What the Commission of Inquiry into Ancestral Land Rights and Restitution Claims Found

THE restitution of ancestral land rights in Namibia has since independence divided opinions.

Some argue it is a fitting process in dealing with colonial era land dispossessions, while others are concerned about the complexity of implementing this kind of restitution.

At independence, the Namibian government assumed the viewpoint of the latter group. Their position on ancestral land rights is captured in a resolution taken at the end of the 1991 national land conference, concluding that the restitution of ancestral land rights is not possible because of the historical complexities in establishing land occupancy by indigenous people at the time of Namibia’s colonialisation.

As a result, subsequent Namibian policy and law on land reform excluded the restitution of ancestral land rights.

Nevertheless, the public debate on the restitution of ancestral land rights remained alive among those mostly affected by historical land dispossessions, so much so that the topic was again brought to the table during the second land conference in 2018.

After the 2018 conference, president Hage Geingob established a commission of inquiry into claims of ancestral land rights and restitution in terms of the Commissions Act of 1947. The main purpose of the commission was to inquire into and report on the claims of ancestral land rights and restitution to groups and individuals.

The commission defines “ancestral land” as land that was occupied and utilised by the forebears of indigenous communities, and views “ancestral land losses” as the loss of ancestral land through colonial land dispossession or other forms of contested alienation in either pre- or post-colonial eras.

“Ancestral land rights” are linked to rights to land that was occupied and utilised by the forebears of indigenous communities, while “ancestral land restitution” involves restoring the rights to lost ancestral land.

The commission’s methodology included consultation with government stakeholders and other people familiar with the topic.

It also considered written submissions and conducted public hearings in all of Namibia’s 121 constituencies.

Through their testimonies, individuals and communities who claimed to have been affected by historical land dispossessions made suggestions regarding land restitution.

Some of these included the restoration in full or in part of areas claimed as ancestral land, compensation for the loss of ancestral land, the provision of alternative land where the restoration of land rights is not possible, the renaming of places, receiving benefits from businesses and natural resources on areas claimed as ancestral land, and receiving preferential treatment and recognition in the resettlement programme.

The commission also analysed the performance of the National Resettlement Programme and the Affirmative Action Loan Scheme, and considered the administration of the communal land-reform process and the problem of illegal fencing on communal land.

Testimonies presented to the commission expressed deep-seated dissatisfaction, frustration and disillusionment with all of these land-reform initiatives.

Some cited the shortcomings of these initiatives as contributing to the increasing demand for the restitution of lost ancestral land.

Some also bemoaned what they claimed to be inadequacies in the current resettlement policy and criteria –including the failure to address the difficulties faced by those most affected by colonial land losses, the slow pace of the current land reform programmes, the poor feedback on resettlement applications, and the low number of beneficiaries.

In addition, the transparency of the land-reform process was questioned, with claims that only specific ethnic groups have benefited from the resettlement programme.

While the commission focused mainly on the restitution of ancestral land as a result of historical land dispossessions under colonial rule, it also examined the loss of land as a result of ongoing illegal fencing in communal areas.

There were complaints that illegal fencing by powerful members of society takes place at the expense of local and often powerless inhabitants, as well as allegations that corrupt traditional authorities collude in this process.

In some cases, people who testified before the commission provided details of the amount of land lost to communities through illegal fencing, which has resulted in loss of communal grazing land and mahangu fields.

The commission observed that illegal fencing disputes threaten the loss of what community members regard as their ancestral land.

The commission also concluded that what communities are demanding as restitution fits into the broader concept of reparations under international and human rights law.

In light of these conclusions, the commission recommends that the Namibian parliament should enact an ancestral land rights claim and restitution law within the next two years, on condition that this process and its outcome must be consistent with constitutional, international and human rights law.