When ‘participation’ isn’t consent: Why Baynes Dam and mining in Kunene demand a rethink on FPIC
• Consultation without consent does not constitute development
Alphons Kahuhu KoruhamaPublic participation is a guiding principle in Namibia’s Constitution and environmental laws. Yet in practice, participation has not always amounted to consent – particularly for Indigenous and rural communities whose lands, cultural landscapes and livelihoods stand to be transformed by large-scale developments.
The ongoing controversy around the Baynes Dam on the Kunene River, together with the surge in mining activity across the Kunene Region, illustrates a growing truth: Namibia’s environmental governance framework must evolve to align with international standards on Free, Prior and Informed Consent (FPIC).
The Environmental Management Act (EMA) of 2007 aims to promote sustainable development and protect the environment in accordance with Article 95(l) of the Constitution.
Section 2 of the Act states that there must be “timeous participation of interested and affected parties”. Section 3 adds that participation “must be promoted” and that community involvement in natural-resource management should be “facilitated”.
However, the Act nowhere imposes a legal obligation to obtain consent from affected communities. The Environmental Impact Assessment (EIA) Regulations focus on notification, opportunities to submit comments, and the holding of public meetings.
The regulations, gazetted in 2012 under the then Minister of Environment and Tourism Netumbo Nandi-Ndaitwah, require project developers or their appointed assessors to notify all potential interested and affected parties (Regulation 21) and to provide them with all relevant facts regarding the application.
Regulation 21 also allows officials, with the Environmental Commissioner’s approval, to deviate from routine public participation procedures. While intended to provide flexibility, this creates room for consultations that are too short, overly technical, or inaccessible to the very communities most affected. In such cases, people may be informed – but not necessarily heard. Consultation is meant to be a two-way process, yet the law provides neither veto power nor a requirement for genuine consent.
What international law requires
Namibia is a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which upholds FPIC as a fundamental right. Article 19 requires states to “consult and co-operate in good faith” with Indigenous peoples to obtain their free, prior and informed consent before adopting or implementing measures that affect them.
“Free” means decisions must be made without coercion or manipulation. “Prior” means before any decision or activity begins. “Informed” means that communities must receive all relevant information in their own languages and through their customary decision-making structures.
“Consent” means they have the right to say yes or no.
Namibia has not yet incorporated FPIC into its environmental or mining legislation.
This omission continues to generate conflict between national development objectives and the rights of Indigenous communities whose territories and livelihoods are implicated.
The proposed Baynes Hydropower Project, jointly promoted by NamPower and Angola’s electricity utility under the Permanent Joint Technical Commission (PJTC), has been presented as a regional energy solution. However, many OvaHerero, Himba and Ovazemba communities along the Kunene River maintain that they were not adequately consulted, or that the sessions resembled one-way information briefings rather than genuine dialogue.
Although the PJTC lists specific communities as having been consulted, many residents of Orokaue and surrounding areas insist they were excluded from meaningful participation.
Under FPIC standards, affected communities have the right to determine whether a project should proceed after receiving comprehensive, accessible information on its potential impacts on land, ancestral graves, cultural heritage sites and access to the river. Yet the current process focuses narrowly on environmental studies and engineering considerations, with little attention to genuine community consent.
The OvaHerero Bio-Cultural Protocol, which maps sacred and culturally significant areas in Kaokoland, explicitly states that developments such as Baynes should not proceed without full respect for traditional governance, spiritual heritage, and properly conducted prior informed consent.
These principles have been mainly overlooked.
By treating participation as a procedural formality rather than a substantive right, the Baynes project falls short of the FPIC standard that Namibia committed to uphold under UNDRIP.
A growing source of discontent
Beyond Baynes, mining exploration is expanding rapidly across Kunene. Companies are entering communal lands in the Opuwo Rural, Sesfontein and Epupa constituencies in search of lithium, rare-earth minerals, copper and marble.
Although the EMA requires public consultation, these meetings are often held far from the affected villages, conducted in English, and rarely include interpreters or independent experts who can explain technical documents. Environmental Clearance Certificates are frequently issued despite community objections –demonstrating that communities have no veto power and that their concerns can be easily overshadowed.
This raises fundamental questions: Are communities genuinely giving consent, or are they merely being informed of decisions already made? Who benefits from these developments, and who absorbs the losses?
Without FPIC in national law, public participation risks becoming a box-ticking exercise, while communities stand to lose access to grazing land, water resources and cultural sites that define their identity.
If Namibia is committed to inclusive and sustainable development, it must bridge the gap between participation and consent. This requires:• Amending the EMA to require FPIC where Indigenous or communal lands are affected.
• Ensuring that consultations carry legal weight, allowing “no” to mean “no”.
• Recognising traditional authorities and community institutions as legitimate representatives, while addressing disputes over recognition and jurisdiction.
• Translating environmental reports and holding meetings in accessible locations and in local languages.
• Providing independent oversight of EIA processes so communities are not left to challenge powerful projects alone.
Consequences of persistent gaps
If developers and authorities continue to treat participation as consent, communities have various avenues available under domestic and international law. These include submitting objections to the environmental commissioner, requesting the ombudsman to investigate, initiating High Court proceedings for constitutional violations, filing complaints with the African Commission on Human and Peoples’ Rights, or appealing to UN mechanisms. Public advocacy and media exposure are also likely to intensify if procedural lapses persist.
Litigation is rarely the preferred route, but when meaningful dialogue fails, the law becomes the only remaining channel.
The Baynes Dam proposal and the expanding mining frontier in Kunene show that consultation without consent does not constitute development. It amounts instead to dispossession masked as procedure. Having pledged to uphold FPIC under the United Nations system, Namibia must now ensure these commitments are realised in practice.
