The Ovahimba, the Proposed Epupa Dam, the Independent Namibian State, and Law and Development in Africa
Total Page：16
File Type：pdf, Size：1020Kb
City University of New York (CUNY) CUNY Academic Works Publications and Research CUNY School of Law 2001 "God Gave Us This Land:" The OvaHimba, the Proposed Epupa Dam, the Independent Namibian State, and Law and Development in Africa Sidney Harring CUNY School of Law How does access to this work benefit ou?y Let us know! More information about this work at: https://academicworks.cuny.edu/cl_pubs/260 Discover additional works at: https://academicworks.cuny.edu This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] "God Gave Us This Land": the OvaHimba, the Proposed Epupa Dam, the Independent Namibian State, and Law and Development in Africa SIDNEY L. HARRING* CONTENTS I. Introduction ....................................... 36 II. History of the OvaHimba in Angola and Namibia ............... 39 A. The Himba ..................................... 39 B. The Emergence of the Himba as a Distinct People ........... 40 C. The German Arrival in South West Africa ................. 41 D. Pastoral Culture and Property Rights ...................... 42 E. Grazing Rights ...................................... 43 1. Background .................................... 43 2. General Communal System of Grazing ................. 44 3. The Himba and Early Colonial Administrators ............ 46 4. The Odendall Commission and South African Political Divisions ...................................... 47 G. The Modem Himba Dichotomy: Traditional Life Versus History of Accommodation to Different Colonial Governments ........ 48 III. The Epupa Dam, the Kunene River, and Namibian Development ..... 50 A. Modem Dam Building ................................ 50 B. Plans for Damming the Kunene River ..................... 50 1. Water and Namibian Development .................... 50 2. German Colonial Planning .......................... 51 3. South African Colonial Authorities' Development of the River ......................................... 52 a. Use of Falls and Rivers as Power Sources .......... 52 b. Construction of Dams on the Kunene River ......... 52 4. Proposed Epupa Dam ............................. 54 a. South African Plans for Construction ............... 54 b. Transfer of Plans to Namibia ..................... 54 * Anna Dean Carlson Visiting Professor of Sociology, School of Applied Social Sciences, Visiting Professor of Law, West Virginia University. Professor of Law, City University of New York Law School. This Article began with research done as a Fulbright Professor, Faculty of Law, University of Namibia, 1995. 1 wish to thank Founding Dean Walter Kamba for creating a climate fostering both academic freedom and excellence, and my colleagues at the University of Namibia. Others in Namibia have assisted this work over five years. The International Rivers Network, especially Lori Pottinger, Director of its Southern Africa Campaigns, also assisted my work and provided access to their extensive archives on dam building and indigenous peoples. The Research Foundation of the City University of New York and the College of Law, West Virginia University provided funding for some of this research. THE GEORGETOWN INT'L ENVTL. LAW REVIEW [Vol. 14:35 5. Preparations for Gaining Foreign Funding: the Feasibility Study ......................................... 55 6. Variations of the Dam Scheme ...................... 58 a. Engineering Concerns .......................... 58 b. Economic Concerns ........................... 59 c. Additional Studies ............................ 60 IV. "There Will Be No Dam Here": the Himba Confront the Dam Builders: A Discourse on Namibian Development ................. 60 A. The Himba Leader ................................... 61 B. The "Public" M eeting............................... 61 C. Himba Opposition to the Dam ........................... 63 D. The Political History of Modem Namibia ................. 64 E. Models of Development ............................... 67 F. Ownership of the Land ................................ 68 G. Additional Legal Issues .... .......................... 68 H. The Namibian Response ............................... 69 I. Presentation of the Epupa Feasibility Study .................. 70 J. The Namibian Government Versus the Himba ............... 72 V. Himba Land Rights at Epupa Falls ........................... 74 A. Value of the Land ................................... 74 B. Indigenous Land Rights ............................... 75 1. Transition to the Recognition of Indigenous Land Rights ... 75 2. Failure to Recognize "Aboriginal Title" ................ 77 C. Extinguishing the Himba Land Rights ..................... 78 1. German Colonialism in Kaokoland: Did Germany Extinguish Himba Land Rights? . .. 