Constitution stands in way of land solution

The landmark 2018 national land conference has been dealt a blow by Article 16 of Namibia's constitution, which guarantees overarching rights for land barons.

23 December 2020 | Agriculture

JEMIMA BEUKES

WINDHOEK



Article 16 of the Namibian Constitution prohibits government from abolishing the much-criticised willing-buyer, willing-seller policy, dealing a heavy blow to aspirations of the 2018 second national land conference.

Article 16 falls under the Bill of Rights provision in the constitution and cannot be amended – not even through a referendum.

Government's plan to prevent Namibians from owning multiple farms, as per the resolution of the 2018 conference, will also not succeed as Article 16 would not allow this to happen.

These challenges were contained in a progress report on the implementation of the resolutions of the second national land conference.



The law

The land conference resolved to abolish the willing-buyer, willing-seller concept, which has in previous years been condemned by former president Hifikepunye Pohamba, who said it must be abolished to enable government to fast-track the land reform programme.

“Willing-buyer, willing-seller was a pusillanimous policy formulated to extend the cowardice of a cabinet afraid to implement expropriation to its letter,” lawyer Kadhila Amoomo commented to Namibian Sun yesterday. Under the willing-buyer, willing-seller policy, government acquires farmland at market prices, and is granted the “right of first refusal” for every farm that comes on the market.





During the 2018 land conference, it was also resolved to limit land to “one Namibian, one farm” to discourage multiple ownership of agricultural land by individuals.

“The eminent question under this resolution would be: Can we restrict a company from owning or selling considering the provisions of Article 16 of the Constitution? We should also consider the effect of the fact that this resolution does not draw a distinction between Namibian wholly-owned juristic persons and those of foreign nationality.

“The ministry has also indicated that according to its statistics, out of the privately owned farms in Namibia, there is less than 1% that is owned through juristic persons,” the report states.

Article 16 of the Namibian Constitution guarantees all persons the right to acquire, own and dispose of all forms of property in any part of Namibia.

Article 16 also allows government to expropriate property in the public interest subject to the payment of just compensation, in accordance with requirements and procedures to be determined by Act of Parliament.



Enough

Government has in the meantime concluded that the willing-buyer, willing-seller policy and expropriation are sufficient methods to acquire land.

“So far, the market has delivered land for acquisition. However, the power of acquisition relies on the status of an economy at a given time. It is the status of the economy that informs how much can be spend.

“While this programme continues to receive funding through an annual appropriation, the current economic turbulences did not allow the increase of funds for land purchase,” the report states.

The report further states that it would take government up to six years to acquire 1.3 million hectares of land if the budget of the ministry of land reform is approved.

The process to identify underutilised land owned by absentee landlords is still ongoing and for this the ministry employed a consultant in March 2019 to update its records, and so far, 90% of the work has been done.

Minister of land reform Calle Schlettwein received the report in August this year and referred it back to consultants in October 2020 for incorporation of MAWLR's inputs.

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