The case of the Hai//Om & Etosha

The Namibian government is faced with its first claim for ancestral land with papers filed in the High Court in Windhoek by the Hai//Om seeking restoration of their rights to Etosha National Park and 11 farms in the Mangetti. While the matter is being heard in preparation for trial, it has, justifiably so, attracted a lot of attention.

The Hai//Om, led by Andrew Corbett (SC) under instruction of the Legal Assistance Centre, seek ownership of portions of the park and 11 farms in the Mangetti, exclusive beneficial occupation and use of the said land, as well as full rights to development and other claims of use. In the alternative, they seek an “award of land of equal extension and quality to the land described and compensation in the amount of N$3.9 billion”.

A portion of the proceeds made by the national park from 1958 and other developmental and cultural claims are also described in the voluminous application.

The matter will become a watershed case for the country and if legal expert Professor Nico Horn is correct, the group have a very strong case.

“In the first instance, Article 144 of the Namibian Constitution states that any international agreements signed by the government form part of the law in Namibia,” Horn told Namibian

Sun.





There are a host of these agreements which give legal impetus to the Hai//Om covering ancestral, cultural, human and other rights, which are all listed in the papers and which the government is a signatory to.

According to Horn, two very important rulings in this regard are critical to consider for the Hai//Om claim. In a research paper Horn penned in 2005, regarding the rights to land of the Ovaherero and Nama people in light of the genocide, he lists the Eddie Mabo matter in Australia and the ruling of the International Court of Justice on the case of the Western Sahara.

In October 1975, the International Court of Justice issued an advisory opinion after Morocco, backed by Mauritania, requested a ruling on its claim of sovereignty over the Spanish Sahara. In its ruling, the court said that “the materials and information presented to it do not establish any tie of territorial sovereignty between the territory Western Sahara and the Kingdom of Morocco or the Mauritanian entity.” It thus ruled in favour of the right to self-determination of the Sahrawi people.

In the case of Eddie Mabo, a landmark case in Australia for Aboriginal people, his people's ancestral land on Murray Island was restored 18 years after he began to fight for it. In 1975 he discovered that he, along with hundreds of thousands of others across the world, was a victim of res nullius.

Res nullius was a principle applied by colonial powers, both in Australia and elsewhere across the world, to state that the area was uninhabited when they arrived or, that the people who lived there had not cultivated the land. When that failed they applied a theory of European supremacy.

According to Horn: “This theory was clothed in morality by legal theorists, who pointed out the benefits that would be brought to the backward people through Christianity and through European culture and civilisation.”

This implied that all colonial land acquired by the subjects of colonial powers belonged to that colonial power and only the property rights acknowledged by the powers were valid.

The Australian High Court took cognisance of international law and the advisory ruling of the International Court of Justice finding that res nullius is a territory not belonging to anyone. The International Court of Justice had ruled that agreements signed between tribal leaders and colonial powers are in fact derivative roots of title and not original titles on the land obtained as terrae nullius.

They found, and were unanimous in their ruling, that Western Sahara was not a res nullius when it was occupied by Spain in 1884.

In his paper, Horn writes that “the essence of the judgement entails the acknowledgement of the High Court of Australia that the pre-colonial rights of the Aboriginal people not only survived colonialism but that those rights are enforceable by law.

“The importance of the Western Sahara case is that it excludes the possibility of considering inhabited land as terra nullius based on technical terms or some test of civilisation.”

Interestingly, the Namibian government has repeatedly expressed their support for the self-determination of the Sahrawi people of Western Sahara.

Mabo launched his case in 1974 but died in 1992, five months before the court ruled that his people, the Meriam people, had an inalienable right to Murray Island.

According to the BBC, “he petitioned, campaigned and questioned terra nullius for 18 years. The judges ruled that Aboriginal people were the rightful custodians of the land. They satisfied themselves that Aboriginal people had been in Australia first, did have a long, rich culture that denoted civilisation and had voluminous evidence of land demarcation, usage and inheritance, to back up their claims of longevity and history.”

In the documents filed on behalf of the Hai//Om in Windhoek, much of their history, cultural and familial claims to several waterholes in Etosha, burial sites and more, are discussed. Further to this, the group also told the court that in the 1960s, the Odendaal Commission created homelands for all Namibia's indigenous people, save the Hai//Om.

In 1958, they were put off the land and in their papers they say that by 1990, they “had lost all access to their ancestral lands save for the Mangetti, other than in subordinate capacities such as farm labourers, domestic workers, park employees, squatters or temporary visitors. They were landless, marginalised and living in conditions of great poverty.”

After 1990, the Hai//Om told the court that the government “has failed to take any substantial or adequate measures to address the vulnerability and marginalisation of the Hai//Om. The [government] has breached its constitutional and international law obligations to the Hai//Om.”

According to Horn, in his article on the land rights of the genocide victims, the idea that one more than one right can exist over a farm is not unknown in both common and statutory law in Namibia. He cites mining rights and lease contracts as examples.

“The white farmers have emphasised their constitutional rights in terms of Article 16 of the Constitution. However, none of the parties have thus far attempted to place their points of departure in a historical context. For the government, the original inhabitants of the land are synonymous with the previously disadvantaged and on the other hand, the white farmers have thus far not made an effort to consider the possibility of other rights that may exist on their farms.”

He told Namibian Sun that he is of the view that a land tribunal would have dealt with these issues effectively. He said he is “sorry that government has waited and has not instituted a land tribunal to deal with various claims”.

He added that “according to international law, even if you lose land through colonialism, it is still yours. And the groups can all prove it. The old names still exist in so many places across the country.”

Ancestral land has long featured in local debates and President Hage Geingob himself said on 21 March this in Rundu that “In terms of ancestral land, we welcome proposals from all concerned Namibians so that we are able to reach a national consensus before proceeding with new measures to address the land problem. Of course, one question I ask when addressing land is, who the owners of Windhoek and surrounding areas are? The San people always seem to be left out of the discussion on land even though they, more than any other group of Namibians, have more of a right to claim a large proportion of this country's land.”

There is no doubt that the Hai//Om matter will be closely watched, also by international spectators and rights groups. Experts agree the Hai//Om have a strong case and all say, it will be a landmark case for Namibia.

YANNA SMITH