This publication provides an overview of status and trends regarding the constitutional, legislative and administrative protection of
the rights of indigenous peoples in South Africa.
This report provides the results of a research project by the International Labour Organization and the African Commission’s
Working Group on Indigenous Communities/Populations in Africa with the Centre for Human Rights, University of Pretoria, acting
as implementing institution. The project examines the extent to which the legal framework of 24 selected African countries impacts
on and protects the rights of indigenous peoples.
This report was researched and written by Andrew Chigovera (with comments by Clement Daniel incorporated),.
For an electronic copy of the other 23 country studies and the overview report of the study,
see www.chr.up.ac.za/indigenous
Published with the support of:
EUROPEAN
COMMISSION
Country Report of the Research Project by
the International Labour Organization and the African Commission on Human and Peoples’ Rights on
the constitutional and legislative protection of
the rights of indigenous peoples:
Namibia
African Commission on
Human and Peoples’ Rights
International Labour
Organization
EXAMINING CONSTITUTIONAL, LEGISLATIVE AND ADMINISTRATIVE
PROVISIONS CONCERNING INDIGENOUS PEOPLES IN NAMIBIA
Table of contents
Pages
Part 1: Introduction to indigenous peoples, the country and its legal system
3
1
Indigenous peoples in the country – basic situation overview
3
1.1
Indigenous peoples, criteria for identification, demographic details,
main economic sources of livelihood and cultural life
3
1.1.1
Indigenous peoples, criteria for identification
1.1.2
Demographic details
4
1.1.3
Main economic sources of livelihood and cultural life
4
1. 2
Background to the country
5
1.2.1
Pre-colonial period
5
1.2.2
Colonial period
5
1.2.3
Post-colonial period
6
1.2.4
Geography
7
1.2.5
Population
7
1.2.6
Demographic composition of the population
8
1.2.7
Administrative divisions
9
1.2.8
Structure of government
9
1.2.9
Role of media and civil society
11
1.3
Background to the legal system
13
1
13
1.3.1
The legal system
1.3.2
Sources of law
13
1.3.3
Court structure
14
1.3.4
International law
14
1.3.5
Status of internal law
15
1.3.6
Ratification of UN, ILLO, and regional instruments
16
1.3.7
Namibia’s obligations under international human rights instruments
18
1.3.8
National and other human rights institutions
19
1
1
1.4.
Main human rights concerns of indigenous peoples
20
1.4.1
Discrimination
21
1.4.2
Rights to land
21
1.4.3
Access to justice
21
1.4.4
Access to health
22
Part II: Legal protection of indigenous people in Namibia
22
2.1
Recognition and identification
22
2.2
Non-discrimination
25
2.3
Self-determination
26
2.4
Participation and consultation
31
2.5
Access to justice
34
2.6
Culture and language rights
36
2.7
Education
42
2.8
Land, natural resources and environment
46
2.9
Socio-economic rights (housing, health, social welfare, intellectual property,
traditional economy, employment and occupation)
57
2.10
Gender equality
65
2.11
Indigenous children
69
2.12
Indigenous people in border areas
72
Part III: Conclusion and recommendations
74
3.1
Conclusion
75
3.2
Recommendations
75
Part IV: Bibliography
2
Part 1: Introduction to indigenous peoples, the country and its legal system
1.1
Indigenous peoples in the country – basic situation overview
1.1.1 Indigenous peoples and the criteria for their identification, demographic details, main
economic sources of livelihood and cultural life
The use of the term ’indigenous peoples’ in reference to any particular group of people has remained
problematic in Africa. Most African governments maintain that all their black citizens are indigenous.
The controversy has been examined by the African Commission on Human and Peoples’ Rights (the
African Commission). 1
Recognising concerns over the use of the term ’indigenous peoples’, and taking its lead from
international legal developments, the African Commission included the following as criteria for
indigenousness: self-identification as being indigenous by those groups of people that are in
structurally-subordinate position to the dominate groups and the state, leading to their marginalisation
and discrimination. ’Indigenous’ is a term through which these groups, among the variety of ethnic
groups within a state, identify themselves as experiencing particular forms of systematic
discrimination, subordination and marginalisation of their culture and way of life and mode of
production. The use of the term assists them in calling attention to their situation. In the context of
Namibia, the San and the Himba have generally been regarded as meeting these criteria, and therefore
as falling within the category of indigenous peoples.
In the recent past, especially following media reports in mid-2007, however, other small marginalised
groups, wholly excluded from the mainstream economy, have come to the fore. These groups are the
Ovatue, Ovatjumba and the Ovazemba.
1.1.2
Demographic details
While indigenous peoples sometimes constitute minority groups within the society in which they live,
the term ‘indigenous’ is not necessarily synonymous with the term ’minority’. To qualify as
indigenous, in addition to self-identification, the African Commission suggests that the following
criteria should be complied with:2

It is socially, culturally and economically distinctive.

It has a culture and ways of life which differ from the dominant society and that its culture is
under threat.

It has a special attachment to its land or territory – access and rights to the traditional lands
and natural resources being a key characteristic for the survival of most indigenous peoples.

It suffers from discrimination as it is regarded as less-developed or advanced by the other
more dominant groups.

It is subject to domination and exploitation within national and political structures that are
commonly designed to reflect the interest and activities of the national majority.

In most instances, members of the group live in inaccessible regions, often geographically
isolated and are subject to various forms of marginalisation, both politically and socially.
National criteria for the identification of indigenous peoples are discussed in Part II of this Report.
1.1.3
Main economic sources of livelihood and cultural life
Both the San and the Himba satisfy all the above criteria. The other marginalised groups referred to
above (Ovatue, Ovatjimba and Ovazemba) may also satisfy these criteria.
1
2
See Report of the African Commission’s Working Group of Experts on Indigenous Population/Communities 13, 86.
Report of the African Commission’s Working Group of Experts on Indigenous Population/Communities (2005) 89.
3
The San and the Himba both have a special attachment to their land. Access to and rights to traditional
lands and natural resources are critical to their survival. For the San, the primary source of survival is
land on which to hunt for wildlife and veld fruits. The Himba, on the other hand, need access to
traditional lands for grazing their cattle. Meat and milk from their cattle are their main sources of
livelihood. Each of these groups has cultures and ways of life that differ from the dominant groups in
Namibia. They are separately treated as ’less developed’ and suffer discrimination from larger groups.
The San, in particular, are subject to severe exploitation and domination by all large groups of people
in Namibia. They occupy the remotest parts of the country, have been extensively exploited through
land dispossession and made to provide cheap labour. They have no representation at local, regional
and national levels in the Namibian government, save for the recognition of two chiefs in the
Tsumkwe District. The Ovahimba have remained isolated from national development in their arid
Kunene region with little or no participation in national affairs or development programmes.
The Ovatue, Ovatjimba and Ovazemba, who are said to be small sub-groups of the Herero
communities, live in remote inaccessible and isolated areas in the mountains in the Kunene region of
Namibia.3 They have a traditional lifestyle detached from the way of life that is observed by the rest
of the Namibian population. Some of these communities can only be reached by helicopter. They live
outside the mainstream of life due to the fact that the areas they inhabit are out of reach of the
country’s mainstream programmes. As the result, they hardly know the benefits of the country’s
independence or their basic rights. Separated from the rest of the country by mountains, the only life
they engage in is collecting wild berries and roots for survival. These communities, having inhabited
the Kunene Mountains for centuries, are yet to become aware that they are part of a population that
may benefit from the natural and material resources of the country. The three groups are discriminated
against by larger groups down the mountains. One Omutue man reported during a meeting in Opuwo,
in the Kunene region, that even the name Omutua is derogatory and synonymous with ‘outcast’, ‘poor
person’ or someone with inferior standards. The word Ovatjimba is also said to have a derogatory
meaning.
The plight of these groups came to light following the drought in 2007, when they were forced by
inhospitable conditions to come down from the mountains to the region’s provincial capital, Opuwo.
Media reports of their deplorable conditions resulted in the government in August 2007 sending a
fact-finding mission to the area, headed by Dr Ms Liberthina Amathila, Deputy Prime Minister and
Ms Angelika Mukarukua, Deputy Minister of Gender Affairs and Child Welfare.
1.2
1.2.1
Background to the country
Pre-colonial period
The San are considered to be the first inhabitants of the region comprising present-day Namibia,
South Africa and Botswana.4 Eventually, many different Bantu peoples, including the Ovambos and
Hereros, settled in the territory that today is Namibia. These first Bantu groups settled in the east of
the country, pushing the San from the areas they had previously occupied.5 The San population was at
that stage comprised exclusively of hunter-gatherers, but recent anthropological research show that
different San groups also engaged in livestock herding and gardening as a means of survival.
1.2.2
Colonial period
In line with agreements at the Berlin Conference, Germany annexed Namibia (then South West
Africa) in 1885. Germany never successfully imposed its hegemony upon the colony, in particular
upon Ovambo territories in the north of the territory, bordering Angola. Over the central and southern
parts of the country, occupied by the Herero and the Nama, Germany managed to substantially
establish its authority.
3
Republic of Namibia Government Bulletin (October 2007) 3-4.
Thekla Hohmann (ed) 2.
History of Namibia from Wikipedia, the free encyclopedia, Thekla Hohmann (ed), San and the State – Contesting Land,
Development, Identity and Representation (2003) 2.
4
5
4
Germany’s tenure in Namibia was short-lived. In 1917, while the colony was still in its infancy, its
forces were defeated by the military of the Union of South Africa.
The surrender of Germany marked the beginning of Namibia’s domination by South Africa. With the
adoption of the Treaty of Versailles in 1919, the then German South West Africa (Namibia) was
declared a mandate of the League of Nations under the administration of South Africa. German was
replaced as an official language, but most Germans remained in the country. In 1951, South Africa
extended its oppressive apartheid policy to South West Africa. With the implementation of the
Odendaal Plan, homelands were established between 1964 and 1966 and black people were forcefully
resettled. The land occupied by the Himba remained untouched, mainly due to the harsh climate. The
San were given an area West of the Tsumkwe district as a homeland, an area now constituting the
Nyae Nyae, Na // Jaqna and other conservancies.
Despite the United Nations withdrawing its mandate over Namibia in 1966, South Africa refused to
hand over its control of the country. South Africa’s extension of its apartheid policy to Namibia, the
annexing of Namibia as a province of South Africa, and its refusal to hand over control of the country
to the United Nations led to a protracted armed liberation struggle against South Africa by the SouthWest African People’s Organisation (SWAPO), under the leadership of Sam Nujoma. No liberation
war credentials are acknowledged in respect of the San people other than a reference to their being
used by the South African military as scouts. In respect of the Ovatue and the Ovatjimba, President
Pohamba acknowledged as reported in the Government Information Bulletin of October 2007 that
they participated in SWAPO’s struggle for independence.
1.2.3
Post-colonial period
Following 23 years of armed struggle, Namibia finally became independent in 1990. South Africa’s
policies in Namibia were explicitly racist, reserving more than 50 per cent of prime arable land for
between 3 000 and 4 000 white farmers.6 As part of its apartheid policy and divide-and-rule tactics,
the South African administration had established ’homelands’ for the different ‘Native’ societies on
the basis of tribal groupings. The largest ethnic groups, namely, the Ovambo, Kavango, Damara and
Herero, received large homelands where they could continue their customary way of life. The San
were dispersed widely throughout the homelands of the larger groups. Bushmanland, intended as a
’homeland’ and established at the edge at the Kalahari, was occupied only by a few hundred
Jul/’hoansi, a San community occupying Tsumkwe West. Few of Namibia’s San ever had any ties to
Bushmanland. This was the situation prevailing at independence. Independence came with a liberal
constitution as the country’s basic law, raising expectations that the injustice of the apartheid past
would be redressed.
1.2.4
Geography
With an area of approximately 824 000 square kilometres, Namibia is more than triple the size of
Great Britain. Bordering countries are Angola to the north, Botswana to the East, South Africa to the
south and Zambia to the north-east. The west of the country borders the Atlantic Ocean. The north-tosouth length of the country is approximately 1 500 kilometres, while the east-to-west width is around
600 kilometres in the south and 1 100 kilometres in the north.
1.2.5
Population
Namibia has a small population of only 2 044 147, of which 87 per cent is made up of black people, 6
per cent white, and 6.4 per cent of mixed-race groups.7
6
J Kies Van Donge et al (2005) ISS/UNDP ‘Land, Poverty and Public Action’; research, project rural development, environment
and population studies group; SL Harring ‘Indigenous Land Rights and Land Reform in Namibia’ in R Hitchcock and D Vinding (eds)
Indigenous People’s Rights in Southern Africa (2004) 63.
7
CIA - The World Factbook – Namibia. https://www,cia.gov/cia/publications/factbook/geos/wa.html.
5
Statistics show that black people have a low literacy rate and a short life expectancy. Compared to the
mean national average of 61 years, women have a shorter life expectancy. (According to a recent
government report, Namibia has made major strides in reducing illiteracy since independence.
According to the Deputy Minister of Education, Ms Becky Ndjoze-Ojo, illiteracy has dropped from
65 per cent at independence to 10 per cent in 2008.) Those in this 10 per cent are mostly marginalised
groups such as the Himba, Ovatue, Ovazemba and San (New Era newspaper – 06 October 2008). The
San are said to have the lowest literacy rate, estimated at around 23 per cent, well below the national
mean of 66 per cent.8 This state of affairs is of course to a great extent explained by the San’s low
school enrolment rate, which stands at 21 per cent, against the mean national average of 83 per cent.9
The San also have amongst the worst access to health services in the country. Around 86 per cent of
them live more than an hour away from health facilities, which are expensive to get to and are
generally badly equipped.10
Namibia ranks among the countries with the deepest social divides.11 The San are the poorest people
in Namibia, with a Human Dvelopment Index (HDI) of only 0.233, whereas the German language
group has the highest HDI, at 0,902. The San’s added per capita income is put at N$1 315, followed
by the Kavangos with N$1 652. Little has been written about the Ovatue, Ovatjimba and Ovazembe.
The Himba own herds of cattle and goats which provide them with meat and milk. They are also
involved in limited agricultural activities.12
The predominantly white-owned commercial farms provide the workplaces, homes and main source
of subsistence for most of the San population, even though their living and working conditions are
often deplorable. Although the San people are well-known for their ability to hunt and gather for their
subsistence, most of them no longer have access to wildlife and other natural resources, due to a lack
of access to land.
1.2.6
Demographic composition of the population13
The Namibian population consists of several ethnic groups. The Ovambo-speaking group consists of a
number of clans and is the largest black group, numbering around one million people. They live
mainly north of the Etosha Pan. The Ovambo are a branch of the Bantu who are thought to have
migrated to Namibia in the 16th century from East Africa. Traditionally, they are crop farmers, but
they also have cattle and goats.
The term ’Kavangos’ is erroneously used for the people of the Kavango region, consisting of several
language groups, including Kwangali, Mbukushu and Jeiriku, with a population of approximately 183
000. They occupy the north-east border area between Namibia and Angola. They live on agriculture,
cattle breeding and fishing.
