Get the policy right first

The Land Bill tabled at the end of last year was seriously flawed. A fundamental review of land policy based on national dialogue is necessary before any reform legislation is put forward.

It is a truism that good laws depend on good policy. As recent public debates around the former Deputy Minister of Land Reform suggest, the nation has not even agreed on what the land question in Namibia is. This has to be the starting point of any policy discussion. The same debates and public spats have also shown that colonial land dispossession, primarily of communities that do not practice cultivation as a main agricultural pursuit, is part and parcel of a definition of the national land question.

A peculiar feature about passing land legislation in Namibia is that this has happened either without a comprehensive land policy (as was the case with the Agricultural (Commercial) Land Reform Act of 1995) or without a thorough review of the land reform programme since Independence (as was the case with the Land Bill of 2016).

The National Land Policy of 1997 is no longer likely to address the complex set of land-related issues that either existed already or have developed over the years as a result of government and market interventions. It sets out general policy principles for a more equitable distribution land and an improved land administration and management system, but does not provide guidance on a number of important issues both in the freehold and non-freehold sectors that require policy and legal direction.

It is conceivable that the absence of clear policy guidelines is the result of government finding it difficult to address a number of controversial issues or to incorporate proposals that would benefit land rights holders but may have unforeseeable impacts on rural politics. Possible examples include:

• The restitution of ancestral land rights: the complexity of this issue defies easy answers. The challenge is to reconcile the legitimate demands by historically-dispossessed communities to some form of redress with the objectives of national reconciliation, which strives to achieve a unified Namibian nation.
• The necessity to create a land market in the small-scale farming sector. By not providing a political and legal framework for the development of land markets and the consequent ability to trade land formally owned by the state, the state retains control over its land, much like a commercial farmer. If this control is placed under threat, the continued use of land to entrench and further develop political patronage could be at risk.
• The hesitation to provide clear guidelines on how to deal with enclosures (fencing) of communal land and the related issue of protecting customary land rights of communities to commonages may be related to a fear of upsetting the balance of political power in the rural areas, and in particularly the mixed farming areas of north-central and north-eastern Namibia, where traditional leaders are still strong.

Another possible reason for the absence of a comprehensive policy on land is that the main constituency of the ruling party and a majority of the Namibian population have never been dispossessed, despite political claims to the contrary. Given the relatively low number of dispossessed in Namibia and their low level of organisation, the balance of political power is stacked against the dispossessed minorities of the country, implying that the ruling party does not have to fear any real negative political consequences for not coming up with a comprehensive land policy.
As has been observed about the land reform process in South Africa, the lack of a clear policy framework laying down the objectives of transformation and inclusive growth allows land reform to continue along its present path – of slow progress, unsustainable outcomes and elite capture.

* This blog is based on extracts from the IPPR briefing paper, The 2016 Land Bill: Making Law Without Policy Consultation or Review by Wolfgang Werner of the Department of Land and Property Sciences, Namibia University of Science and Technology. The full paper can be downloaded here.