Communities are not opposed to development. They insist on participating meaningfully in decisions about their land, culture and future. For Namibia to implement sustainable, legitimate and enduring projects, it must begin by listening – and by respecting the right to say “no.”
The ongoing controversy around the Baynes Dam on the Kunene River, together with the surge in mining activity across the Kunene Region, illustrates a growing truth: Namibia’s environmental governance framework must evolve to align with international standards on Free, Prior and Informed Consent (FPIC).
The Environmental Management Act (EMA) of 2007 aims to promote sustainable development and protect the environment in accordance with Article 95(l) of the Constitution.
Section 2 of the Act states that there must be “timeous participation of interested and affected parties”. Section 3 adds that participation “must be promoted” and that community involvement in natural-resource management should be “facilitated”.
However, the Act nowhere imposes a legal obligation to obtain consent from affected communities. The Environmental Impact Assessment (EIA) Regulations focus on notification, opportunities to submit comments, and the holding of public meetings.
The regulations, gazetted in 2012 under the then Minister of Environment and Tourism Netumbo Nandi-Ndaitwah, require project developers or their appointed assessors to notify all potential interested and affected parties (Regulation 21) and to provide them with all relevant facts regarding the application.
Regulation 21 also allows officials, with the Environmental Commissioner’s approval, to deviate from routine public participation procedures. While intended to provide flexibility, this creates room for consultations that are too short, overly technical, or inaccessible to the very communities most affected. In such cases, people may be informed – but not necessarily heard. Consultation is meant to be a two-way process, yet the law provides neither veto power nor a requirement for genuine consent.
What international law requires
Namibia is a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which upholds FPIC as a fundamental right. Article 19 requires states to “consult and co-operate in good faith” with Indigenous peoples to obtain their free, prior and informed consent before adopting or implementing measures that affect them.
“Free” means decisions must be made without coercion or manipulation. “Prior” means before any decision or activity begins. “Informed” means that communities must receive all relevant information in their own languages and through their customary decision-making structures.
“Consent” means they have the right to say yes or no.
Namibia has not yet incorporated FPIC into its environmental or mining legislation.
This omission continues to generate conflict between national development objectives and the rights of Indigenous communities whose territories and livelihoods are implicated.
The proposed Baynes Hydropower Project, jointly promoted by NamPower and Angola’s electricity utility under the Permanent Joint Technical Commission (PJTC), has been presented as a regional energy solution. However, many OvaHerero, Himba and Ovazemba communities along the Kunene River maintain that they were not adequately consulted, or that the sessions resembled one-way information briefings rather than genuine dialogue.
Although the PJTC lists specific communities as having been consulted, many residents of Orokaue and surrounding areas insist they were excluded from meaningful participation.
Under FPIC standards, affected communities have the right to determine whether a project should proceed after receiving comprehensive, accessible information on its potential impacts on land, ancestral graves, cultural heritage sites and access to the river. Yet the current process focuses narrowly on environmental studies and engineering considerations, with little attention to genuine community consent.
The OvaHerero Bio-Cultural Protocol, which maps sacred and culturally significant areas in Kaokoland, explicitly states that developments such as Baynes should not proceed without full respect for traditional governance, spiritual heritage, and properly conducted prior informed consent.
These principles have been mainly overlooked.
By treating participation as a procedural formality rather than a substantive right, the Baynes project falls short of the FPIC standard that Namibia committed to uphold under UNDRIP.
A growing source of discontent
Beyond Baynes, mining exploration is expanding rapidly across Kunene. Companies are entering communal lands in the Opuwo Rural, Sesfontein and Epupa constituencies in search of lithium, rare-earth minerals, copper and marble.
Although the EMA requires public consultation, these meetings are often held far from the affected villages, conducted in English, and rarely include interpreters or independent experts who can explain technical documents. Environmental Clearance Certificates are frequently issued despite community objections –demonstrating that communities have no veto power and that their concerns can be easily overshadowed.
This raises fundamental questions: Are communities genuinely giving consent, or are they merely being informed of decisions already made? Who benefits from these developments, and who absorbs the losses?
Without FPIC in national law, public participation risks becoming a box-ticking exercise, while communities stand to lose access to grazing land, water resources and cultural sites that define their identity.
If Namibia is committed to inclusive and sustainable development, it must bridge the gap between participation and consent. This requires:• Amending the EMA to require FPIC where Indigenous or communal lands are affected.
• Ensuring that consultations carry legal weight, allowing “no” to mean “no”.
• Recognising traditional authorities and community institutions as legitimate representatives, while addressing disputes over recognition and jurisdiction.
• Translating environmental reports and holding meetings in accessible locations and in local languages.
• Providing independent oversight of EIA processes so communities are not left to challenge powerful projects alone.
Consequences of persistent gaps
If developers and authorities continue to treat participation as consent, communities have various avenues available under domestic and international law. These include submitting objections to the environmental commissioner, requesting the ombudsman to investigate, initiating High Court proceedings for constitutional violations, filing complaints with the African Commission on Human and Peoples’ Rights, or appealing to UN mechanisms. Public advocacy and media exposure are also likely to intensify if procedural lapses persist.
Litigation is rarely the preferred route, but when meaningful dialogue fails, the law becomes the only remaining channel.
The Baynes Dam proposal and the expanding mining frontier in Kunene show that consultation without consent does not constitute development. It amounts instead to dispossession masked as procedure. Having pledged to uphold FPIC under the United Nations system, Namibia must now ensure these commitments are realised in practice.
Communities are not opposed to development. They insist on participating meaningfully in decisions about their land, culture and future. For Namibia to implement sustainable, legitimate and enduring projects, it must begin by listening – and by respecting the right to say “no.”
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