The Herero, who number over 130 000 people, inhabit mainly central Namibia. They initially settled
in Kaokoland (now Kunene region) in the north-west, where they lived for some 200 years before
most of them immigrated to their present settlement. They are traditionally mainly pastoral farmers.
The “Caprivians” consist of some 50 000 people of the Lozi, Masubia, Mafwe, Mbukushu, Mayeye
and other language groups and live in the Caprivi Strip (furthest north-east part) of Namibia. The
regional capital is Katima Mulilo. Their economy is based on cattle ranching, agriculture and fishing.
8
9
10
11
12
13
J Suzman An Assessment of the Status of the San in Namibia (2001) 123.
As above.
n 8 above, 118.
United Nations Development Programme (1996) Namibia Human Development Report 1996.
M Bollig Resource Management and Pastoral Production in the Epupa Project Area (1997).
As above, 8.
6
The Himba number about 20 000 and are scattered throughout the Kunene region. No separate
population figures were available for the Ovatue, Ovatjimba and Ovazemba, who occupy the
mountainous places of the region. They speak the same language as the Himba, albeit with differences
in intonation or accent. Their numbers are probably included in the Himba population figure. Opuwo
is the regional capital of the Kunene region. The Himba, Ovatue, Ovatjimba and Ovazemba are all
small sub-groups of the Herero communities. They still uphold their traditional semi-nomadic lifestyle. They speak the same language as the Herero and live exclusively on their heads of cattle. Their
culture is threatened by the continuously-growing and uncontrolled Kaokoland tourism.
The entire south of Namibia is inhabited by the Nama people. They are related to the Khoikhoi and
came from the Cape where white settlers displaced them in their scramble for land. They number
approximately 80 000. They farm mainly with sheep and goats. They speak a Khoisan dialect with
various click sounds.
The Damara people number approximately 132 000 and speak the same language as the Nama. Their
main settlement area stretches from Erongo to the Etosha Pan with the town of Khorixas as their
centre. The majority of the Damara, however, live scattered across the country. They breed cattle and
goats.
The San number approximately 35 000. Most San work as farm labourers on communal and
commercial farms; often under extremely poor conditions. Only about 15 per cent of the San live on
San communal areas where they are allowed to live and carry on their traditional hunting and
gathering activities.14 The San is not a homogeneous group, but hails from five major language groups
namely, the Kxoe, the !Kung, Hai //om and the !Xo.15 In the past, they lived in the mountains and hills
throughout the country where their paintings and engraving can still be found today.
The ‘Coloureds’ and Basters are mixed-race groups, numbering about 72 000. The Basters live mostly
in and around the town of Rehoboth, south of Windhoek, where their ancestors settled in 1868. They
originally were descendants of the Khoikhoi and other African groups and European immigrants from
the Cape Colony. They are traditionally cattle and small stock breeders. They speak Afrikaans and
still follow Afrikaner traditions and culture.
About 100 000 whites live in Namibia – 20 per cent of whom are of German, 20 per cent of English
and 60 per cent of Afrikaner extraction. While this group no longer holds political power, they largely
dominate the economy, especially in key sectors such as agriculture, trade, mining and tourism.
1.2.7
Administrative divisions
Namibia is divided into 13 administrative regions, namely the Caprivi, Erongo, Hardap, Karas,
Khomas, Kunene, Ohangwena, Okavango, Omaheke, Omusati, Oshana, Oshikoto, and Otjozondjupa.
1.2.8
Structure of government
At independence, Namibia adopted a liberal constitution as its basic law. The structure of government
is described as a multi-party constitutional democracy.16 The political parties in the country include
the South West Africa People’s Organisation (SWAPO), the Congress of Democrats, the Democratic
Turnhalle Alliance (DTA of Namibia), the Monitor Action Group (MAG), the Rally for Democracy
and Progress (RDP) and the United Democratic Front (UDF). SWAPO has been the ruling party in the
country since Namibia’s independence in 1990.
14
15
16
Suzman (n 8 above) 6.
n 6 above, 68
C Daniels ’Indigenous Rights in Namibia’ in Hitchcock and Vinding (n 6 above) 46.
7
The President is the head of state and government and the commander-in-chief of the defence force.17
Executive power vests in the President and the Cabinet. The President is elected by popular vote for a
term of five years, renewable once.18 The last presidential elections were held on 15 and 16 November
2004 and the next will be held in 2009. Among the President’s powers is the appointment of the Prime
Minister, Ministers and Deputy Ministers, the Attorney-General and the Director-General of
Planning.19
The legislative branch of government is made up of the National Assembly (the lower house)20 and
the National Council, which reviews all legislation.21 The Namibian Constitution makes no provision
for any quota for marginalised or indigenous peoples in either the National Assembly or the National
Council. The Constitution, however, makes provision for appointment by the President of six
additional members of the National Assembly.22 Such additional members are appointed for their
special expertise, status, skill or experience and do not represent any interest group. They have no
vote in the National Assembly and are not taken into account for purposes of determining any specific
majorities required in the National Assembly. There is no provision for representation of indigenous
people in the Constitution of Namibia, nor is there any evidence to suggest that such appointments
have ever been used for the benefit of indigenous people.
Chapter 9 of the Constitution establishes the judiciary, consisting of the Supreme Court, High Court
and Lower Court.23 The judges of the Supreme Court and the High Court are appointed by the
President on the recommendation of the Judicial Service Commission.24 Articles 78(2) and 78(3)
emphasise the independence of the judiciary.
Chapter 10 of the Constitution25 establishes an Ombudsman whose office shall be independent from
interference from other branches of government. The functions of the Ombudsman include, among
others, the investigation of ’complaints concerning alleged or apparent instances of violation of
fundamental human rights’.25 The mandate of the Ombudsman, however, is relatively limited, and to
date, financial and human resources have been limited. Increasing these resources are on the agenda to
enable the Office to fulfil its mandate more effectively. To date the Ombudsman has received very
few complaints, and recently the CERD Committee, acknowledging that this may be due to victims’
lack of information about their rights and of the accessibility of legal remedies, recommended the
implementation of efforts to sensitise the general public about their rights and the availability of legal
remedies for victims of racial discrimination.26
1.2.9
Role of media and civil society
Namibia has various types of media. The South African Broadcasting Corporation (SABC)
broadcasted in African languages as early as 1969. There was Radio Ovambo broadcasting in the
Kwanyama and Ndonga languages, Radio Herero and radio Damara Nama.27 The introduction of
Radio Kavango along the northern-eastern border with Angola followed in February 1976 in the
Mbukushu and Jeiriku languages. In March 1990, the South West Africa Broadcasting Corporation
(SWABC) was renamed the Namibia Broadcasting Corporation (NBC), and aims to provide
information, education and entertainment to its listeners without discrimination. The NBC now
operates radio services in several languages, with regional programming at various times. These
include: Oshiwambo Service in Ovambo, Kwanyama for the north and northwest, Otjiherero Service
17
18
19
20
21
22
23
24
25
25
26
27
Art 27 Constitution of Namibia.
Arts 27 and 28 Constitution of Namibia.
Art 32 Constitution of Namibia.
Art 44 Constitution of Namibia.
Art 75 Constitution of Namibia.
Arts 32(5)(c) and 56(1)(b) Constitution of Namibia.
Art 78 Constitution of Namibia.
Art 82 Constitution of Namibia.
Art 89 Constitution of Namibia.
As above.
CERD, Concluding Observations: Namibia, August 2008, UN Doc CERD/C/NAM/CO/12, para 25.
South West African Broadcasting Corporation http://pumamouse.com/SWABC.html.
8
in Herero for the east and Damara/Nama Service in Damara Nama for the central Namibia. NBC also
broadcasts in English and Afrikaans.28 More recently, limited radio broadcasting services were
introduced in the local San languages in Tsumkwe to provide information and entertainment to the
San in the remote villages of the conservancies. Radios were distributed in the villages.29 Rural areas
do not, however, have access to electronic media.30 Newspapers are published in English, German,
Oshiwambo and Afrikaans.
Civil society is relatively active in Namibia. Civil society largely consists of local and national nongovernmental organisations that are issue-based and dependent on foreign donor funding for their
activities and programmes. The Namibia Institute for Democracy (NID) caters for the Civic Education
Programme, public dialogue, AIDS and the Governance programmes.31 The Working Group for
Indigenous Minorities (WIMSA) caters for the San indigenous peoples’ rights. The San Council,
established in March 2004, stands for San rights. The Ju/’hoansi Bushman Development Foundation,
created in 1980, became the Nyae-nyae Development Foundation in 1991 and was active in the
establishment of the Nyae-Nyae Conservancy and has made it possible for San children to use their
language at school. The Legal Assistance Centre (LAC) is a public interest law centre and has assisted
a number of indigenous groups to enforce their rights. For example, LAC assisted the Himba
community to claim its right to land and the right to be consulted when the government was about to
build a dam in its region without considering the community’s interests.32 Health Unlimited, a UKbased NGO, has been instrumental in improving the health of the San in Namibia.33
1.3
Background to the legal system
1.3.1 The legal system
As indicated earlier, Namibia has a liberal constitution as its basic law. Its legal system is based on
Roman-Dutch common law, but the Constitution also recognises customary law practices. 34
1.3.2
Sources of law
The Constitution is the fundamental law of the country. Article 44 of Constitution empowers the
legislature to pass laws with the assent of the President as provided in the Constitution. Both
customary law and common law are part of the Namibian legal system, provided they do not conflict
with the Constitution or any other statutory law.35
There is strong constitutional protection of fundamental human rights and freedoms, with an
independent judiciary to enforce the law. The Constitution contains a Bill of Rights,36 which all
branches of government are obliged to observe. The courts are constitutionally obliged to guarantee
the principle of separation of powers and the rule of law. The establishment of an independent
Ombudsman by the Constitution of Namibia to investigate complaints of violations of fundamental
28
As above.
Information provided by Nyae Conservancy Management Committee.
Mulongeni ‘Media and Broadcasting in Namibia Workshop on National Information and Communication Infrastructure for
Namibia, 11-13 May 1998.
31
Project: Namibia Institute of Democracy (NID) http://www.kas.de/prof/home/8/12/2/website - ed -1661 index.html.
32
Daniels in Hitchcook and Vinding (eds) 54.
33
As above 52.
34
As above, 51.
35
Art 66(1) Constitution of Namibia.
36
Ch 3 Constitution of Namibia (Arts 5 - 25). See also art. 78 (2), (3) of the Constitution; the judgment of the Supreme Court in the
matter of Walter Mostert v The Minister of Justice (unreported) and by the subsequent enactment of the Magistrates Act, No. 3 of 2003. In:
Judicial Independence and the responsibilities of a judicial officer. Symposium held at Heja Game Lodge, 12th junde 2004 by the
honourable
Mr
Justice
Peter
Shivute,
judge-president
of
the
high
court
(http://journals.cambridge.org/download.php?file=%2FJAL%2FJAL46_02%2FS0221855302001918a.pdf&code=1609d298291d7a640e7fa9
d615b280fd (6 November 2008). Judicial officers are accountable to the Judicial Service Commission in the performance of their judicial
functions, and are subject to the rules relating to professional ethics, discipline and dismissal as stipulated in the Constitution and other law.
UNAM Human rights and documentation center.http://www.unam.na/centres/hrdc/1_the_rule_of_law_in_namibia.pdf
29
30
9
rights and freedoms, corruption and other administrative injustices37 further strengthens the justice
system of Namibia.
Post-independence court judgments confirm the judiciary’s resolve to ensure the protection of
fundamental rights and freedoms. The case of S v Minnies38 demonstrates the courts’ determination to
remove unjust past practices by prohibiting admission into evidence any unlawfully-obtained
evidence. The High Court declared that the admission of such evidence affects the accused’s right to a
fair trial. In another case, S v Willemse,39 the High Court held that a failure to inform an unrepresented
accused of his right to a lawyer amounted to a denial of a fair trial.
1.3.3
Court structure
The Constitution of Namibia vests judicial power in the courts of Namibia,40 which consist of:
(a)
The Supreme Court of Namibia, which has appellate jurisdiction over appeals from the High
Court, cases involving the interpretation of the Constitution and matters referred to it by the AttorneyGeneral.41
(b)
The High Court of Namibia, which has original jurisdiction ’to hear and adjudicate upon all
civil disputes and criminal prosecutions’, matters involving the ‘interpretation, implementation and
upholding’ of the Constitution, fundamental rights and freedoms as well as appeals from Lower
Courts.42
(c)
Lower Courts of Namibia, consisting of the Magistrates Court, which has jurisdiction in
criminal, civil and other matters as prescribed by an act of Parliament and Community Courts, which
deal primarily with the administration of customary law. 43
1.3.4
International law
In Namibia, the power to negotiate and sign international agreements is vested in the President.44 The
President is, however, permitted to delegate such power to any other person. The agreements so
negotiated and signed may only come into force after their ratification by the Parliament of Namibia.45
1.3.5
Status of international law
Article 144 of the Constitution provides as follow:
Unless otherwise provided by this Constitution or an Act of Parliament, the general rules of public
international law and international agreements binding upon Namibia under this Constitution shall
form part of the law of Namibia.
The implication of this provision is that rules of public international law, as well as the provisions of
international agreements ratified by Namibia, should be directly enforceable under Namibia law.46
However, the problem is that most international agreements are not self-executing in the sense that
they create rights and duties for the parties within the state. However, states themselves are still bound
by the obligations placed upon them by virtue of the ratification of those instruments. Matters such as
remedies and sanctions are left to states to define in detail. It is, therefore, necessary for Namibia to
37
See arts 89 and 91 Constitution of Namibia.
S v Minnies and another 1990 NR177 (HC).
S v Willemse 1990 NR 177 (HC).
40
Art 78 Constitution of Namibia.
41
Art 78 Constitution of Namibia.
42
Art 80(2) Constitution of Namibia.
43
Art 83 Constitution of Namibia.
44
Art 32(3)(e) Constitution of Namibia.
45
Art 62(3)(e) Constitution of Namibia.
46
O Ruppel ‘Third Generation Human Rights and the Protection of the Environment’ in Horn and Bösl (eds) Human Rights and the
Rule of Law in Namibia (2007) 101.
38
39
10
define the internal obligations acquired under international agreements through acts of Parliament
(domestication) to make it easier for the rights to be understood and the courts to enforce them.
