Not in our name!

28 September 2018 | Columns

BY JOHN B. NAKUTA



This paper is based on a recent presentation to civil society organisations (CSOs) and deals with the issue of restorative justice within the context of land reform in Namibia from a human rights perspective. The UN Human Rights Council recently clarified that restorative justice processes lend itself to be applied in a broad range of contexts. The work of the National Human Rights Commission of Malaysia is hailed as a best practice in this regard. Between December 2010 to June 2012 this commission conducted a national land inquiry into the land rights of indigenous peoples in that country. This was reportedly in response to numerous and persistent complaints by indigenous communities regarding the non-recognition and violation of their land rights. Through restorative justice lenses the commission then made a set of 18 key recommendations on how best to redress past and present land injustices committed against indigenous people. The African Court on Human and Peoples' Rights in a ground-breaking decision in favour of the Ogiek community of Kenya rendered on 26 May 2017, similarly, showed that restorative justice is very much relevant to land rights issues. In this case, the court through imaginative, progressive and purposive interpretation held that the right to property as guaranteed in the African Charter protects both individual and group/collective rights. The court's decision sets a major precedent for indigenous peoples' land rights in Africa. In the case of Namibia, it provides great relief for those who may want to claim the lands, territories and resources they traditionally owned and occupied as part of their right to property under article 16 of the constitution. These examples shows that infusing restorative justice into the land debate requires, at least, the recognition, restitution, reparation, and redesigning of State political-legal institutions and processes to redress our sad history of land dispossession. Suppressing such calls only breeds discontent.

Infusing restorative justice into the land debate also demands a proactive disclosure of land related information. Proactive disclosure is when information is made public at the initiative of the public body, without a request being filed. Proactive disclosure facilitates public engagement, participation, greater transparency, accountability and trust in government. It also gives effect to the people's right to access to information and their right to know. Add to this, the authoritative voice of the African Commission on Human and Peoples' Rights which clarified that: 'public bodies hold information not for themselves but as custodians of the public good'. Not so in the case of Namibia, it seems! Sadly, all the information about the much anticipated second land conference thus far originated from leaked documents and not through proactive disclosure by a public body. This is a serious indictment and makes a mockery of the much-hailed Harambee goal and outcomes on accountability and transparency.

Related to the above is the issue of a land audit that was, logically, to have been carried out before the second land conference. Such an audit was supposed to provide information viz. the various types of land tenure systems of the government, desegregated data on those who benefited from the various land reform programmes and who is currently left out under these schemes. Also, how much land is still available in Namibia for redistribution purposes? Why was a comprehensive land audit not carried out? Such an audit would have greatly assisted people to take informed decisions at the conference.

Another sticky point relates to the list of delegates to the conference. CSOs rightly lamented, about the composition of the list of delegates to the land conference. As things stand, the vast majority of those who will be attending are politicians, senior government officials and ruling party functionaries. This lends credence to the notion that the land debate has been hijacked for political party and elite gains. Also, that it lacks a genuine re-distributive agenda.

It therefore will not be surprising for the conference to reject such calls and thereby permanently suppress the debate on ancestral land claims. Such a resolution, to put it bluntly, would have been obtained through manufactured consent in total contradiction of human rights standards and principles.

International and human rights law require that people must be consulted and must participate in matters which affect their lives and livelihoods. This is best achieved through consent-making processes aimed at obtaining the free, prior and informed consent (FPIC) of those that would be affected by a decision. Importantly, the 'free' in FPIC means that consent must be obtained with no coercion, intimidation or manipulation. It is in this context that the composition of the delegates list to the land conference must be frowned upon and seen for what it is: contemptuous, deceitful and malicious.

I mooted to CSOs and non-state actors to seriously reconsider their participation in the 2nd land conference to avoid becoming accomplices and giving legitimacy to a process that is fundamentally flawed and undemocratic. It is highly disturbing that what was ideally supposed to be a people summit on land has been hijacked for short term political gains. To the ruling elite I say: not in our name because manufactured consent is not consent!

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