Utoni fights back
Government acting as conduit to facilitate a 99-year land lease deal for a Russian billionaire has effectively opened up the floodgates for other rich foreigners to enjoy the same benefits, a constitutional expert has warned.
24 October 2018 | Agriculture
Nujoma also said as line minister he has the power to give consent to any person to lease land, including commercial properties.
He also claimed the farms in question were not suitable for resettlement and that government had explicitly rejected their sale to a foreigner.
He also revealed during a media conference yesterday that Comsar Properties SA - a company owned by Russian billionaire Rashid Sardarov – had first approached government in November 2017 seeking consent to buy the four farms in the Dordabis area where he already owns a 28 000-hectare property on which the state-of-the-art Marula Game Lodge is built.
Nujoma said Comsar had proposed to invest billions in the hospitality sector and also wanted to donate N$25 million towards sports development, the purchasing of two resettlement farms and the renovation of two rural schools.
Government rejected the initial proposal, Nujoma said yesterday.
At the end of the day it was decided Comsar could donate the money to government to purchase the four farms in exchange for a 99-year leasing deal.
Nujoma had personally signed the transfer deeds and the farms are now registered as government property.
According to documents already in the media, Sardarov paid
N$2 500 per hectare for four farms totalling around N$43.5 million.
Farms Rainhoff, Kameelboom and Smaldeel, totalling 11 402 hectares, were sold as a unit for N$28.5 million while Farm Wolfsgrund was sold for N$14.9 million and is 5 989 hectares in size.
Several questions have been raised around the Comsar cash donation, used to purchase the four farms.
Among these questions is whether, after government bought the four farms, they should have been handled in terms of the country's resettlement policy, which is supposed to benefit poor and landless Namibians.
Another question is why Nujoma used his executive power to give the Russian a lease that exceeds the prescribed period of ten years for foreigners by a whopping 89 years.
At risk of litigation
According to constitutional law expert, Professor Nico Horn, the deal will not only cast a shadow over the integrity of the Swapo-led government, but has the potential to open Namibia up to litigation from foreigners interested in owning land in Namibia.
Horn also said a 99-year lease “can very much be regarded as a sale of land”, as it will benefit three to four generations.
“I think the repercussions for the government are huge and for many of us who considered the land conference as a positive happening in Namibian history, it is sad to see that the whole bona fides of government are going to be questioned because of this deal that went through. And even if the Russian is going to invest in the country, it is so contrary to the spirit of the land conference,” Horn said
He also believes white Namibian farmers may also demand the same treatment as was bestowed on the Russian.
Horn also said the constitution protects property rights and the leased land cannot be taken away from the Russian for now.
“We still have the rule of law in this country and we cannot take away land from somebody who has gone through all the legal processes and attained the land.”
Horn added it would be best to wait until the recommendations of the country's second land conference become law.
The leasing document, crafted by Sardarov's lawyer Sisa Namandje, who is also President Hage Geingob's private attorney, makes a bold case for why government should lease the Russian the land, with tenure equal to what Namibians enjoy under the resettlement policy.
“The minister, in view of the developmental and economic benefit that will arise from the investment to be made by the lessee [Sardarov], has proposed that the four farms should rather be acquired by the government at the full cost and account of the lessee (including both the purchase price and compensation demanded by the farm owners), and the latter to lease the four farms on a 99-year lease in accordance with this agreement,” Namandje's document states.
But this argument around economic benefit essentially creates a precedent which would force government's hand if it receives similar proposals from rich foreigners in future.
The Popular Democratic Movement (PDM) said last week it is busy preparing a court application to have the Sardarov transaction declared null and void.
PDM parliamentarian Nico Smit said this week they have been advised by three different top lawyers that their case is solid.
“Our legal representative advised that the said agreement between Comsar SA and the minister constitutes a scheme designed to circumvent and avoid the peremptory provisions of the Act. Such a scheme is unlawful and liable to be set aside,” said Smit.
It's illegal – Tjombe
Local human rights lawyer Norman Tjombe concurs with the PDM that the land deal was illegal.
“The arrangement of the complex purchase (of land) by a foreign national or entity, and donated to the state, only to be leased back to the foreign entity or national, is illegal and a circumvention of the laws of the land,” said Tjombe.
Former Swapo Party Youth League (SPYL) secretary Elijah Ngurare said it is very difficult for this deal to be defended, and that a lot of grey areas exist which government must fill in.
Ngurare urged government to come out and explain the terms and conditions of the deal to Namibians.
“To defend the 99-year lease agreement is to be willingly in the same WhatsApp group as those who argued that colonialism and apartheid were legally correct.
“Russia will never accept a businessman from Okalongo or Katjinakatji leasing land for 99 years in Russia.
“China will never allow a Japanese billionaire to lease land for 99 years in China; it won't happen.
“Sustainable development is never a principle that plans for the well-being of children of Russians, at the expense of future children of Namibians. The lease agreement, forged or unforged, remains wrong and unpatriotic,” Ngurare said.