Namibia has done little incorporation of the numerous international agreements it has ratified under
its domestic law, except to some extent in the areas of children’s rights, women’s rights and labour
law.47
1.3.6
Ratification of UN, ILO, and regional instruments48
(a)
United Nations (UN) instruments
Instrument
ICCPR
ICESCR
Optional Protocol to ICCPR
CERD
Art 14 of CERD
CEDAW
Protocol to CEDAW
CRC
Protocol to CRC – Armed Conflict
Protocol to CRC – Sexual Exploitation
Genocide Convention
Slavery Convention 1927
Supplementary Slavery Convention 1956
CAT
Art 22 of CAT
CMW
Art 77 of CMW
Convention on Biological Diversity
(b)
Ratification of ILO conventions/instruments
ILO 29 (Forced Labour)
ILO 105 (Abolition of Forced Labour)
ILO 100 (Equal Remuneration)
ILO 111 (Discrimination in Employment and
Occupation)
ILO 107 (Indigenous and Tribal population)
ILO 169 (Indigenous Peoples)
ILO 138 (Minimum Age)
ILO 182 (Worst Forms of Child Labour)
(c)
48
49
15/11/2000
15/11/2000
13/11/2001
15/11/2000
15/11/2000
Ratification of AU instruments49
Instrument
African Charter
African Charter on the Rights of the Child
Protocol on the Rights of Women
Protocol on the African Court
Convention on Nature and Natural Resources,
47
Date of deposit of ratification/accession
28/11/1994
28/11/1994
28/11/1994
11/11/1982
11/11/1982
23/11/1982
26/05/2000
30/09/1990
16/04/2002
16/04/2002
28/11/1994
28/11/1994
28/11/1994
16/05/2005
Date of deposit of ratification accession
30/08/1992
23/07/2004
22/12/2000
-
N Horn ‘Namibia’ in Human Rights Law in Africa (2004) 1358.
www.achpr.org and University of Minnesota, Human Rights Library.
http:www.africa-union.org.
11
1968
Revised Version of Convention on Nature and Natural Resources, 2003
OAU Refugee Convention 1969
Culture Charter for Africa
The African Charter on Democracy, Elections
on Governance, 2007
1.3.7
(a)
Namibia’s obligations under international human rights instruments
Status of reporting 50
Namibia, like all other state parties, is under an obligation to report regularly to the treaty supervisory
bodies established by human rights instruments on how it has and is implementing the instruments in
question on the ground, including the progress on the domestication of these instruments.
Under the Convention on the Elimination of Racial Discrimination (CERD), out of the expected 18
reports, Namibia provided only one report on time,51 two were late submissions and were not
considered by the Committee.52 However, at its last submission,53 the Committee on CERD
commended the Government for the measures taken to address development and other aspects
concerning indigenous peoples. However, a number of concerns were expressed concerning the lack
of participation of indigenous peoples in the definition of policies and programmes aimed at their
development, as well as in the areas of land rights, traditional leadership, education and health (see
later sections for specific points raised by the Committee). The last report received by CERD was in
2008.
Reporting under the ICCPR, Namibia has submitted its report (that was due on 27 February 1996) on
15 October 2003. In spite of a positive note, relating to the establishment and development of
democratic institutions in the post-colonial era, the Human Rights Committee was concerned by the
absence of mechanisms to implement the Committee’s views under the Optional Protocol (article 2)
and the lack of protection of the rights of minorities to use their language.54
As far as reporting under the ICESCR is concerned, Namibia not submitted any report although it
should have done so on 30 June 1997 and 30 June 2002.
Under the African Charter, Namibia submitted its first report in November 1997, combining the 19941998 overdue reports; its second report followed on time in May 2000 and its third report, due in
2003, is yet to be submitted.55
The African Commission pointed out that measures to address the special needs of vulnerable groups
such as the Himba and San were inadequate and that indigenous people living at the border with
Angola needed special attention, including the provision of adequate security.56
(b)
Individual communications
In a communication brought before the UN Human Rights Committee, Diergaardt v Namibia,57 a
cultural minority invoked the ICCPR for the first time in an African context. This issue is discussed
more fully below.
50
www.org.ohchr.org (accessed 20 January 2010).
Report due on 11/12/83 and submitted on 09/12/83. For the Concluding observation of the Committee on CERD, see UN
CERD/A/39/18; para 399-42.
52
CERD/C/SR.1169 and CERD/C/SR 1170.
53
On 02/11/95.
54
See UN, CCPR/CO/81/NAM (Concluding Observation/Comments) para 21.
55
African Charter www.africa-union.org.
56
As above.
51
12
1.3.8
National and other human rights institutions
The main national human rights institution dealing with human rights protection is the office of the
Ombudsman. This office has recently embarked on the promotion of human rights through visits to,
and information campaigns in marginalised minorities in remote areas, informing them of their rights.
The office has also embarked on the distribution of pamphlets in various local languages containing
information on human rights.
The Inter-Ministerial Technical Committee on Human Rights may be considered another national
human rights institution, though its function is mainly the preparation of the state’s periodic reports to
human rights monitoring bodies.
Active human rights NGOs present in Namibia are Human Rights and Documentation Centre
(HRDC), attached to the University of Namibia. LAC, the National Society for Human Rights and the
Namibia Institute for Democracy. Legal materials can be obtained from the Namibia Law Reports
published by LAC and Juta & Company, Cape Town, as well as from statutes published in the
Government Gazette and available from the Government Printers.
1.4
Main human rights concerns of indigenous peoples
The human rights concerns of indigenous people in Namibia are similar to those of indigenous
peoples worldwide. These relate to rights protecting them against discrimination, rights to land, access
to justice, culture, education, health and self-determination and self-management.
1.4.1
Discrimination
There is rampant discrimination against indigenous peoples in Namibia, as is the case elsewhere in
Africa. They are generally considered un- or under-developed, intellectually backward or primitive
58
people who will benefit from modernisation and integration into the dominant society.
1.4.2
Rights to land
Land has been the most contested resource since colonial times. European colonialists often occupied
most of the suitable farming land. Indigenous traditional land has, since the colonial era, been turned
into either game parks or commercial farms, resulting in indigenous people, particularly the San,
being turned into landless, underclass farm labourers, domestic servants and squatters.59 In terms of
schedule 5(1) of the Constitution, communal land is vested in the state, which undertakes to
administer it in trust for the benefit of traditional communities residing thereon and for the purpose of
promoting the economic and social development of the Namibian people. It is when the latter purpose
conflicts with the interests of those residing on such land that adverse consequences, such as
homelessness, result. Post-independent Namibia has created conservancies where indigenous
communities can achieve a level of control over some natural resources, thereby generating an income
from game management and tourism.60 These conservancies have also to some extent given
communities belonging to the conservancies some security of land tenure on the land covered by the
conservancies. Farms have also been acquired by government for the settlement of landless people,
including indigenous peoples. Farm acquisitions are, however, not being done at a fast enough pace to
accommodate the many San people deprived of their lands during the pre-independent period and
those who have lost their jobs on commercial farms following the introduction of new labour laws
setting out minimum wages. Many of these live as squatters on the fringes of commercial farms and
57
Communication 760/1997, UN Doc CCPR/69/D/760/1997 (6 September 2000).
VT Corpuz (2005) ’Millenium Development goals and indigenous peoples, Permanent Forum on Indigenous Issues’ 4th Session
New York May 26-27.
59
R Sylvain (2002) 104 quoted from Nyang’ori Ohenjo et al ‘Health of Indigenous People in Africa’.
60
R Sylavan (2002) ‘San women today: Inequality and dependence in post-foraging world. Indigenous Affairs’ 2002: 1-2
Indigenous Women 8-13.
58
13
urban centres such as Gobabis without shelter or a means of livelihood. The measures that are taken,
however, fall far short of rights to ownership of lands for indigenous peoples.
1.4.3
Access to justice
Access to justice for indigenous peoples presents serious challenges. Indigenous peoples in Namibia
often lack the capacity to effectively use the law to protect their rights. The high illiteracy levels
among indigenous peoples, particularly the San and the remoteness of the areas in which they reside,
seriously comprise their access to information on law, their rights and the court system. Their inability
to understand the language used in the courts inhibits their ability to access the courts for justice and
for them to receive justice should they be brought before the courts on criminal allegations. The nonrecognition of traditional leaders for many of their communities denies them access even to the basic
forms of traditional justice.
1.4.4
Access to health
The apartheid policy provided healthcare on the basis of race with the best health facilities allocated
to white people.61 Because of the remoteness of their lands, coupled with discrimination and poverty,
the health services provided to indigenous peoples are the worst. Health institutions are located far
from them and even then these are usually poorly-equipped and understaffed. Poor healthcare,
coupled with poverty and a lack of recreation facilities, have given rise to alcoholism, teenage
pregnancies, a high incidence of pneumonia, tuberculosis and HIV/AIDS, especially among the San
people.62
61
62
Hitchcock and Vinding ‘Introduction’ in Hitchcock and Vinding (eds) 239.
Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (2005) 52.
14
Part II: Legal Protection of Indigenous People in Namibia
2.1
Recognition and identification
As pointed out earlier, recognition of indigenous status is a conceptual challenge in Namibia, as it is
elsewhere in Africa. The government’s approach has been to regard all black Africans or descendants
of those who lived in areas that were invaded by colonial powers as indigenous people.63 As a result,
there is no specific legal protection under Namibian law to protect the rights of indigenous peoples.
The only reference to the term ‘indigenous’ in reference to a group of people is found in section 1(b)
of the Traditional Authorities Act 25 of 2000 which ascribes indigenousness to almost anyone of
African bloodline born in Africa, thereby confirming that the government of Namibia regards all
Namibian communities of African bloodline as indigenous people.
Article 1(b) reads:
…’traditional community’ means an indigenous homogeneous, endogamous social grouping of persons
comprising of families deriving from exogamous clan which share a common ancestry, language, cultural
heritage, customs and traditions, who recognises a common traditional authority and inhabits a common
communal area, and may include the members of that traditional community residing outside the
common communal area.
The approach adopted in Article 1 of the ILO Convention for identifying indigenous peoples provides
a useful guide to Namibia, even though the Convention has not been ratified by Namibia and does not
therefore form part of the Namibian law in terms of Article 144 of the Constitution.
Legal recognition of an indigenous person in Namibia on the basis of article 144 of the Constitution
could follow that provided by the African Commission through its interpretive mandate of the African
Charter on Human and Peoples’ Rights as discussed above, namely, peoples who define themselves as
indigenous, who have a special attachment to their land, who are marginalised, dispossessed and
discriminated against.64 In arriving at that definition, the African Commission through its Working
Group took into account the overall international framework relating to indigenous peoples,65
including ILO Convention 169, the work of the World Bank and the United Nations’ Human Rights
66
Commission (now Human Rights Council) in line with the African Charter.
Despite the absence of specific legal provisions for the protection of the rights of indigenous people,
the Namibia government maintains that the Constitution of Namibia provides a legislative and
normative framework for the protection of indigenous minorities.67 Article 3, relating to language
rights, and articles 5 to 21 of the Constitution, protecting fundamental human rights and freedoms,
specifically, culture, education, fair trial rights, equality and non-discrimination and dignity, are
referred to in order to substantiate this claim.
Article 23(2) of the Constitution of Namibia, which allows for special measures, reads as follows:
Nothing contained in article 1068 (equality provision) hereof shall prevent Parliament from enacting
legislation providing directly or indirectly for the advancement of persons within Namibia who have
been socially, economically or educationally, disadvantaged by past discriminatory laws or practices,
or for the implementation of policies and programmes aimed at redressing social, economic or
educational imbalances in the Namibian society arising out of discriminatory laws or practices, or for
achieving balanced structuring of the public service, the police force, the defence force, and the prison
services.
63
64
65
66
67
68
S Saugested ‘The indigenous people of Southern Africa: An overview’ in Hitchcook and Vinding (eds) 40.
Report on the African Commission’s Working Group on Indigenous Populations/Communities 93.
As above, 103.
Art 60 African Charter.
Information provided by the Ministry of Justice during the meeting of 7/04/08.
See Part II, section 2, on non-discrimination in this report.
15
This provision is considered critical for the advancement of persons who have been socially,
economically and educationally disadvantaged, particularly indigenous minorities such as the San, the
Himba, the Ovatue, Ovatjimba and Ovazemba.
The government concedes that indigenous people such as the San and the Ovahimba have over the
years been subjected to unequal treatment and discrimination. It is for this reason that the Namibian
government has undertaken special programmes to address the special needs of these people. Since
the year 2005, the Government of Namibia, in line with article 23(2) of the Constitution, embarked on
a number of programmes intended to alleviate acute poverty and to create a more just, fair and
equitable social order in Namibia.69
Despite the efforts so far undertaken by government in line with the provisions of article 23(2) of the
Constitution and the equality and non-discrimination provisions of the Constitution, indigenous
people still suffer from discrimination and marginalisation from the dominant groups. The
government’s efforts need reinforcement through the enactment of specific legislation to translate the
provisions of the Constitution into concrete enforceable obligations. Presently, in the absence of
initiatives by government, it would be difficult for indigenous people to compel government to take
specific action for the enhancement of their welfare. Since the visit of the African Commission’s
Working Group on Indigenous Populations/Communities to Namibia from July to August 2005, the
Namibian government has put in place the San Development Programme which was approved by
Cabinet on 29 November, 2005. The Programme is spearheaded by Dr Libertine Amadhila, the
Deputy Prime Minister, whose objective is to ensure the full integration of the San people into the
mainstream socio-economic strata. The effort is driven by the country’s Vision 2030 goals of creating
a ’just and equitable society’.70 While several programmes have been initiated for the San people,
President Pohamba also directed the Deputy Prime Minister to ensure the resettlement of the nomadic
Ovatue and Ovatjimba communities of the Kunene region.71 As a result of this highlevel intervention,
1000 people from the Ovatue and Ovatjimba were resettled in three villages with government
assistance in August 2008.72
2.2
Non-discrimination
The term ‘San’ is used to refer to a diverse group of indigenous peoples living in Southern Africa who
share historical and linguistic connections. Unfortunately, the San have historically been regarded as
second-class citizens in Namibia by both the Europeans and Bantu-speaking peoples. Members of the
San community have endured exploitation and discrimination at the hands of their fellow citizens
throughout history. This includes exploitation by colonial forces that used them as trackers and later
left them helpless in former military camps. Today, the fate of the San people are in the hands of
farmers in both the communal and commercial areas in the Omaheke and Caprivi regions, as well as
other employers across the country where they are marginalised and subjected to unfair labour
practices and inadequate shelter.
Discrimination against the San has continued in independent Namibia despite the protection against
discrimination afforded by article 10 of the Constitution of Namibia, article 26 of the ICCPR, article 2
of ICESCR, articles 2, 3 and 19 of the African Charter on Human and Peoples’ Rights (ACHPR) and
ILO Convention 111. Article 10 (2) of the Constitution reads:
No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion,
creed or social or economic status.
Article 23(1) of the Constitution prohibits the practices of racial discrimination and the ideology of
apartheid. Article 23(1) further provides that legislative measures must be taken through the
enactment of an act of Parliament aimed at rendering the practices of racial discrimination and its
69
70
71
72
The San Development Programme Report 2007/2008, 27 March 2008 by the Office of the Deputy Prime Minister.
The San Development Programme Report 2007/2008 29 March 2007.
Republic of Namibia Government Bulletin, October 2007.
New Era 08 August 2008.
