcting the history of land dispossession, this is the path. Lease the land to the Council. Pay the oompale to Traditional Authorities. Let families stay on their land. Let custodians keep their role. That is how we protect the land rights of all Namibians equally.