Law reform key for expropriation

A legal expert has argued that while the constitution has long been seen as a roadblock to land reform, law reform is key to answer the question of what 'just compensation' means, and can also address claims to indigenous land.Lawyer Sisa Namandje argued on Monday at the ongoing second national land conference that the contested issues of compensation and indigenous land rights “could be accommodated through legalisation, subject to the constitution, so as to once and for all address our people's long-standing cries for justice on issues of land”.He emphasised that while constitutional amendments will be difficult, if not impossible, “legislation with due regard to injustices committed by the successive colonial regimes for over a century can give, through statutory reforms, a proper and fair meaning to the term 'just compensation'”. He further stressed that in respect of indigenous land claims, there are several constitutional provisions that such “fair but difficult claims implicate”.He added there is an urgent need for statutory reform that considers the importance of redressing individuals and communities who were dispossessed of land, including through the establishment of towns. Namandje pointed out the Local Authorities Act is “lacking from a humanity perspective”, as it does not provide a remedy for people dispossessed of land through the declaration of townships. Namandje further argued that an important constitutional duty is for lawmakers and elected officials to enact legislation that provides for the advancement of persons in Namibia, who have been socially, economically and educationally disadvantaged by past discriminatory laws. He said parliamentarians have a constitutional obligation to “make targeted policies to better the living conditions of the formerly disadvantaged and redress the imbalances in all spheres of life”. What barrier?Lawyer Norman Tjombe said Namandje's arguments are “wholly correct.”He told Namibian Sun “the constitution is not the problem - the problem is lack of creativity, innovation and work ethic on the part of those who must implement land reform, and the sheer greediness of many of the existing land owners who seem not to understand the terrible urgency for the need for proper land reform”.Tjombe explained the constitution, as the supreme law, is non-negotiable and cannot be changed. However, while just compensation is a constitutional provision for land that is expropriated, the term “does not necessary mean market-related prices being paid or what the seller and buyer may agree”, he said. Tjombe said in order to determine just compensation upon expropriation of land, various factors should be looked at, including how the land was dispossessed and the details around ownership over the years, the land use, vacant or unused portions of the land, size and what purpose the land is intended to be used for, in addition to other factors.He said determining a just price would then mean doing justice based on the factors, adding there could be instances, depending on these factors, in which just compensation would not necessarily be monetary.Moreover, while the willing-buyer, willing-seller policy is a common law concept, Tjombe noted the constitution does expressly sanction the expropriation of land, namely the forceful purchase of land by the state, if it is in the public interest and the compensation is just. Legal road aheadThe Legal Assistance Centre's Willem Odendaal recently explained that a 2008 landmark judgement, while it dealt a blow to government's efforts to expropriate four farms belonging to German owners, did give clear guidelines on implementing expropriation.“However, ten years after judgement in what has become known as the Kessl case, government has yet to follow the suggestions and recommendations of the High Court. Thus, while the constitution provides the answers to how land can legally be expropriated in the public interest, failure to comply with the court's recommendations appears to be the problem.”Odendaal warned that changing the constitution in order to compensate for the delay in the implementation of the High Court's recommendations on expropriation is clearly not the answer.Amendments to article 16, which deals with property rights and forms part of Chapter 3 on fundamental human rights and freedoms, might ultimately require “abolishing the Namibian constitution in its totality, as the provision which prevents expropriation without compensation is entrenched against amendments that would weaken it.”Moreover, abandoning the constitutional framework, Odendaal said, would have far-reaching political and economic consequences in the form of disinvestment, job losses, and as a result, higher inflation and higher living costs.JANA-MARI SMITH

Law reform key for expropriation

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Namibian Sun 2025-06-13

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Law reform key for expropriation

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Namibian Sun 2025-06-13

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