16
propagation criminally punishable by the ordinary courts. Furthermore, the Racial Discrimination
Prohibition Act of 1991 was promulgated, which is the principal legislation that criminalises acts of
racial discrimination and prohibits the propagation of racial discrimination and the practice of
apartheid. In its Concluding Observations on Namibia in 2008, the CERD Committee expressed its
concern that the definition of racial discrimination in the Racial Discrimination Prohibition Act was
not completely consistent with article 1 of the Convention, and recommended that the government
ensures that its domestic law conformed to the Convention.73
The Government needs to take positive steps to ensure that the rights of the San people are protected.
These should include the enactment of specific laws to prohibit and to punish discrimination. The
situation is aggravated by the inability of the San to protect their rights because of poverty, a lack of
education and their remote location. On the issue of special measures to address discrimination,
however, some concern has been expressed about the lack of budgetary allocations, as well as
questions arising as to whether these measures are devised, particularly in the case of those for
indigenous communities, with the full and adequate consultation and participation of the communities
concerned, to ensure that they adequately reflect their needs and aspirations.74
Further, as confirmed by the Honourable Royal /Ui/o/oo, the only San Member of Parliament (MP),
the stereotypical attitude of the San neighbours who regard them as ’useless, lazy and primitive’ has
instilled a sense of despair and a low self-esteem among the San, to the extent of hiding their identity
when in public. In the opinion of the MP, this seriously undermines San culture as many of their
youth no longer associate with it.
In the light of the above situation, the government has taken measures to end societal discrimination
against the San by introducing programmes for the improvement of their well-being, such as the San
Development Programme as well as seeking their advice on proposed legislation on communally-held
lands, and by increasing their access to education.75 No specific legislation has as yet been proposed.
Although the school enrolment rate of San children remains low, the school drop-out rate is high and
very few of those attending school go beyond grade ten.
2.3
Self-determination
The right to self-determination is mentioned in common article 1 of the ICCPR and ICESR and article
20 of the ACHPR, which form part of Namibian law in terms of article 144 of the Namibian
Constitution. The right of indigenous peoples to self-determination is also contained in the United
Nations Declaration on the Rights of Indigenous Peoples.
The Constitution of Namibia76 recognises customary law as part of the legal system of Namibia. The
Traditional Authorities Act 25 of 2000 provides for the establishment of traditional authorities
consisting of chiefs or heads of traditional communities and senior traditional councillors and
traditional councillors77 to preside over the welfare of the community over which it was established.
The Traditional Authorities Act provides for the official recognition of chiefs and traditional
authorities that are constituted by traditional councillors. The designation of chief or head of a
traditional community is the prerogative of the community members, authorised to do this by their
customary law.78 However, the traditional community ‘shall apply on the prescribed form to the
Minister for approval to make such designation and the application shall state’, among others, ‘the
reason for the proposed designation’.79 The Minister will approve the proposed designation if he
73
74
75
76
77
78
79
CERD Concluding Observations: Namibia, August 2008, UN Doc CERD/C/NAM/CO/12 para 10.
CERD Concluding Observations: Namibia August 2008, UN Doc CERD/C/NAM/CO/12 para 12.
2005 Namibia Country Report on Human Rights Practices released by the Bureau of Democracy, Human Rights and Labour.
Art 66(1) Constitution of Namibia.
Sec 2(1).
Sec 4(1) & (2) Act 25 of 2000.
Sec 5(i).
17
believes the nominated person qualifies to be chief.80 If he believes otherwise, he should notify the
President of the Republic who will refer the matter to the Council of Traditional Leaders for its
recommendation.81 The Council of Traditional Leaders has 12 months to submit its recommendations
to the President. If it fails to meet the deadline, the President will use his or her discretion to approve a
designation.82
Traditional authorities are responsible for implementing customary law and settling disputes. They are
responsible for upholding, protecting and preserving customs, culture, language and traditional
values,83 administering and executing customary law, promoting affirmative action amongst the
members of their traditional community as contemplated by article 23 of the Constitution, in
particular by promoting gender equality.84 Traditional authorities should make sure that community
members use the natural resources at their disposal on a sustainable basis and in a manner that
conserves the environment.85 Amongst other functions, a member of a traditional authority has the
duty to assist the police and other law enforcement agencies in the exercise of their duties, to assist
and co-operate with the government, regional councils and local authority councils in the execution of
their policies and to keep the members of traditional communities informed of development projects
in their area.86 A traditional authority is also supposed to support the policies of government and not
to undermine the authority of government.87
On the face of it, the legal framework in Namibia appears to provide some rights to selfdetermination. On the ground, the implementation of article 20 of the ACHPR and common article 1
of the ICCPR and ICESCR appears problematic. To be recognised, traditional authorities must submit
an application to the state,88 a requirement which could compromise the realisation of the above
instruments.
The authority to confer recognition or withhold it from traditional leaders is vested in government.
Such power could be abused where the beneficiary of the appointment may not be politically
acceptable. For example, the recognition of traditional leaders from the Mafwe community was
reportedly granted because the leaders were close to SWAPO.89 The withholding of recognition of
traditional leaders of the Khwe (a San sub-group) is said to be linked to political affiliations of
designated individuals as opposed to the legitimacy of application.90 In 2003, the former president
Sam Nujoma acknowledged that the government’s refusal to recognise the Khwe traditional authority
was due to the authority’s collaboration with the South African Defence Forces in Namibia’s war of
independence.91 In short, there appear to be no standard and transparent criteria or process for the
official recognition of traditional authorities, including the monitoring of this process. This could
undermine not only indigenous peoples’ opportunities to apply to have their authorities recognised,
but also the legitimacy of the authorities. In this vein, the CERD Committee has questioned whether
the scope of the Council of Traditional Leaders Act of 1997 includes all indigenous communities, as
well as voicing its concern at the lack of clear criteria for the recognition of traditional leaders, as well
as the fact that no institution exists to assess applications for recognition independently of the
Government.92
80
Sec 5(3)(a)(i).
Sec 5(4).
82
Sec 5(6)(b).
83
Sec 3(1).
84
Sec 3(1)(g).
85
Sec 3(2)(c).
86
Sec 3(2)(b).
87
Sec 16.
88
Secs 4 - 6.
89
R Pakleppa & WIMSA ‘Civil Rights In Legislation and Practice: A Case Study from Tsunkwe District West, Namibia’ in
Hitchcock and Vinding 106.
90
IWGIA Briefing Note on Namibia - July 2005 www.iwigia.org/graphics/synkron-Library/Documents/International
Processes/ACH.
91
As above.
92
CERD, Concluding Observations: Namibia, August 2008, UN Doc CERD/C/NAM/CO/12 para 16.
81
18
The Khwe of West Caprivi, under the leadership of Kipi George, in 1997 brought an application to the
High Court with the assistance of the Legal Assistance Centre, for the recognition of their chief as a
traditional leader. The parties, however, reached an out of court settlement and agreed to refer the
matter to the Council of Traditional Leaders for its consideration and recommendation in terms of
section 5(4) of the Act. The Council of Traditional Leaders has, however, refused to recognise the
Khwe as a traditional authority. With the political upheavals and instability in the Caprivi region in
1998, Chief Kipi George fled to Botswana and subsequently passed away. The case was accordingly
discontinued. It was, however, reported that the newly-elected Khwe chief, Ben Ngobara, has
instructed the LAC to bring a fresh application for the recognition of the Khwe as a traditional
community.93
Elsewhere in the Omaheke region, there is an outcry over the lack of recognition of San traditional
authorities.
The Himbas are politically organised under four chieftains along the Kunene River Basin. These have
lived in relative isolation for decades. Despite this position, the Himbas complain of the refusal by
government to recognise thirty of their traditional leaders in former Kaokoland. They argue that this
refusal has deprived the areas concerned of their right to manage their own affairs. They claim that
their leaders were recognised under the colonial government and that this recognition was withdrawn
by the SWAPO government.
They report that after failing to resolve the matter through negotiations, they took the matter further
by means of an application to the High Court.94 The High Court decided partly in their favour. From
the judgment it appears that while the case was pending, the Ministry of Regional, Local Government
and Housing recognised eight of the applicants as traditional leaders and referred the remaining
contested ones to the Council of Traditional Leaders. The Ministry of Regional, Local Government
and Housing subsequently appealed against the judgment to the Supreme Court of Namibia, but
withdrew the appeal on 7 June 2002 because it appears that some settlement was reached between the
parties. They claimed to have reported the matter to the Ombudsman, but it was not possible to
confirm this with the Ombudsman’s Office.
The Ovatue and the Ovatjimba complain about extreme marginalisation. They allege that they have no
recognised traditional leaders and therefore do not manage their own affairs. Leaders from other
groups are imposed on them and they are not treated or seen as human beings by their neighbours.
Richard Pakleppa and WIMSA, however, hold the view that the implementation of the Traditional
Authorities Act has brought an unprecedented recognition of the San cultural and political rights.95
Nevertheless, the practical functioning of the traditional institution is hampered by the lack of
resources necessary for meetings, means of communication with government and other agencies, and
the required training in administrative and leadership skills.96 Recognition of more indigenous
peoples’ traditional authorities will further strengthen the management of their internal and local
affairs. Of critical importance is the need for government to ensure that traditional authorities are
chosen in processes established by the traditional community itself and in a transparent manner. The
decision on recognition should be objective and respect the will of the traditional community.
93
WIMSA Report on Activities April 2006 – March 2007 p 20-21; Interview with Mr Norman Tjombe, Director of the LAC (10
October 2008).
94
Kuaima Riruako and 46 Others v The Minister of Regional, Local Government and Housing and Another (HC) (P)
A336/2001(unreported judgment).
95
Pakleppa & WIMSA in Hitchcock and Vinding 91.
96
As above.
19
2.4
Participation and consultation
The Namibian Constitution97 provides for the right to equality and affirmative action to empower
those who were previously discriminated against, as well as catering for the right of participation of
women. It requires the state to ’encourage the mass of the population … to influence government
policy by debating its decision’.98
Although indigenous people in Namibia have formal rights to participate,99 they have no influence
over national issues, and are rarely consulted adequately on issues affecting them directly. The Himba
people of Namibia are politically marginalised and have been affected by major regional development
plans in their area.100 The case of Kapika v Government of Namibia (the Himba and Epupa
Hydropower Scheme case)101 is an illustration of this situation. This case concerns the decision of the
Namibian government to build a dam along the Kunene River in North-Western Namibia, in the area
inhabited by the Himba community. The local people were not consulted and were not involved in the
initial stages of the project. Through successful lobbying - both locally and internationally - the
Himba under the leadership of Chief Hikuminue Kapika, put pressure on the government to engage
the community in meaningful negotiations.102 This case will be discussed further below in the section
addressing the right to land, natural resources and environment.
The proposed resettlement of Angolan refugees in north-eastern Namibia is another example
demonstrating the lack of participation by indigenous people in matters concerning their community.
In October 2000, the community of M’kata, a village of 500 San inhabitants located in the N//a Jaqna
Conservancy in the Tsumkwe District, in the western Otjozondjupa region of north-eastern Namibia,
were informed that the government intended to resettle Angolan refugees from the Osire refugee
camp in central Namibia to a large piece of land in their area.103 The community and their leaders
were not consulted. When the chiefs of the M’kata104 community voiced their concern, they were told
that M’kata had been identified as the most suitable site.105 The resettlement of refugees in N≠a Jaqna
did not happen because eventually the refugees were able to return to Angola and not because the
government took into account the indigenous group’s objections.
Although indigenous people have little say in matters concerning their community and their lives, the
first San MP, Geelbooi Kashe, was elected to the National Assembly on a DTA ticket during the first
national elections in 1989. A second San MP, Royal /Ui/o/oo, was elected in 1999 on the ruling
party’s ticket.106 Both SWAPO and the DTA had one San candidate on their parties’ lists, but only the
SWAPO candidate won a parliamentary seat.107
However, the San MP is from the Nyae Nyae community, which is not particularly representative,108
as it consists only of one San community, namely, the Ju/’hoansi. Moreover, although Namibia’s
Millennium Development Goals Report (MDGR) does mention indigenous peoples, there is no
mention of their participation in the planning process for the report, nor were there plans to give
attention to their specific needs in the future.109
97
98
99
Arts 10, 23 and 95 Constitution of Namibia.
Art 95(k) Constitution of Namibia.
Art 10 of the Constitution provides for the right to equality.
Report of the African Commission Group of Experts on Indigenous Population/Communities (28th ordinary session) 18.
Kapika v Government of Namibia (unreported). See also SA Corbett Legal Resource Center, Namibia ‘A Case Study The
Proposed Epupa Hydopower Dam in Namibia’.
102
www.irinnews.org/report.aspx.
103
Bushmen Community Threatened by Refugee Camp Plan’ The Namibian 18 January 2001.
104
M’kata is a village located in Tsumkwe district West, in the North Eastern Namibia.
105
Kappleca & WIMSA in Hitchcock and Vinding 86.
106
Daniels 48 – 49.
107
Suzman 105.
108
As above 126.
109
Namibia Millennium Development Goals, 2004 Government of Namibia (August, 2004) available at
www.undg.org/documents/5307-Namibia MDG Report 2004.pdf (accessed 31/07/2007).
100
101
20
Since the intervention of the Deputy Prime Minister in 2005, the socio-economic position of some
San communities have changed for the better. Following visits by the Deputy Prime Minister to most
San communities across Namibia, the San Development Programme was introduced.110 These visits
were aimed at consultations with the San people on their needs and their perceptions of the pressing
challenges facing them. The Programme was framed pursuant to the revelations of the consultations
regarding the plight of the San people.
Pursuant to the objectives of the San Development Programme, the Deputy Prime Minister undertook
a mission to various regions inhabited by San communities to familiarise herself with the living
conditions and to make an on-the-spot needs assessment of the San communities in Namibia. During
these visits, the San communities were given the opportunity to express themselves in providing firsthand information on their needs, aspirations, challenges and setbacks in their social and economic
survival and emancipation. However, the Plan maintains a comparatively integrationist approach to
the development of the San people, which raises questions concerning the appropriateness of the
consultations held with them.
2.5
Access to justice
Chapter 3 of the Constitution emphasises respect for human dignity in article 8. Article 11 prohibits
arbitrary arrest and guarantees the right to be tried in a language understood by the suspect. Article
25(2) and 25(3) of the Constitution provides for the right of access to justice for all, while Chapter 10
provides for the administration of justice which is handled by the judiciary as stated by article 78.
Despite Constitutional guarantees of fundamental human rights and freedoms, it is usually difficult to
enforce these rights in indigenous communities. Clement Daniels emphasises that the existing liberal
democratic legal system makes it difficult for poor people to access the courts and the justice
system.111 Equality before the law and justice for all remain principles on paper, since most
individuals and communities lack the capacity to use the law effectively.
