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Kessl: a New Jurisprudence for Land Reform in Namibia? I

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Kessl: a New Jurisprudence for Land Reform in Namibia? I KESSL A NEW JURISPRUDENCE FOR land REFORM IN NAMIBIA? Sidney L. Harring and Willem Odendaal Land, Environment and Development Project of the Legal Assistance Centre and Namibian Economic Policy Research Unit APRIL 2008 © Legal Assistance Centre and Namibian Economic Policy Research Unit, 2008 LAC 4 Körner Street, Windhoek PO Box 604, Windhoek, Namibia Tel: 061-223356 Fax: 061-234953 Email: [email protected] Website: www.lac.org.na NEPRU Cnr Louis Raymond and Grant Webster Streets, Olympia, Windhoek PO Box 40710, Ausspannplatz, Windhoek Tel.: 061-277500 Fax: 061-277501 Email: [email protected] Website: www.nepru.org.na Printed by John Meinert Printing (Pty) Ltd, Windhoek. ISBN 978-99945-61-27-8 Contents Acknowledgements ........................................................................................................................... ii Acronyms ............................................................................................................................................... ii 1. Introduction ..................................................................................................................... 1 2. The Legal Process of Land Reform in Namibia .......................... 2 3. The Framing of the Kessl Case ................................................................... 8 4. Article 16 and Land Expropriation ......................................................... 12 5. Article 18 on Administrative Justice ...................................................... 14 6. A New Jurisprudence of Land Reform in Namibia? ............... 21 A. The Test Case ................................................................................................................ 21 B. A New Jurisprudence of Land Reform ................................................................. 21 C. The Next Land Reform Cases in View of Kessl................................................ 23 D. Conclusion ...................................................................................................................... 27 Bibliography......................................................................................................................................... 28 Appendix: The Kessl Judgement (full official text) ................................................................. 31 Kessl: A New Jurisprudence for Land Reform in Namibia? i Acknowledgements The Legal Assistance Centre (LAC) thanks the Evangelischer Entwicklungsdienst (EED) and Humanistisch Instituut voor Ontwikkelingssamenwerking (HIVOS) for their financial support for the Land, Environment and Development (LEAD) Project over the years. The authors of this report, Sidney L. Harring, Professor of Law at the City University of the New York School of Law, and Willem Odendaal, Coordinator of the LEAD Project at the LAC in Windhoek, thank the following institutions and individuals for their contributions: z The Royal Embassy of Norway in Harare, Zimbabwe, which funded this publication through financial support to the Community Technology Development Trust (CTDT) in Zimbabwe and the Namibian Economic Policy Research Unit (NEPRU) in Windhoek. z Dr Charity Manyeruke, Regional Coordinator of the Land and Agrarian Reform Programme of the CTDT, and Klaus Schade, Acting Director of NEPRU, for helping to make funding available for this publication. z Perri Caplan, for assisting with the editing and layout of this publication. z The City University of the New York School of Law. z The Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund University, Sweden. Acronyms AALS Affirmative Action Loan Scheme ACLRA Agricultural (Commercial) Land Reform Act CBNRM Community Based Natural Resource Management (Programme) CFNEN Community Forestry in North-Eastern Namibia DED Deutscher Entwicklungsdienst (German Development Service) LAC Legal Assistance Centre LEAD Land, Environment and Development Project NAU Namibia Agricultural Union NEPRU Namibian Economic Policy Research Unit SWAPO South West Africa People’s Organisation WIMSA Working Group of Indigenous Minorities in Southern Africa WWF World Wildlife Fund ii Kessl: A New Jurisprudence for Land Reform in Namibia? 