‘Property right clause should not have been fundamental right’
By Magreth Nunuhe
Windhoek – The universal right to property clause should not have been made a fundamental right in the Namibian Constitution that was adopted at independence in 1990 due to the imbalances and unequal property distribution that existed during colonial times, said former Prime Minister Nahas Angula.
“It was never supposed to be that way, because property (distribution) was always unequal, it was not supposed to be a fundamental right. You have to work for it (property) yourself. The property relations were already unequal. But us, who wrote the Constitution, legalised it,” said the former premier during a book launch on Tuesday night in Windhoek.
Chapter 3, Article 16 (i) of the Namibian Constitution guarantees that, “All persons shall have the right in any part of Namibia to acquire, own and dispose of all forms of immovable and movable property individually or in association with others and to bequeath their property to their heirs or legatees: provided that Parliament may by legislation prohibit or regulate as it deems expedient the right to acquire property by persons who are not Namibian citizens.”
This right to property is limited in Article 16(2) by the right granted to the State to expropriate private property in the public interest subject to the payment of compensation. Angula argued that when the Group of Five or the Western Contact Group (WCG), comprising Canada, France, Germany, the United Kingdom and the United States started negotiating to resolve the Namibian question, the Germans joined with one purpose “because they had a special interest in Namibia to protect the interests of German settlers in Namibia”.
Under successive colonial governments in Namibia, starting with the German regime from 1884 to 1915 and the apartheid regime that lasted until 1990, only whites could hold land title, therefore only whites had a legal right to land.
Imperial Germany declared Namibian territory (former South West Africa) as a German protectorate in 1884 and as a Crown Colony in 1890, leading to the development of property rights, including the Imperial Ordinance of 1905 which legitimised the confiscation of indigenous land by the governor.
The South African apartheid administration used a similar pattern once it occupied Namibia.
The Transvaal Crown Land Disposal Ordinance of 1903 became applicable to South-West Africa (Namibia) by virtue of the Crown Land Disposal Proclamation 13 of 1920.
Land belonging to blacks was confiscated in the most violent ways and given to white settlers for a penny and a dime.
At independence, whites retained the pre-existing land titles and today, these prime fertile lands are the genesis of the imbalances in land ownership in Namibia, with almost all the commercially viable farming land owned by whites.
Angula said that the central pillar of the special relationship policy between Germany and Namibia was actually the constitutional principles that guided the writing of the Namibian Constitution to the point that the property rights became a fundamental right.
“I was part of the Constitution writing, but I think I was sleeping on the job,” he said sternly.
The former PM charged that it was only recently with the protests about restorative justice that the German special initiative policy changed direction and became an initiative for everybody. Angula described the relationship that existed between German settlers and Namibians at the time as a relationship between “a vulture and a victim”, “a robber and a victim or a predator and a prey”.
He said when Dr Heinrich Goering landed in Namibia in the late 1800s as a representative of the German Kaiser Wilhelm, he had two broad objectives – to secure space for German colonial settlers, and to secure free cheap labour for German settlers.
Angula added that Goering encouraged German settlers to indulge in unfair trade, so that Namibians could pay back their debt through land.
“Their land was encroached upon. To secure cheap labour is by creating a pauper class – you can only do that when you deprive them of their means of living. Dispossession and pauperisation of the population – you can imagine that it was a prescription for conflict,” explained Angula.
A senior lecturer in the Faculty of Law at the University of Namibia, Dr Samuel K. Amoo published in 2014, a much needed book on property law in Namibia titled Property Law in Namibia. At the independence, there were about 6292 farms in Namibia. Out of these, 6123 farms were white-owned, and covered 95 percent of the surface area of the commercial districts (34.4 million hectares).
Amoo observed that: “Within this ownership category, the overwhelming majority of farms belong to individual white farmers, including non‐Namibians. To be more specific, a total area of 2.7 million hectares (382 farms) belongs to foreign absentee farmers, that is to say, 0.9 million hectares belonging to citizens from Austria, France, Italy and Switzerland, while the bulk of 1.7 million hectares is owned by South African residents.
“Similarly, there are individual Namibian farmers with more than two large farms, as against thousands of their landless fellow countrymen who live in squalid poverty.”
In his novel, The Weeping Graves of Our People, that was launched on Tuesday, local academic Dr Rukee Tjingaete reflects on Namibia’s historic relationship with Germany,
Tjingaete, the head of research at the International University of Management, also highlights the issue of dispossession of property and how that affected communities that were direct victims of German genocidal war.
“I discovered that these relationships and action were not easy to deconstruct, especially in the context of the present dialogue (between Germany and Namibia on genocide and reparations)”, he said.
Also speaking at the launch, Dr Zed Ngavirue, special envoy to the on-going negotiations between Germany and Namibia on the issue of reparation, said that given that the Namibian Constitution has barred the whole idea of getting the land back, “we need to get to the depth of the issue when talking of restorative justice and reparation. It is a painful issue for which we need to get them to a point of understanding the depth of all this.”
He said that Germany has always felt that giving a form of aid was enough.
“You get the feeling that they did agree that genocide has been committed and something needs to be done, but they really need to understand the depth of it. Talking to my counterpart, I could see that he was given parameters within which to operate.
Now that we have scratched the wound, we have to go to the depth of it. We can’t talk of healing the wound with the measures they are putting on the table at the moment.”