There is limited access to justice among indigenous minorities. The Mafwe and the Caprivi
Insurrection case112 illustrates this situation. The Mafwe, a small group living in the extreme northeast of Namibia (Caprivi), were brutalised, arrested and killed by the Namibian police and army
following the repression of a small insurrection in 1999.113 Their rights to dignity were violated; they
were treated inhumanely and cruelly, but they were unable to use the law effectively to defend their
rights due to various factors, including lack of education.114
The right of access to justice and the right to education are interconnected; without education it is
difficult to access justice. Although in Namibia indigenous people are not guaranteed the right to
education, mother tongue education and culturally appropriate education are a reality. In spite of
difficulties in accessing justice, Namibian indigenous people are frequently assisted by the LAC,
which represents them on numerous occasions.115
Other factors, such as the complexity and length of the legal processes, the high cost of litigation,
limitations of interpretations in court, distances to court rooms, make access to justice more difficult.
The state Legal Aid116Programme, albeit limited, normally gives preference to indigenous minorities.
110
See San Development Programme Report 2007/2008.
Daniels 46.
112
Quoted from Amnesty International Report ’Justice Delayed is denied: The Caprivi Treason Trial’
(http://web.amnesty.org/librart/ Index/ENGAFR420012003 (accessed on 17 January 2007); see also Harring in Hitchcock and Vnding 77.
113
As above.
114
As above; W Menges ‘Legal aid is not a right, says government’ The Namibian, 13 December 2001.
115
A close look at www.lac.org.na/lead/default.htm shows that LAC is involved in most of the cases addressing indigenous issues.
The Epupa dam project is one of them
116
See Legal Aid Act 29 of 1990.
111
21
A lot needs to be done in order to educate indigenous people on how they may access programmes
such as Legal Aid.
The LAC has commenced radio programmes aimed at indigenous people in remote areas such as the
Nyae Nyae Conservancy in Tsumkwe West. The programmes are broadcast in local San languages
and are intended to educate the San on their rights and legal protection available.
According to the Ombudsman, his Office has also embarked on public awareness campaigns of the
existence of the office, human rights, the mandate of the office and how it may be accessed. This is
done through visits to San locations. Publications of these visits are done through radio broadcasts.
The office is also publishing and distributing pamphlets in various local languages, including San
languages such as Ju/hoansi. The Ombudsman also reported that a Parliamentary Committee has
visited the Nyae Nyae Conservancy to talk about laws and human rights
(http://www.ombudsman.org.na/index.php/about-us/51-mandates-of-the-office-of-theombudsman?start=1)
2.6
Culture and language rights
Article 19 of the Constitution of Namibia protects the right to culture and language. It reads:
Every person shall be entitled to enjoy, practice, profess, maintain and promote any culture, language,
tradition or religion subject to the terms of this constitution and further subject to the condition that
the rights protected by this article do not impinge upon the rights of others or the national interest.
WIMSA assisted the San by writing the Media and Research Contract for the San of Southern Africa
in 2001.117 This contract obliges researchers and the media to respect San cultural heritage and binds
them to consult the San before using their images and other attributes. Moreover, as will be
demonstrated below, the protection of the San’s intellectual property rights was further supported by
the publication of A Handbook on San Intellectual Property Rights, produced by WIMSA in 2004.118
The right to use a language other than English in Namibian schools is guaranteed under article 3(1)
and (2) of the Constitution “subject to compliance with any requirements that may be imposed by law,
to ensure proficiency in the official language or for pedagogic reasons”. As well, languages other than
English may be used in the National Assembly, in courts of law, as well as for administrative reasons
in areas where such languages are spoken by a substantial portion of the population.119
Article 3
Language Rights
(1) The official language of Namibia shall be English.
(2) Nothing contained in this Constitution shall prohibit the use of any other language as a medium of
instruction in private schools or in schools subsidised by the State, subject to compliance with such
requirements as my be imposed by law to ensure proficiency in the official language, or for
pedagogic reasons.
(3) Nothing contained in paragraph 1 shall preclude legislation by Parliament which permits the use of a
language other than English for legislative, administrative and judicial purposes in regions or areas
where such language or languages are spoken by a substantial component of the population.
The judiciary has the duty to protect the rights enshrined in the Constitution and in international
instruments which form part of the law of Namibia in terms of Article 144 of the Constitution.
Although the cultural rights of all Namibians are protected and the country is bound by the ICCPR,
ICESCR and the ACHPR, the reality is that the cultural rights of indigenous people are still being
117
IWGIA Briefing Note on Namibia – July 2004 at www.iwigia.org/grahis/SynkronLibrary/Documents/InternationalProcesses/ACH p 6 (accessed 27-07-2007).
118
As above.
119
Art 3(1) & (2) Constitution of Namibia.
22
neglected. Clement Daniels points out that there is no specific recognition of rights of indigenous
people or minorities in the Namibian Constitution and that Namibia is not a signatory to the ILO
Convention 169 recognising the rights of indigenous peoples.120 However, Namibia voted in favour of
the adoption of the United Nations Declaration on the Rights of Indigenous Peoples.
Colonialism and apartheid have undermined the traditional practices of the indigenous peoples of
Namibia as they were ignored as backward and anti-Christian. As a result, many traditional practices
have been assimilated into the way of life and values of the colonialists.121
Recent history has shown that little regard is given to indigenous cultures when implementing
development projects. This would have been the case with the proposed Hydropower scheme on the
lower Kunene River where the construction of a dam would have seriously impacted the culture of the
Himba people. The loss of their resources would have impacted negatively on them, denying them the
right to maintain their livelihood and to retain and develop their culture and cultural identity. It would
have included the destruction of gravesites of ancestors where important cultural ceremonies are
performed.122
New Era recently reported that the Justice Ministry has difficulty obtaining funds from the
Parliament.123 This limits the judiciary’s ability to enforce human rights in general and indigenous
peoples’ rights in particular. Sharing this view, the President of the Law Society of Namibia,
Advocate Esi Schimming-Chase, commented that ‘the lack of necessary funds, as well as
administrative procrastination, has contributed to the backlog’.124
Article 66 of the Namibian Constitution provides that customary law is part of the country’s legal
system. In her report on National Gender Policy at the United Nations General Assembly, the Minister
of Gender Equality and Child Welfare states that:125
both the customary and common law in Namibia in force on the date of Independence shall remain
valid to the extent to which such customary or common law does not conflict with the Constitution or
any other statutory law.
Customarily and traditional law are part of the legal system of Namibia. The Community Courts Act
10 of 2003, which makes provision for the official recognition of established community courts,
where traditional authority is recognised in terms of the Traditional Authorities Act 25 of 2000, was
enacted to incorporate the administration of customary law into the judiciary system. It also provides
for the establishment of community courts where they do not exist within the jurisdiction of a
recognised traditional authority.126 The Traditional Authorities Act states that it is the overall
responsibility of a traditional authority to ‘supervise and ensure the observance of customary law of
that community by its members’.127
In Namibia, written law or statutory law can replace unwritten law only to the extent that the text
explicitly so provides. For instance, a change in the number of cattle to be paid in a case of murder
from 9 or 12 herds of cattle to 10 repeals the so-far existing rules.128 In line with their duties in the
codification of customary law,129 some traditional authorities have already started a process of
identifying, assessing and codifying the customary laws of their communities.
120
Daniels 46.
WIMSA, Culture and Cultural Rights http://www.wimsanet.org/advnet culture.asp (accessed 10 January 2007).
122
Daniels 40.
123
‘Justice Ministry having difficulty getting funds from parliament’ New Era, 19 January 2007.
124
As above.
125
UN General Assembly WOM/1592.
126
As above.
127
Sec 3 (1) Traditional Authority Act.
128
It was so decided in the customary law workshop of Owambo traditional leaders in Ognwedica on 25-26 May 1993. See also
‘the ascertainment of customary law’ by M O Hinz et al 4, paper presented at the International Conference on traditional governance and
customary law. Southern African Perspectives held in Windhoek 26-29 July 2004.
129
Sec 3(1) (a) of the Traditional Authority Act 2000.
121
23
At a meeting of Traditional Leaders in 2001, one of the resolutions was that all traditional
communities were to draft their constitutions and to write up their customary law.130 Many
communities complied with this resolution by starting a process of assessing their laws and writing
them down. However, it was noted that people were not aware of the relevant legislation such as the
Traditional Authorities Act 25 of 2000 and the Community Courts Act 10 of 2003 because the law
had been passed without consultation and participation of the targeted group.131
According to article 3(1) of the Constitution, Namibia’s official language is English. However, article
3(2) allows for the use of other languages. Articles 11(2) and 24(2)(a) of the same instrument protect
the right of a detainee to be addressed in a language which he or she understands.
Article 27 of the ICCPR protects the right of linguistic minorities to use their own language; article 26
of the ICCPR and article 2 of the ACHPR forbid discrimination on grounds of language.
In line with government policy to provide mother tongue education for grades one to three, the Nyae
Nyae Village School Project (VSP), which is an integration of traditional, culturally-appropriate
mother-tongue education with formal education, has made a difference in indigenous people’s lives.132
The project was established through collaboration by local NGOs and the former Namibia Ministry of
Education and Culture133 in the early 1990s in response to Ju’hoansi children’s lack of participation in
the government schools of East Tsumkwe District.134 Further, Gquaina Primary School encourages
cultural diversity and employs teachers who speak the Ju’hoansi language and provides mothertongue education for Ju’hoansi students in Grade 1.135
The use of indigenous languages in the media is common. However, discrimination against
indigenous peoples in the job market is a reality because jobs are advertised in English and not in
indigenous languages. A limited knowledge of English also restricts access to justice and social
facilities.136 The Namibia Constitution, the international instruments referred to above and its
educational policies, protect the language rights of all Namibians. The realisation of the language
rights, particularly mother tongue education at lower primary school, faces serious challenges.
According to the Ministry of Education, the development of user-friendly orthographies of the
phonetically complex San languages presents serious challenges. Efforts are continuing with the
assistance of professional linguists and anthropologists to provide grammatical training in linguistic
methods to young San who may contemplate becoming scholars of their own languages. As a result,
mother-tongue education has been introduced in very few schools in the Tsumkwe District. It is hoped
that more mother-tongue teachers will be trained and mother-tongue education be provided in more
San schools at the basic level (Grades 1 – 3) in the near future. The government values developing
skills of critical thinking, as well as promoting retention of endangered languages and heritage.
In the justice system, interpreters are provided to ensure that persons who are part of the proceedings be they accused persons or litigants - are able to participate and follow the proceedings.
The right to practice the religion of one’s choice is protected by article 21(1)(c) of the Constitution of
Namibia; article 8 of the Charter and articles 18 and 27 of the ICCPR. Article 5 of ILO Convention
169, which caters for religious and spiritual freedoms, would have reinforced the protection if
Namibia had ratified that Convention. In a communication to the Human Rights Committee,
Diergaardt v Namibia,137 submitted on behalf of the minority Rehoboth community, its leader,
Diergaardt, alleged that a government circular prohibiting the use of the Afrikaans language in any
130
131
132
133
134
135
136
137
As above.
As above.
Hitchcock & Vinding in Hitchcock & Vinding 11.
Currently the Ministry of Education.
As above.
IWIGIA briefing on Namibia, July 2005.
Namibia at http://www.tlfq.ulaval.ca/ax/afrique/namibie.htm (accessed on 20 January 2007).
Communication 760/1997, UN Doc CCPR/69/D/760/1997 (6 September 2000).
24
written or oral communication between civil service and the Namibian citizenry discriminated against
this Afrikaans-speaking community. After its independence in 1990, in a quest for nation-building and
to undo its colonial history, English was made the only official language of Namibia. The
communication states that the Rehoboth are Afrikaans-speaking, and that according to the 1991
census, English was the mother tongue of only 0.8 per cent of the Namibian population.138 In its
majority opinion, the HRC found a violation of article 26 on the basis that the government circular
was ‘intentionally targeted against the possibility to use Afrikaans when dealing with public
authorities’138 and recommends that the government must allow its officials ‘to respond in other
languages than the official one in a non-discriminatory manner’.139
There are no formal requirements for the registration of religious organisations in the country. The
practice of religious and spiritual freedom is common in the San community, where the spiritual
world is often understood to play a role in a person’s health and in most cases spirit mediums are
engaged in the healing process.140 However, the lack of participation of indigenous people in
government projects affecting their communities impacts on their religious and spiritual freedom. The
Kapika v Government of Namibia case141 supports this view. In that case, the government intended to
construct a dam but the community was opposed to this move through the Legal Assistance Centre,
since they were not consulted. The construction of the dam would flood 160 ancestral graves which
were local points for defining identity as well as being centres for important religious rituals.142 The
state should take appropriate measures to avoid anything that would adversely affect spiritual and
religious freedom by giving attention to indigenous peoples’ culture and religion. It is hoped that the
government programme, headed by the Deputy Prime Minister, will mitigate the repetition of similar
incidents in future.
2.7
Education
Missionaries introduced western formalised education in Namibia during the 19th century. The main
purpose of this education was to teach Namibians how to read the Bible and prayer books.143
Article 20 of the Constitution guarantees the right to education. Only primary education is compulsory
and free until a child attains the age of 16 years. The government has interpreted this to mean that a
child receives free education up to the completion of Grade 10. The right to education in general is
also part of the state policy provided for by Chapter 11 of the Constitution.
The Namibian Education Act of 2001 provides for access to impartial, quality and democratic national
education.144 This policy introduced mobile schools for the Himbas, satellite schools for the San (in
accordance with their nomadic life-style) and a national school feeding programme for poor
communities.145 Moreover, the Policy on Teenage Pregnancy allowed the readmission of girls to
school after giving birth.146 However, the education system suffers from an inequitable allocation of
resources to the different regions.147 Furthermore, the implementation of the right to education is
hampered by poverty in indigenous communities.148 Nevertheless, the Namibian government has one
of the best practices in Southern Africa as far as the integration of indigenous language in the
138
Para 3.4.
Para 10.10. In the view of the minority members (dissenting opinions of HRC members Amor, Ando and, joining in a dissenting
opinion, Bhagwati, Colville and Yalden), it is more appropriate that deference be given to the language policy adopted by a sovereign state.
One of the consequences of designating one language as official is that non-official languages are treated differently. Although the Circular
only prohibits the use of Afrikaans, it should not be understood as singling Afrikaans out for less favourable treatment, but as an indication
that all non-official (tribal) languages are dealt with on the same footing.
139
Para 12.
140
Daniels 52.
141
As above, 141.
142
As above.
143
EM Amukugo (1993) Education and politics in Namibia - past trends and future prospects 19.
144
J Mutorwa Namibian Minister of Basic Education, Sport and Culture at the International Confereence on Education; Geneva
2004.
145
As above.
146
As above.
147
As above.
148
Daniels 56.