78 2. British Occupation of Namibia and the League of Nations Mandate, 1915-1921 .............................. 83 3. South African Law in Namibia: Diminishing "Native" Land Rights by Statute ................................. 85 4. The Namibian Government's "Ownership" of the Communal Lands: South Africa's "Land Title" Inherited ........... 91 VI. The International Customary Law of Aboriginal Title in Namibia .... 94 VII. Evolving Customary International Law: The Rights of Indigenous Peoples Displaced by the Construction of Large Dams ............. 97 V III. Conclusion ........................................ 100 I. INTRODUCTION "We will gather there and they will have to build the dam on top of us."1 1. Chrispin Inambao, Epupa Gets Green Light, Nujoma Slams 'SinisterManipulators', NAMIBIAN Aug. 19, 1997, at 1 (quoting Chief Hikuminue Kapika in a BBC interview). 2001] THE OVAHIMBA AND THE EPUPA DAM "Change and trade will follow the overheadpower lines from the power plants along the Kunene, new possibilities will open up for 2agriculture and stock keeping, and even humans and theirpolities will adapt.", In a world with no shortage of sharply focused legal disputes that challenge the capacity of law to achieve both justice and meaningful social change, one of the more graphic disputes is the struggle of the OvaHimba (hereinafter "Himba") 3, a pastoral tribe of about 25,000, against the proposed Epupa Dam on the Kunene River. The river forms the border between Namibia and Angola in a remote comer of Africa without access to either electricity or gas stations.4 This US$ 600 million dam (before cost overruns), at almost 600 feet high, the highest in Africa5, would hold a flooded impoundment6 of up to 380 square kilometers, forty to sixty miles long. It would permanently alter a unique desert ecosystem, flood the spectacular Epupa Falls, and force the relocation of many of the Himba, disrupting their traditional way of life.7 Thirty or forty years ago, this might have been a familiar story of development at the expense of indigenous peoples, but the twenty-first century world is a different place. While the Himbas' legal rights were ignored as recently as 1995, those rights now have a more distinct stature because of the newly-accepted "discourse of development," and have emerged as an issue potentially either 2. NEW NoTEs ON KAoKo: THE NORTHERN KUNENE REGION 240 (John T. Friedman et al. eds., 2000) (quoting H.W. Stengel, SWAVEK water engineer, 1966) (hereinafter NEW NOTES ON KAOKO). 3. The proper term is "ovaHimba" which, in the Herero language, means "Himba people." Outside of the Hereto language, the people are ordinarily referred to simply as "Himba," a usage followed here. 4. See generally John T. Friedman et al., Mapping the Epupa Debate: Discourse and Representation in a Namibian Development Project, in THE NORTHERN KUNENE REGION (2000); Carol Ezzell, The Himba and the Dam, Sci. Am. June 2001, available at http://www.sciam.com/2001/0601issue/0601ezzell.html#author (last visited Aug. 10, 2001). 5. The exact height of the proposed Epupa Dam depends upon which location is the final site: the Baynes site would require a higher dam (200 meters) than the Epupa site (163 meters). By way of comparison, the Hoover Dam, on the Colorado River, is just over 700 feet high. In Africa, the Aswan Dam, damming the Nile River in Egypt, is I 11 meters high; the Cahora Bassa Dam, on the Zambezi River in Mozambique is 171 meters high; downstream from the Kariba Dam, 128 meters high. Lower Cunene Hydropower Scheme Feasibility Study, Draft Feasibility Report, v. 1, chapter 5.1.2 (on file with author) [hereinafter Draft Feasibility Report]. 6. In the business of dam building, as in law, language is everything. Dam builders prefer to call the water reservoir behind a dam a "lake," because a "lake" offers images of beauty, recreational opportunities, and enhanced real estate values, all of which offset the "costs" of flooding vast areas of land. This language is used to refer to the "lake" at Epupa Dam as well. But the "impoundment" behind the Epupa dam would be a vast mud flat up to sixty miles long and five miles wide much of the year as the water level drops hundreds of feet during the dry season. Then, in optimum conditions, the rainy season from November to April in the Angola highlands would cause the reservoir to fill sufficiently, so that it could hold enough water to enable the dam to make power during the May through October dry season. Thus, it might be hoped that the reservoir might be full for a few months after April, providing for recreational opportunities. Resorts, built on the high water line, would be two to four miles away from the water by November and across a broad and uninhabitable mud flat. In drought years, which regularly occur, the reservoir