Communal land in Namibia: a free for all Customary and legislative aspects of land registration and management on communal land in Namibia John Mendelsohn (RAISON – Research & Information Services of Namibia) December 2008 Report prepared for the Ministry of Land & Resettlement and the Rural Poverty Reduction Programme of the European Union Contents Summary_________________________________________________________3 Abbreviations and definitions_________________________________________5 Acknowledgements_________________________________________________5 Introduction_______________________________________________________6 Methods__________________________________________________________7 Functioning and structure of traditional authorities ________________________9 Recommendations___________________________________________14 Customary land registration _________________________________________14 Misunderstandings, confusions and objections_____________________15 Focus on higher levels of traditional authority ____________________17 Other aspects_______________________________________________18 Recommendations___________________________________________19 The management of communal land___________________________________22 Access to land ______________________________________________22 Inheritance_________________________________________________23 Commonages_______________________________________________25 The capture of land values by the elite ___________________________26 Recommendations___________________________________________29 APPENDICES 1. Caprivi____________________________________________________33 2. Damara ___________________________________________________40 3. Herero ____________________________________________________47 4. Kavango __________________________________________________56 5. Nama_____________________________________________________65 6. Owambo __________________________________________________74 7. San_______________________________________________________84 8. Tswana ___________________________________________________88 9. Dates and locations of meetings ________________________________92 10. Literature reviewed __________________________________________93 11. Further suggestions on the management of commonage pastures ______95 12. Further suggestions on the ownership of commonages ______________96 Communal land registration and management in Namibia 2 SUMMARY Senior members of the 46 recognized traditional authorities in Namibia were consulted to gather information on how communal land is managed and on the registration of customary land rights. The following major points emerged from the study. The traditional authorities (TAs) all have similar hierarchies: from local (usually village) headmen, to councillors or senior headmen and then to chiefs. There is, however, substantial variation in the sizes and histories of the TAs. Some have tens of thousands of households, while others have fewer than a hundred families under their jurisdiction. Several TAs do not have communal land, their communities being scattered in towns and on the land of other authorities. Most TAs in northern Namibia have existed for hundreds of years, have clear boundaries and well-established customary laws. By contrast, most recently formed TAs suffer from quarrels over boundaries and power struggles, and do not have customary statutes. With respect to the management of land, TAs are much weaker than is generally assumed. And they are further being weakened by the strengthening role of central and regional government, the creation of new local management institutions, the loss of constituents and land to urban areas, and the increasing numbers of wealthy, educated and influential people who have little regard for customary authority. The registration of customary land rights (CLR) for residential and farmland began in 2003 as a result of the Communal Land Reform Act of 2002 and Regulation No. 37 of 2003. Most people appear well informed of the need to register their land rights, but considerable confusion and misunderstandings were encountered, especially with regard to the 20-hectare limit on each property, the type and definition of farmland that may be registered, the size of a hectare, and the number of plots that can be registered as one property. Political affiliations, border disputes and encroachments by one traditional community onto land held by another community have led ten TAs to object to CLR. A variety of technical issues and loopholes were used to justify their objections, for example the payment of application fees for CLR amounts to people having to buy their land, that communal land will now be marketed, that grabbing of unregistered land will ensue, and that freedoms to occupy and clear new land will be curtailed. The lack of clear information and limited ability of the MLR to process CLR applications has meant that progress in registering land rights has been very slow: of some 70,000 applications submitted since 2003 for CLR, only about 4,000 have been approved. There is an obvious need for the MLR to accelerate its work on CLR, and to issue clear guidance to dispel the many misunderstandings and potential for grievances that have nothing to do with land registration. Other recommendations include the importance of using lower, local levels of traditional authority to check and endorse applications for customary land rights, and to find ways of handling the land rights of people living in national parks and places which do not have recognized TAs. Communal land registration and management in Namibia 3 With few exceptions, TAs only involve themselves in land management by controlling applications for people to reside on communal land. The ways in which these applications are assessed is governed largely by the relatedness and familiarity of the applicant and the need to avoid future disputes. TAs are therefore mainly gatekeepers and peacekeepers on communal land. Only Damara and Nama TAs consider the availability of water and grazing before allowing newcomers customary residential and farming rights, and only two San TAs place limits on the number of livestock that residents may keep. Most property on communal land is inherited by the spouse and offspring of the deceased. However, the fate of an estate is decided on the basis of three considerations: (a) land and a husband’s assets belong, to a greater or lesser degree, to his relatives in the village where he was born and spent his married life; (b) the future of the widow, particularly in relation to her prospects of remarrying, her social acceptance and fitness to manage her home and farming activities; and (c) the attitudes and customs of the deceased husband’s relatives. The government symbolically owns all communal land of which TAs are symbolic custodians. There is also good agreement between the requirements of CLR (as stipulated by government legislation) and customary controls over access (as exercised by traditional authorities) for residential and small farm (crop) land. But neither government legislation nor traditional law has much control over commonages. The resulting vacuum has allowed influential people with substantial non-farming incomes to acquire and privatise large areas of commonage, and to over-exploit grazing in commonages shared with permanent residents who depend largely on stock farming for their livelihoods. Large areas of communal land thus suffer from the ‘tragedy of the commons’ where the rich get richer, the poor become poorer, and environmental degradation intensifies. Considerable changes are needed to limit the capturing of resources and land values by the elite, and to give local residents both security of tenure and security over resources. It is proposed that the ownership of commonages be vested and registered in local management institutions in which local residents have both control and shares. Good models founded on these principles are provided by conservancies, community forests and water point associations. It is also recommended that tenure systems be developed to give long-term leaseholds to all residents on communal land. The leaseholds would provide people with the same economic opportunities and incentives for investment and savings now enjoyed by owners of freehold urban properties and farms. Communal land registration and management in Namibia 4 Abbreviations and definitions CLR = customary land registration; the process of registering residential and farmland in communal areas, as prescribed by the Communal Land Reform Act of 2002 and Regulation No. 37 (Regulations made in terms of the Communal Land Reform Act) issued on 24 February 2003. In the absence of special motivation from the applicant and the permission of the Minister of Lands & Resettlement, properties may not exceed 20 hectares. The endorsement of a recognized traditional authority is required to confirm that the applicant has a customary right to the land. Other communal land may be registered as leaseholds or remain unregistered commonage to which local residents have rights of access and use. CLB = communal land board. Each region has a communal land board which, among other things, assesses and approves applications for CLR covering properties less than 20 hectares. Members of the CLB serve in a voluntary capacity and are drawn from various sectors. CLBs operate under provisions of the Communal Land Reform Act of 2002 and Regulation No. 37 (Regulations made in terms of the Communal Land Reform Act) issued on 24 February 2003. MLR =