138
25
curriculum is concerned,149 as observed in the Nyae Nyae Village School Project (VSP) mentioned
above, which integrated traditional and culturally-appropriate mother-tongue education with formal
education. This justifies why the Namibia’s MDGR commended the state for its ‘increasing efforts
towards marginalised groups, including the San and Ovahimba, both indigenous people.150 However,
in spite of this positive development, most indigenous people, especially women and children, have
no access to education. They are unable to pay school fees for secondary school learners and to
purchase uniforms due to the household focus on the acquisition of food.151 To solve this problem,
NGOs and the Ministry of Education are providing the necessary resources.152
Another problem experienced by indigenous peoples and the San in particular, is a lack of clear
management of the growth of enrolment. While the number of schools educating San children has
increased from 116 in 1994 to 181 in 1998, the greater part of this growth has been in classrooms
educating less than ten San children; San students being always in the minority. The result is that
numerous San children are confronted with ethnically-motivated mockery from other students and
even teachers which, certainly, encourages lower attendance and a higher drop-out rate.153
In schools where the San are in the minority, complaints of bullying and teasing at the hands of other
students for ethnic reasons cause huge drop-out rates or lead San students to hide their identity.154
Some teachers treat San children and their parents in a way that could alienate them from the formal
education process.155 Aware of the gravity of the problem, the Namibian Ministry of Education has
implemented the Fawena Project, aiming to integrate the San into national life by providing them with
relevant, culturally-appropriate and functional basic education with a special focus on the education of
girls.156 At present the Namibian government with the financial support of the Ambassador’s Girls’
Scholarship Programme (USAID-funded project) is assisting 950 girls, of which 150 are San girls, to
attend primary schools. In April 2008, the Deputy Minister of Education, Dr Becky Ndjoze –Ojo,
indicated that she was informed that many San girls participating in the programme ‘Continue to
Excel in School’.157
Furthermore, Gqaina Primary school, a government-subsidised school, has been established and
cultivates respect for linguistic and cultural diversity.158 The school employs a teacher who speaks the
Ju/’hoansi language and offers mother-tongue education for Ju/’hoansi students in Grade 1.159 These
factors increased attendance at school by the minorities. However, in spite of these positive
developments, a very small proportion of indigenous people have the choice to enrol in a school
where their culture is respected because mother-tongue education is provided only at two schools.160
In order to enhance the education of San children, under the San Development Programme the
government has launched Early Childhood Development Centres (ECDC) for San children to provide
access to pre-primary education. Good early childhood development helps a child to grow into a more
knowledgeable and confident person. The Deputy Prime Minister’s office is assisted in this
undertaking by the Ministry of Education, UNESCO and the Icelandic International Development
Agency (ICEIDA).
149
Hitchcock and Vinding in Hitchcock & Vinding 11.
‘Namibia Millennium Development Goals, 2004’ Government of Namibia 14 14 (August 2004).
Available at
www.undg.org/documents/5307-Namibia MDG Report 2004.pdf (accessed 10 January 2010).
151
Daniels 56.
152
As above.
153
Suzman 118.
154
Ministry of Basic Education and Culture (1988) 23 quoted by Suzman 127.
155
Le Roux W (1999) quoted by Suzman 127.
156
Improving
Girls’
Academic
Performance:
Fawe
Namibia
and
the
San
Girls
at
http://www.fawe.org/Fawe5thGA2002/Documents/G.A.5.ImprovingGirlsAcademicPerformanceNamibia.pdf (accessed 25/6/2007).
157
New Era 23 April 2008.
158
IWIGIA Briefing on Namibia-July 2005 6.
159
As above.
160
As above. The numerous fees, which include fees for uniforms, books, boarding costs, and school improvement, place a heavy
burden on students' families and preclude some children from attending school. http://www.state.gov/g/drl/rls/hrrpt/2006/78749.htm country
reports on human rights practices. Released by the Bureau of Democracy, Human Rights, and labor. March 6, 2007.
150
26
Under the San Development Programme, a pilot literacy project was launched by the Deputy Prime
Minister on 21 September 2007 for San pensioners in Tsumkwe to complement the efforts of the
national Literacy Programme of the government to specifically address the issue of literacy amongst
San pensioners. It is envisaged that, by the end of the programme, pensioners will be able to count the
money they receive as pensions and that they will be able to use their meagre resources wisely. The
pilot project was sponsored directly under the San Development Programme Fund and donations from
UNESCO. The project will be rolled-out to other regions.
A National School Feeding Programme (NSFP) was introduced by the Ministry of Education in the
Kunene (Opuwo) and Otjozandjupa (Tsumkwe) regions in an effort to attract children who would
otherwise be unable to attend school because of hunger.
Under the San Development Programme, the Office of the Deputy Prime Minister launched the ’Back
to School and Stay at School’ campaign for San children. Under this campaign, a Students Financial
Assistant Fund Programme was put in place. During the year 2008, some 65 San learners benefited.
This includes the sponsorship of learners at various stages of their education, ranging from primary
school through to university.
2.8
Land, natural resources and the environment
Land in Namibia is widely regarded as a prerequisite for successful rural development, and poverty
alleviation. Access to land is seen as necessary for the provision of opportunities to sustainable means
of livelihood and the enhancement of the dignity, well-being and economic empowerment of
previously-disadvantaged groups and communities.
In terms of article 100 of the Constitution of Namibia, all non-privately-owned land and natural
resources vest in the state. As all communal land vests in the state, the state can in its discretion
change the use of any communal land. It can establish game reserves or conservancies of wildlife on
any communal land in terms of the Nature Conservation Act. In Namibia, game reserves and parks
belong to the government and are managed on its behalf by the Ministry of Environment and
Tourism.161 Some of them are: the Bwabwata National Park; the Mahango Game Reserve; and the
Etosha National Park. The establishment of game parks obviously has a serious impact on the
occupants of the communal land in question as this places restrictions on both land use and access to
wildlife resources. The Hai//om and the Etosha National Park case illustrates this negative impact on
indigenous peoples. The Hai//om, a San community, originally owned the area known as the Etosha
National Park. The park was declared national property in 1927 and the Hai//om were evicted in 1953
without compensation. In 1999 members of their community held peaceful demonstrations at the park
gates in order to raise awareness about their plight of landlessness. Many were arrested but the
charges against them were later dropped. The government agreed to negotiate with their chief
regarding alternative land for resettlement. The process was delayed because of leadership disputes in
the community, but in March 2007 the Minister of Environment and Tourism handed over two farms
adjacent to the Etosha National Park to the Hai //om community and promised that an additional four
farm would be allocated to the community.162
During South Africa’s occupation, each tribal group was given a communal area or ‘homeland’.
These are lands held by all Namibians without distinction between indigenous and Bantu people.163
The groups have land tenure, and use their respective lands without rights to property or ownership.
The policy of allocating land to them was aimed at weakening the non-white population economically
and politically and to ensure a permanent and cheap labour force for white enterprises.164 Though
these lands are under native occupation, the state claims that it owns them, creating an ‘indigenous
161
Namibian game reserves at www.sa.venues.com.
This case was not reported and was quoted from C Daniels’ Chapter; n 71 above, 29; www.mg.co.za/article/2007-03-23-namibiagives-san-longlost-land-near-etosha.
163
Harring 64.
164
As above.
162
27
land right’ problem by ignoring the claim of indigenous people based on ancestral occupation of the
land.165
By law, the state has the right to expropriate land in the public interest.166 In order to resolve the
problem of landlessness, the Agricultural Land Reform Act 6 was passed in 1995. In section 2 it
provides for the redistribution of land to Namibian citizens who do not own or have the use of
agricultural land.167 Foremost on the list are Namibians who have been socially, economically and
educationally disadvantaged by past discriminatory practices; San and farm labourers are specifically
included as vulnerable groups. The Act also establishes a Land Reform Advisory Commission and a
Land Tribunal. However, the land reform process has been slow and largely ineffective in delivering
the promise of land to indigenous people in particular. It is argued that the process has been hampered
by inadequate funding by the government. Attempts to reduce the market price of land and to free up
more land using ‘market mechanisms’, such as taxes and permits to limit demand,168 did not achieve
much in terms of transferring land to indigenous people.
In most cases, beneficiaries of land transfer joined resettlement schemes after having been evicted
from commercial farms. This has caused many of the projects to become mainly social welfare
projects, providing free accommodation and food. Nearly all the beneficiaries have worked as farm
labourers and their level of formal education is low. Resettlement project beneficiaries, especially
those from special needs groups, usually do not have adequate training to organise and manage their
own affairs.169
Although Namibia is party to the Convention on Biological Diversity (CBD), the implementation of
the land reform programme does not take into account the CBD, which requires that the impact of
development projects on the environment be considered. For example, in some instances where
ground water investigations were conducted by the Department of Water Affairs (DWA), rates of
abstraction were found to be unsustainable. In addition, resettlement schemes do not have any sort of
grazing-management systems in place, nor have any related beneficiary training been provided.170
Article 100 of Namibia’s Constitution vests ownership of all non-privately owned land and natural
resources in the state:
Land, water and natural resources below and above the surface of the land and in the continental shelf
within territorial waters and the exclusive zone shall belong to the state if they are not otherwise
lawfully owned.
Article 95(1) of the Namibian Constitution binds the government.
to adopt policies aimed at the maintenance of ecosystems, essential ecological processes and
biodiversity, and the utilization of living natural resources on a sustainable basis for the benefit of all
Namibians, both at present and in the future.
The Namibian draft legislation regarding access to genetic resources and the associated traditional
knowledge (Draft Legislation on Access to Genetic Resources) provides that:
(1)
The ownership of all genetic resources vests in the state.
165
As above.
Art 16(2) Constitution of Namibia.
167
Sec 2 Agricultural Land Reform Act 6 of 1995.
168
D Oldipupo Kuranga ‘Moving Forward with Land Reform’ Columbia University honorable Mention Essay – Development; 2004
National Undergraduate Research Contest in Agricultural, Environmental and Development Economics.
169
B Karuuombe The land question in Namibia – still unresolved – Paper presented at the land and livelihoods in Eastern and
Southern Africa Seminar – Cape Town, 27-31 January 2003.
170
Land Reform and Poverty Alleviation: Experiences from Namibia Wolfgang Werner Namibian Economic Policy Research
Unit.
166
28
(2) The ownership of all traditional knowledge and technologies associated with any genetic resource
vests in the indigenous or local community who holds such knowledge.171
During the colonial period, there was a ‘red line’ or veterinary fence placed between communal areas
and the so-called police areas to avoid the spread of animal diseases from communal areas in the north
to the other parts of the country.172
The Constitution provides for the right of all Namibians to have access to property.173 It also allows
the state to expropriate property in the public interest, subject to compensation.174 However, the
circumstances under which, and the procedures whereby this should be undertaken, are unclear, and
do not foresee adequate consultation mechanisms.
The Nature Conservation Amendment Act 5 of 1996 provides for the establishment of conservations
of wildlife in communal areas. Section 1 of the National Guideline on Forest and Fire Management of
31 March 2001 reads:
Namibian forests are considered natural from God. They are therefore for the benefit and use of the
Namibian nation and its recreational values are to be enjoyed by the rest of the world.
The United Nations Declaration on the Rights of Indigenous Peoples affirms indigenous peoples’
rights to ‘own, develop, control and use land they traditionally owned or otherwise occupied or used’.
Applying this provision, the administration of indigenous peoples’ lands, as well as the level of rights
that they exercise over those lands in Namibia, may be questioned. Section 17(1) of the Communal
Land Reform Act reads:
Subject to the provision of this Act, all communal land areas vest in the state in trust for the benefit of
the traditional communities in those areas and for the purpose of promoting the economic and social
development of the people of Namibia, in particular the landless and those with insufficient access to
land who are not in formal employment and or engage in non agricultural business activities.
A reading of this provision shows that restrictions may be imposed on the rights of indigenous people
to own, develop or control communal lands. In its Concluding Observations on Namibia in August
2008, the CERD Committee expressed its concern about the level of protection afforded to indigenous
peoples as regards their right to own land, and to rights over land which they occupy or have
occupied, considering national legislation to fall well below minimum standards for the protection of
the rights of indigenous peoples to own land:
The Committee reminds the state party of its General Recommendation 23 (1997) on the rights of
indigenous peoples, in particular paragraph 5, which calls on state parties to recognise and protect the
rights of indigenous peoples to own, develop, control and use their lands and territories. It therefore
encourages the state party, in consultation with the indigenous communities concerned, to demarcate
or otherwise identify the lands which they traditionally occupy or use, and to establish adequate
procedures to resolve land claims by indigenous communities within the domestic judicial system
while taking due account of relevant indigenous customary laws.175
Furthermore, national legislation which vests land and natural resources above and below the land in
the state could prove highly problematic when this conflicts with the minimum standards enshrined in
international law concerning the rights of indigenous peoples to own, develop and control the lands
they occupy or otherwise use.
171
172
173
174
175
As above.
Daniels 62.
Art 161(1) Constitution of Namibia.
Art 16(2) Constitution of Namibia.
CERD, Concluding Observations: Namibia, August 2008, UN Doc. No.: CERD/C/NAM/CO/12 para 18.
29
As mentioned earlier, before independence many people in Namibia were settled in communal areas
where they had no rights to property or lands in the broader sense. The situation has not substantially
changed because articles 100 and 124 of the Constitution provide that the land, water and natural
resources of Namibia belong to the state if they are not otherwise lawfully owned.
The Kapika v Government of Namibia or Himba and the Epupa Hydropower case176 is another
illustration of the absence of security of tenure of communal land systems. After the Himba had been
living on a piece of land for hundreds of years, they were asked to leave because the government
needed the land for a dam-construction project. Despite their right to development being at stake, the
Himba’s interests were not considered. The Himba opposed the project and sought the assistance of
the LAC. A meeting between LAC staff and the community was dispersed by the police in 1997.
Clement Daniels comments that:
the police action was clearly in contravention of articles 21(d) (freedom to assembly peacefully); 21(j)
(freedom to practice any profession) and 13 (right to privacy) of the Namibian constitution.177
Only once LAC had obtained a High Court order was the meeting between the community and their
lawyer allowed to take place. At present, the project is on hold, which is an implicit victory for the
Himba people.178
Article 95 of the Constitution provides for the right to a safe environment. The Game Product Trust
Fund Act 7 of 1997 establishes a trust to support the conversation and management of wildlife
resources and rural development. It also establishes a Game Product Trust Fund Board. The Fisheries
Act 29 of 1997 provides for the conservation of marine ecology, the orderly exploitation,
conservation, protection and promotion of certain marine resources and for the control of sea
fisheries. The objectives of the Environmental Management Act 7 of 2007 are to ensure that people
consider the impact of their activities on the environment, encourage broad participation in
environmental impact studies and ensure that the findings of environmental impact-assessments are
seriously considered in any development.
The Ministry of Environment and Tourism’s mission statement is to
Maintain and rehabilitate essential ecological process and life-support systems, to conserve biological
diversity and ensure that utilization of natural resources is sustainable for the benefit of all Namibians
both present and future as well as for the international community.179
The mission statement of the Directorate of Environment Affairs, which was established to encourage
environmental management and protection, is to:
Promote environmental protection, environmental planning and environmental coordination to
support the sustainable and equitable use of natural resources and national development, and to
protect the environment and human welfare from unsustainable, unhealthy and inappropriate
practices.