1. Introduction At present, following the failure of the “willing buyer, willing seller” experiment, Namibia’s ambitious land reform programme is politically and legally anchored in a promise of wide- spread land expropriation to end the apartheid-era creation of two systems of land tenure: one, communal lands for blacks, and the other, large commercial farms almost exclusively for whites.1 This policy escaped any form of judicial review from its inception in the first decade of Namibia’s Independence, celebrated in 1990, until the handing down of the judgements in the case of Gunther Kessl and the Ministry of Lands and Resettlement, and two essentially identical companion cases, in the High Court of Namibia on 6 March 2008.2 The Court treats the three cases as analytically identical, referring to them throughout as “Kessl”, and we have followed suit in this report. Kessl addresses many aspects of the Ministry’s land reform programme, and repeatedly upholds the legality of the principle of land expropriation, grounded in Article 16(2) of the Constitution of the Republic of Namibia, but it finds that the Ministry’s administration of the expropriation process has violated Namibian law on several grounds. While the final pages of the judgement set out very explicit requirements that the Ministry must fulfil to legalise the process, the judgement also raises difficulties with the ongoing land reform programme that will not be easy to remedy. The Court, uncharacteristic of Namibian courts, explicitly criticises the Ministry for mismanaging the expropriation process and thereby leaving the land reform programme in a state of disarray. After nearly 20 years of independence, with the former Minister of Lands and Resettlement and current President of Namibia, Hifekepunye Pohamba, directly involved in this debacle, this judgement undermines the Government’s credibility in terms of its ability to plan and manage its own land reform programme. At the same time, the detailed and well-reasoned judgement represents a victory for the rule of law in Namibia, in that it establishes the power and maturity of the Judiciary in legally structuring a complex land reform process with full respect for the constitutional rights of all Namibian citizens. This was a “test case” in every sense of the term, acknowledged as such by the Court in the first sentence of its opinion (para 1), and argued as such by both parties. This opinion charts the way to a new Namibian jurisprudence that can break the deadlock on land reform, moving the process forward with full commitment to the rule of law. The opinion is highly significant for the future of land reform in Namibia and Southern Africa generally. The full text of the opinion is appended to this report. 3 This report first sets the context of land reform in Namibia, then analyses the significance of the Kessl judgement, then presents an argument as to how this case sets the path towards a new jurisprudence of land reform in Namibia. 1 There is a voluminous body of literature on land reform in Namibia. SL Harring and W Odendaal, “One Day We Will All Be Equal”: A Socio-Legal Perspective on the Namibian Land Reform and Resettlement Process, LAC, 2002, cites much of this literature. 2 Gunter Kessl and Ministry of Lands and Resettlement, case numbers (P) A 27/2006 and 266/2006; Heimaterde CC and Ministry of Lands and Resettlement, case number (P) A 269/2005; and Martin Joseph Riedmaier and Ministry of Lands and Resettlement, case number (P) A 267/2005. 3 The opinion is as yet unreported, thus in this article we do not refer to page numbers in a published document, but only to paragraphs as numbered in an official copy provided to us by the Clerk of the High Court via the internet, reprinted verbatim and in full herein as an appendix. (We have changed the font and line spacing to accord with the layout of this report and to reduce the number of pages from the original 83.) Kessl: A New Jurisprudence for Land Reform in Namibia? 1 2. The Legal Process of Land Reform in Namibia Land reform was a well-defined goal of the ruling party, SWAPO, in its long struggle for liberation from colonial apartheid rule, and has been a major promise of the Government of Namibia since Independence in 1990.4 At Independence, about 4 000 white farmers owned about 6 000 farms which constituted just under half of the country’s arable land.5 An apartheid- era land law had blocked black access to these commercial farms, setting out a different land- holding law for blacks living in communal areas under communal landholding regimes – a form of government-structured customary law.6 The Namibian Constitution of 1990, in Article 16(1), recognises the right to property, but also, in 16(2), expressly permits the expropriation of land as a remedy for this apartheid-era racism and discrimination in the land law.7 A Land Reform Conference in 1991, by convening dozens of Namibian organisations, brought a broad- ranging input of popular will into the process.8 Based on that consultation, the Agricultural (Commercial) Land Reform Act (ACLRA) of 1995 set out a statutory land reform process.9 For the first 17 years (1990-2007), the Government, through what was then the Ministry of Lands, Resettlement and Rehabilitation (hereafter “the Ministry”),10 acquired 209 farms for land reform, abiding by the principle of “willing
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