Though the text of the Nature Conservation Amendment Act of 1996 empowers indigenous people,
the implementation of development projects by the government does not ease things for them, as they
are not consulted in the projects. In Tsumkwe District West, where a conservancy was established, the
government decided unilaterally to build a refugee camp in the area, prompting the indigenous people
to raise their concerns. Through a speaker they said, ‘Our conservancy is our hope, but the refugee
176
Kapika v Government of Namibia (unreported) September 1997. See also A Corbett, Legal Assistance Centre, Namibia ‘A Case
Study the Proposed Epupa Hydropower Dam in Namibia’ 1999.
177
Daniels 54.
178
As above.
179
The Ministry of Environment and Tourism mission statement, www.grnnet.gov.na (accessed 17/01/2007).
30
camp will affect our resources, wood, grass, game, bush food and places we need to make camps for
tourists’.180 Fortunately the government has not proceeded with this plan, due to the fact that many of
the Angolan refugees returned home after the civil war in their country ended.
The CERD Committee has also expressed concern about the impact of the establishment of
conservancies on indigenous peoples – in particular their impact on the ability of indigenous local
communities to participate in the management of new conservation areas, as well as the ability of
those communities to pursue their traditional way of life in such parks. It requested measures to be
taken to ensure that national parks established on the ancestral lands of indigenous communities allow
for sustainable economic and social development compatible with the cultural characteristics and
living conditions of those indigenous communities. Furthermore, it also expressed concern that those
communities whose lands were taken before 1990 have not been able to receive redress for this
dispossession, and requested the government to take steps to ensure the return of those lands and
territories, or to provide adequate reparation measures.181
Furthermore, during a feasibility study of the Epupa Hydropower Project in 1997, it was discovered
that the impact of the project would be that the Himba were going to lose valuable land resources and
110 permanent dwellings.182 The loss of riverine forests, a crucial source of grazing and browsing in
dry season, would destroy the social and economic status of the Himba. The flooding of 160 ancestral
graves would be a threat to their culture since a grave is a focal point for defining identity, social
relationships and the relationship with the land, as well as being a centre for religious rituals.183 The
health risks related to the realisation of the project were malaria, and HIV/AIDS.184
Instead of taking appropriate measures to protect the environment, the state, through the Directorate
of Environmental Affairs, did not address indigenous people’s issues and ignored their basic rights as
far as the environment was concerned. However, the ratification of the CBD was a step in the right
direction.
Measures thus far taken by the Namibian government to facilitate land distribution and reform include
the establishment of the Ministry of Lands, Resettlement and Rehabilitation (MLRR), the enactment
of the Agricultural (Commercial) Land Reform Act of 1995, the National Resettlement Policy of
1997, the National Land Policy of 1998, and the Communal Land Reform Act 5 of 2002. The purpose
of the latter piece of legislation is to ‘provide for the allocation of land rights in communal areas,
establish communal land boards and prescribe the powers of Chiefs and Traditional Authorities and
boards with regards to communal land’. This Act seeks to regulate the land tenure relationship
between the state and those occupying communal land owned by the state. It recognises the existence
of communal area conservancies and by extension the role they play in conservancies.
It is within the above policy and legislative framework that an assessment of the protection and access
to lands rights by indigenous people of Namibia and in particular the San may be made. In regard to
land tenure, of the six broader Namibian San communities, only two, namely the !Kung and
Ju/’hoansi of Tsumkwe District, today control their ancestral land. The conservancies established on
their land, and managed by them, have given them access to wildlife and other natural resources.
These conservancies have given the communities the responsibility to care for the environment and
animal resources for their own benefit in the form of income and food while they continue with some
agricultural activities.
In its General Observations on Namibia during its August 2008 Session, the CERD Committee, whilst
acknowledging the difficulties within a democratic system in implementing land reform policies with
180
181
182
183
184
San speaker at Etamelo community meeting quoted by Pakklepa & WIMSA in Hitchcock and Vinding 93.
CERD, Concluding Observations: Namibia, August 2008, UN Doc. No.: CERD/C/NAM/CO/12 para19.
As above, 218.
As above.
As above.
31
a view to addressing existing imbalances, expressed its concern about the apparent lack of clear and
transparent criteria for the redistribution of land in practice. In particular, it encouraged the
government to ensure the equal exercise by the different ethnic communities of the rights enshrined in
the Convention within the framework of a democratic system. Specifically, concern was expressed
about the impact of such policies on vulnerable groups.185
The establishment of conservancies has also assisted in community-formation amongst the
participants as well as providing them with a core basis for making a living. It is also a way of
empowering San communities to access land and natural resources. It is, however, too early to
conclude that this is a success story. The communities in these conservancies are not yet selfsustaining. They still need supplements from government and NGOs. In addition, the overall legal
framework protects only the use, and some management rights of indigenous peoples as regards land.
It does not protect the rights of indigenous peoples to the ownership of land (including collective
land) in the full sense that it is recognised in the international legal framework for the protection of
their rights.
The Khwe in West Caprivi lost their food security and had become dependent on irregular food aid
from the government following the conversion of their traditional lands into the Bwabwata National
Park. This had placed stringent restrictions on where people could live in the national park and on the
kind of activities that they could pursue there. They are not allowed to keep cattle in some parts of the
new national park, such as Masambo and Omega III Villages and there are limits placed on
agricultural activities. They are not permitted to hunt wild animals within the national park and were
restricted to gathering veld fruits such as devil’s claw. Where they do grow food crops, these are often
destroyed by wild animals.
The intervention by the Office of the Deputy Prime Minister facilitated discussions between the
Ministry of Environment and Tourism and the San communities living in West Caprivi. The result
was the establishment in 2006 of community conservancy programmes, managed by the San
Karamasyan Association.186 This means that the San now receive benefits from trophy-hunting in the
national park.
The Hai//om in north-western Namibia still live on their ancestral land, but lost control over it when it
was absorbed into the Etosha National Park and commercial farms. The ancestral lands of the !Xo and
‘Ju/’hoansi in Omaheke Region in South-eastern Namibia have all been turned into communal lands
or commercial farms which employ some San as farm labourers, historically paying either a very
small wage or in kind. The minimum wage that was introduced has not assisted them. Farmers either
ignore them or push the San out of employment and off their farms, thereby driving them into
homelessness or squatting.
It is hoped that the needs assessment conducted by the Deputy Prime Minister earlier will assist the
government in providing more meaningful solutions to the plight of Hai//om, !Xo and !Ju/’hoansi.
However, it will be essential that any assistance provided to the San take into account their own
aspirations, needs and traditional ways of life, occupations and cultures.
2.9
Socio-economic rights
A number of measures have been undertaken in order to address various aspects of social and
economic rights in Namibia, as well as to progressively realise economic and social development.
Nevertheless, there are relatively few desegregated data available for assessing the impact of these
measures on indigenous peoples. Some concern has also been expressed that despite positive
measures taken, discrimination on the grounds of ethnicity persists in the enjoyment of economic,
185
186
CERD, Concluding Observations: Namibia, August 2008, UN Doc. No.: CERD/C/NAM/CO/12 para 19.
The San Development Programme Report 2007/2008.
32
social and cultural rights.187 In addition, whilst considerable effort is being put into development
programmes for indigenous peoples, many of these programmes aimed at the San are comparatively
integrationist in their approach. The CERD Committee, for example, has expressed some concern that
integration policies and programmes might be detrimental to the protection of ethnic and cultural
diversity of these communities. A description of some of the measures taken and their relevance for
indigenous peoples is provided below:
(a)
Housing
Article 95 of the Namibian Constitution, which addresses the welfare of Namibians, guarantees an
acceptable standard of living in its sub-section (J) as part of state policy.
The Namibian Government made housing one of its development priorities. It approved a National
Housing Policy in July 1991, called the Build Together Housing Programme, which encouraged
partnerships between the public, private and community sectors in housing development.188 The
results of the 1991 census show that 27 per cent of the urban population of Namibia live in local
authority areas. These are made up of village and town councils, municipalities and the city council of
the capital Windhoek. They are the driving force behind the Build Together National Housing
Programme through local implementation committees, called Community Housing Development
Groups (CHDGs).189
Beneficiaries of the graduated interest rate subsidised housing loans provided by the banks are lowincome families earning less than N$1250.00 (US$420) in formal or informal employment,
communities living in squatter areas or shacks and those without access to middle income housing
from parastatals or banks and buildings societies. The loans are paid off in 20 years at low interest
rates.
Local authorities have been instrumental in dealing with rapid urbanisation and migration into urban
areas by creating reception areas (Incremental Development Areas) under the Build-Together
Programme. New-comers to urban areas are given a place to live under conditions where building and
planning regulations are relaxed. In these ’designated areas’, shelter can be built with any local
materials until such time as the economic conditions of the people have improved to consolidate the
settlement.190 This policy earned Namibia an award at the UN in 1996.191 It is notable that the policy
does not mention indigenous people.192
Indigenous people who are resettled usually choos to return to white-owned farms if free food is
provided.193 Extreme poverty appears to be an obstacle to habitat policies in indigenous communities.
Though the Build Together National Housing Programme is a commendable policy, beneficiaries
need to earn at least N$1250.00 and be employed and they also need some sort of education, or
language ability to understand the policy. It is safe to say that though indigenous people are protected
by the right to equality, they do not meet the minimum requirements to access the CHDG.
The allocation of 81 housing units in three villages to the Ovatjimba and Ovatue communities in
August 2008 is a welcome sign and an indication of government’s commitment to provide housing to
marginalised indigenous people.194
(b)
Nutrition and health
187
CERD, Concluding Observations: Namibia, August 2008, UN Doc. No.: CERD/C/NAM/CO/12 para 20.
Enabling
Shelter
Strategy:
Review
of
experience
from
two
decade
of
http://www.builddaid.org/docs/enablingSheltStrat.pdf (accessed 31/7/2007).
189
As above.
190
As above.
191
UN (4 June 1996, press release, twelve awards presented for best practices by the Secretary-General).
192
As above, 193.
193
Suzman 93.
194
New Era 16 June 2008.
188
33
implementation
at
Article 95(a) and (e) of the Constitution of Namibian obliges the state to enact legislation to ensure
the health needs of its people and to provide access for every citizen to public facilities including
health facilities.
Since most San people occupy lower ranks on the social ladder, their poverty and vulnerability make
them more prone to infectious but treatable diseases such as tuberculosis and malaria.195 HIV/AIDS is
reported to be prevalent among San communities. This could be explained by the fact that San
communities that hitherto were isolated from other ethnic groups have been exposed to these groups.
Tourism has been encouraged in most San communities, further exposing them to visitors from other
areas. To make matters worse, the San have the worst access to health care of all Namibians with
more than 80 per cent of them living more than 80 kilometres (about an hour away) from any sort of
health facilities. Moreover, these facilities are very expensive to attend. They rely on mobile outreach
services which are often ill-equipped to deal with the complicated problems the people could
potentially face.
The mobile clinics make irregular visits to San communities and there are no arrangements for
emergencies. In some cases the staff of the mobile units hardly speak any of the San languages, giving
rise to the likely risk of mis-communication and wrong diagnoses.
The majority of health problems faced by the San are related to their poverty and marginalisation.
Diseases such as AIDS, tuberculosis and malaria potentially can affect all Namibians, but due to a
lack of information, a low standard of living and the unavailability of adequate treatment, the impact
on the San is greater than upon the ordinary Namibian.
The San community is the only ethnic group in Namibia whose health status has declined since
independence. This could be explained by the loss of their land and means of livelihood as huntergatherers, resulting in a rapid decline into destitution and a cultural breakdown. Poverty and a high
unemployment rate, coupled with the fact that they have lost their original sources of food have
resulted in their dependence almost entirely on government food aid. They are not able to feed
themselves with the result being persistent hunger, leading to poor feeding which affects their immune
system and resistance to disease.
According to Health Unlimited,196 malaria, TB, HIV/AIDS, alcoholism, teenage pregnancy,
pneumonia and gastro-internal problems affect the San community.197 Namibia’s HIV/AIDS infection
rate is 19 per cent, and the vulnerability of indigenous people is high because of their extreme poverty
and lack of education.198
In November 2005, a group of San people were trained by WIMSA on how to carry out HIV
community assessment programmes.199 In the Nyae Nyae Conservancy, solar-powered radios were
distributed to allow the community to receive the Namibian Broadcasting Corporation local language
radio station and to ensure that HIV/AIDS information was received.200 This measure was backed by
the training of 16 local people as HIV/AIDS ‘peer educators’.201 However, the allocation of funds to
202
tackle the disease was not directed at indigenous civil society organisations and rural areas.
The UN CERD Committee has expressed its concern about the high rate of HIV/AIDS among the
San, as well as the comparatively low life-expectancy in these communities. It recommended, among
195
Daniels 52.
UK-based NGO that provides health care to rural communities.
197
As above, 237.
198
IWIGIA The Indigenous World 2006 504.
199
As above.
200
As above.
201
As above.
202
K Laird (2006) Desk Review of the Millennium Development Reports of Countries with indigenous peoples
http://www.un.org/esa/socdev/unpfii/ documents/MDGRs2006.pdf (accessed 31/7/2007).
196
34
other things, to the government in 2008, that it must enhance its efforts in poverty-reduction for
indigenous communities, in particular as regards education and health.203
The San community is renowned for its traditional medicine.204 In the healing process the human and
spiritual worlds are often understood to play a role in person’s health and in most cases spirit
mediums are engaged.205 Traditional medicine is used to complement western medicine which
includes mobile health facilities.206 However, these modern health facilities and information about
modern diseases are inadequate.207
The Namibian Red Cross Society provides primary health care to the Himba. This includes
information on personal and household hygiene, preventive health education and water and sanitation
awareness programmes. In spite of these developments in Namibia, no one can take the state to court
for its failure to protect his or her health as health is only provided for as a principle of state policy,
dependant upon the availability of resources.
(c)
Social welfare
Article 16 of the Namibian constitution protects the right to property; article 95 promotes the welfare
of the country’s people.
In Namibia there exists a large gap between the rich and the poor.208 The gap is between the urban and
rural populations, and also among disadvantaged groups. The Namibian MDG report mentions that,
’the per capita income in a household where the mother-tongue is German is 23 times higher than a
household where the main language is San’.209
In his inaugural address, the president of Namibia, Hifikepunye Pohamba, said:
We pledge to you the people of Namibia that we will continue to devise programs and projects aimed
at meeting the expectation and aspiration of our people who have constantly given SWAPO the
mandate to govern since independence.210
A denial of their land and cultural rights rights and discrimination hamper the realisation of
indigenous peoples’ economic rights. It is difficult to exercise one’s right to a traditional economy and
a rural industry if one has no right to land and cannot participate in decisions affecting the
environment and one’s life. The Kapika v Government of Namibia case, discussed earlier, illustrates
this situation.211
The ‘red line’ established as a remedy to cope with animal disease limits the capacity of indigenous
people to participate in the national economy, as they are prevented from taking their cattle from one
market to another.212
The establishment of the San Development Programme headed by the Deputy Prime Minister and the
subsequent Report on Living Conditions and Needs Assessment of the San Communities in Namibia
by the Deputy Prime Minister and the recommendations contained therein, are positive steps,
indicating the government’s resolve to improve the well-being of the San. It is still too early to assess
the impact of the current government strategy.
203
204
205
206
207
208
209
210
211
212
CERD, Concluding Observations: Namibia, August 2008, UN Doc. No.: CERD/C/NAM/CO/12 para 21.
IWIGIA Briefing Note on Namibia - July 2005
As above.
As above.
As above.
Daniels 52 – 53.
Daniels 250.
193.
Inaugural speech of the President para 15 www.grvnet.gov.na.
218.
35
(d)
Intellectual property
Intellectual property rights are rights awarded by society to individuals or organisations over creative
work such as inventions and literary or artistic work.213 The key national instruments, such as the
Patents, Designs, Trade Marks and Copyrights Proclamation, now 85 years old, are outdated, and
were never intended to protect the intellectual property rights of indigenous people in independent
Namibia.
As WIMSA puts it, the San have suffered from ‘an intellectual hijacking’ of their traditional
knowledge.214 Intellectual property theft is organised by individuals and private companies involved
in the media and other industries.215
A two-member delegation from the World Intellectual Property Organization, Wend Wendland and
Faith Odibo, reported that intellectual property rights are absent in Namibia.216 According to their
findings in the same report, ‘property rights, especially in terms of invention, are absolutely lacking in
Namibia and call for a thorough study before such rights can be regulated’.
However, the topic of intellectual property rights is complicated by the difficulty in identifying at
what stage traditional knowledge enters the public domain. Nevertheless, with the assistance of
WIMSA, indigenous peoples can now begin to protect their intellectual property rights. For example,
a Medical Research Contract of the San of Southern Africa has been produced by WIMSA. The
signing of this contract binds all researchers and media representatives who work with the San to
respect the heritage of the San and not to utilise the research or information obtained without
permission from the San.217 The Handbook on San Intellectual Property Rights, produced by
WIMSA, is another interesting development in the protection of the San’s intellectual property rights.
What is disheartening, however, is the absence of efforts by government to promote and protect the
intellectual rights of indigenous peoples, either through enacting legislation or the dissemination of
information.
2.10
Gender equality
Article 10 of the Namibian Constitution protects everyone’s right to equality and their right not to be
discriminated against on any grounds. Article 23(3) empowers the state, when implementing
affirmative action, to have regard for the fact that women in Namibia have traditionally suffered
discrimination and that they need to be encouraged and enabled to play a full, equal and effective role
in the political, social, economic and cultural life of the nation. Article 95(1) calls on the state to enact
legislation to ensure equality of opportunities for women and to enable them to participate fully in all
spheres of Namibian society. The Namibian government adopted the African Union Solemn
Declaration on Gender Equality in Africa at the 3rd Ordinary Session of the Assembly of Heads of
States and Government in July 2004 in Addis Ababa, Ethiopia. It domesticated Goal 3 of the
Millennium Development Goals Promoting Gender Equality and Empowerment of Women through
the elimination of gender disparity in education. However, there are fundamental regional disparities
among boys and girls in literacy and enrolment rates in regions inhabited by indigenous peoples.218
213
Daniels 62. Namibia has a broad national legislation addressing intellectual property rights. Some of them are: Patents, Designs,
Trade Marks and Copyrights Proclamation 17 of 1923; the Trade Marks in South West Africa 48 of 1973 in force since January 1974; and
Copyrights and Neighbouring Rights Act 6, April 1994. In addition, Namibia is a member of the World International Property Organization
(WIPO) and signed the WIPO Convention in 1991, the Paris Convention (Industrial Property) in January 2004, and the Berne Convention
on Literary and Artistic Works in 1990. In Namibia, the Ministry of Information and Broadcasting Copyrights Services caters for intellectual
property rights through its copyright office. The Industrial Property Office, which is part of the Ministry of Trade and Industry, is another
institution in charge of intellectual property rights.
214
M Mosimege ’Intellectual property and indigenous knowledge system: international development and implication for Southern
Africa’ paper presented at the CODATA workshop on 5 September 2005 in South Africa. See [email protected].
215
WIMSA http://www.wimsanet.org/advneet culture.asp (accessed 10 January 2007).
216
As above.
217
IPR absent in Namibia http?www.africannews.org/PANA/news (accessed 20 January 2007).
218
WIMSA http://www.wimsa.net.org.advnet culture.asp (accessed 20 January 2007).
36
A State Policy in the Namibian Constitution is the enactment of legislation to ensure equality of
opportunities for women to enable them to fully participate in all spheres of Namibian society. The
Namibian government, through the Ministry of Gender Equality and Child Welfare, adopted the
National Gender Policy in 1997 and the National Plan of Action on Gender in 1998, thereby
committing itself to involving women in all activities aimed at resolving conflicts. It aims, for
example, to appoint equal numbers of men and women as judges and in international peace missions.
The United Nations Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) has been ratified by Namibia. In article 12 it commits state parties to ‘… take all
appropriate measures to eliminate discrimination against women, access to health care services,
including those related to family planning’. However, though the proportion of women receiving
assistance from skilled birthing attendants has increased in recent years, there are still large regional
disparities. Indigenous peoples are located in areas cited as having fewer critical care units for
birthing complications, fewer traditional or trained birth attendants and large distances to travel to
receive healthcare.219 Consequently the assumption is that maternal mortality is higher in indigenous
communities.220
Despite their attributes and contribution to society, indigenous women suffer from discrimination,
both as women and as indigenous people subjected to extreme poverty, human trafficking, illiteracy,
poor health care and sexual violence.221 However, positive developments were introduced by the
Married Persons Equality Act which provides for a more equal say of partners in the management of
household property and common assets. It also removes the husband’s automatic common law status
as head of the household. The Act, together with the Deeds Registry Amendment Act, prevents the
sale of commercial land by one spouse without the other’s consent.222 Moreover, the Communal Land
Reform Act 5 of 2002 grants women equal rights when applying for rights to communal land. Though
the law does not address indigenous women per se, all women including indigenous women, are
brought under the umbrella of the law.
The Namibian National Gender Policy includes an ’Education for All’ document. Though this policy
promotes gender equality, there are still barriers to girls trying to access subjects that are maledominated.223 For example, there are few females in senior teaching and management positions,224 and
much still needs to be done to increase the number of women working in the private sector and for the
government.225
At the UN General Assembly WOM 15/92, members of the Committee on Gender Equality raised
numerous questions regarding Namibia’s customary laws that were detrimental to women, customary
marriages, the situation of rural and vulnerable women’s employment, education and health. An
expert wondered why the whole area of traditional authority was immune from the Convention’s
directive on equal representation.226 The law prohibits discriminatory practices against women
married under civil law, but women who married under customary (traditional) law continue to face
legal and cultural discrimination. Traditional practices that permit family members to confiscate the
property of deceased men from their widows and children still exist.227
219
As above, 250.
As above.
Indigenous
women2-UMPF2,
united
Nations
Permanent
Forum
on
Indigenous
Issues
at
http://www.un.org/esa/socdev/unpfii/women.html (accessed 3 December 2006).
222
Guide to the Communal Land Reform Act 5 of 2002 p XV (www.lac.org.na/leeds/default.htm (accessed on 28/07/2007)).
223
As above, 186.
224
As above.
225
As above 250.
226
UN General Assembly WOM/1592.
227
2005 Namibian Country Report on Human Rights Practices, released by Bureau of Democracy, Human Rights and Labour,
March 8 2006 at
220
221
37
In Namibia, indigenous women’s rights are threatened by the practice of polygamy and women are at
risk of contracting HIV/AIDS because they have no say over their own or their husband’s sexual
behaviour.228
Indigenous people are crippled by poverty and indigenous women have a duty to provide food and are
kept away from education. The lack of recognition of indigenous people in general is detrimental to
the promotion of indigenous women’s rights. Though Namibia is party to CEDAW and the Protocol
to the African Charter on Human and Peoples’ Rights on Rights of Women in Africa, it is clear that
Namibia has not done much for the rights of indigenous women. Even if CEDAW does not expressly
mention indigenous women, indigenous women nevertheless fall under its umbrella. Though the
Ministry of Gender Equality and Child Welfare and the Justice and Law Reform and Development
Commission are responsible for advocating women’s rights, it is reported that their policies are
ineffective due to a backlog of cases.229 Liz Frank, the director of Sister Namibia, a Windhoek-based
gender rights organisation, observes that legislation on women’s rights grants women rights on paper
only. She says, ‘Women don’t know about their rights’.230
In 2008, the CERD Committee expressed its concern about the high incidence of rape among San
women by members of other community, which seems to be caused by negative stereotypes,
recommending the launch of investigations into the allegations, and an increase in efforts to combat
prejudices.231
The Namibian National Gender Policy of 1997 advocates equality between men and women in all
spheres of public life. The achievement of this objective requires concerted efforts to overcome the
historical imbalances that exist between men and women, mainly arising from customary law and
practice. At the national level, great strides have been made as evidenced by the number of women
ministers (including the Deputy Prime Minister), women parliamentarians, permanent secretaries and
many other senior public figures. The equality target has of course not been achieved as yet.
With regard to indigenous women, serious challenges are yet to be overcome. The appointment of a
Himba woman, Ms Angelika Maharukua, as Deputy Minister of Gender Equality and Child Welfare
is a step in the right direction. She was a surprise choice by president Sam Nujoma for the 2nd
National Assembly of Namibia in 1995 and has remained in the National Assembly since. In May
2004, she was chosen to replace Marlene Mungunda as Deputy Minister of Women Affairs and Child
Welfare, later renamed the Ministry of Gender Equality and Child Welfare (Guide to Namibian
Politics by Graham Hopwood, Namibia Institute for Democracy, Windhoek, 2007,
http://www.nid.org.na/view_book_entry.php?book_id=115). The main challenge is overcoming
traditional practices that do not encourage women’s education and encourage women’s marriage at
any early age. The necessary legal infrastructure is in existence though there is no specific legislation
directed towards the advancement of indigenous women.
In terms of the National Land Policy of 1998, women should be accorded the same status as men with
regard to all forms of lands, either as individuals or as members of family land ownership trusts in line
with article 95(a) of the Constitution. It is not clear how this translates in practice in terms of the
allocation of land to indigenous women.
Under the San Development Programme various developmental projects for San women have been
initiated. Needle Work Projects have been initiated in the Omaheke and Oshikoto regions with the
assistance from the Ministry of Gender, Equality and Child Welfare. Preparations for a bread making
project in Tsumkwe are almost complete.
228
As above.
As above.
230
Namibia:
Inheritance
rights
still
a
thorny
http//www.plunews.org/AIDSreport.asp?ReportID=5689&SelectRegion=Southern Africa& Select Country.
231
CERD, Concluding Observations: Namibia, August 2008, UN Doc. No.: CERD/C/NAM/CO/12.
229
38
issue
at
In addition, the offices of the Deputy Prime Minister and the Ministry of Gender, Equality and Child
Welfare are preparing the launch of the Namibia San Women Association. San women committees
have already been constituted in the seven regions of the country housing San communities, namely;
Oshana, Otjozondjupa, Omusati, Oshikoto, Kavango, Caprivi and Omaheke. A San women
conference on development at which the various challenges facing San women will be discussed is
planned and will be spearheaded by the Ministry of Gender, Equality and Child Welfare.
2.11
Indigenous children
Namibia ratified both the ILO Minimum Age Convention and the ILO Worst Forms of Child Labour
Convention in 2000. In addition, the country ratified the UN Convention on the Rights of the Child in
1990, the African Charter on the Rights and Welfare of the Child in 2004, as well as the Optional
Protocol to the Convention on the Rights of the Child: Armed Conflict and the Optional Protocol to
the Convention on the Rights of the Child: Sale of Children, both in 2002.
Article 15 of the Constitution guarantees the right of children and article 20(3) protects their right to
education. Article 95(b) of the same instrument requires the state to ensure that ‘children are not
abused and that citizens are not forced by economic necessity to enter vocation unsuited to their age
and strength’. Article 9 prohibits slavery and forced labour. The Children’s Act 33 of 1960 makes it
an offence for any person who has custody of a child to ill-treat, neglect or abandon that child in such
a way that unnecessary suffering or injury to that child’s mind or body is likely to result. Article 17(1)
of the ACHPR protects the right to education.
Although the Namibian Constitution and international instruments oblige Namibia to protect
children’s rights, indigenous children in Namibia are as discriminated against as their parents.
The rural areas of Kavango, Oshikoto, and Caprivi are cited as having the highest infant and child
mortality, and each of these areas has a presence of indigenous people.232 Because of extreme poverty
in their communities, indigenous children are prepared to engage in any form of employment in order
to survive, making them vulnerable and exposed to circumstances potentially hampering their
development. Because the state does not recognise indigenous people per se, the protection of
indigenous children’s rights is still a myth in Namibia. Even if the government protects children, in
general, it does not recognise that indigenous children experience their own peculiar problems. When
indigenous children are recognised as such, policies protecting their rights may be enacted to ensure
their empowerment.
In December 2000, a Ministry of Labour report indicated that more than 16 per cent of children aged
six to 18 were working, with the majority of them (95 per cent) coming from the rural areas. Many
worked as unpaid labourers on farms.233 Often they go hungry or become child labourers or sex
workers to earn money for food. Their vulnerability often exposes them to abuse and exploitation.
According to a 1999 survey, conducted by the Ministry of Labour,234 23 per cent of all children in
rural areas were working, while in urban areas the figure stood at 2.3 per cent. The survey found that
more than half of these working children – about 40 000 – were younger than 14. Most indigenous
children are found in rural areas. Namibian does not, therefore, comply with guiding principles of
ILO Conventions 138 and 182, which forbid child labour. Though Namibia is party to major
international instruments protecting children’s rights, all children, and particularly indigenous
children,
are
still
in
a
desperate
situation.
http://www.unhcr.org/refworld/country,,,,NAM,,48caa4823c,0.html
232
233
234
As above, 250.
RECLISA, reduction child labour in Southern Africa.
Namibia Child Activities Survey or NCAS 2001.
39
In her findings in the Report on Living Conditions and Needs Assessment of the San Communities in
Namibia, the Deputy Prime Minister states:
There has been and there is perpetual criminal exploitation of the San communities, particularly their
girl child who are kidnapped and/or abducted from schools without parental knowledge and consent
for slavery cum – domestic labour for free. It adds insult to injury, that these children are impregnated
and dumped with children by working strong and wealthy black Namibians. Two cases in this regard
were noted at Onamatadiva San Settlement Centre in the Okongo Constituency of Ohangwena
Region. This is a serious violation of human and children’s rights to education and a decent future
(police to investigate and bring culprits to book).
The report states further that the exploitation does not spare male San youths who are used as cheap
labour. The report concludes that the ‘San are in dire need of strong government intervention’.
It is the recognition of the precarious situation of San children and the government’s obligation to
protect all Namibian children, under national law, international and regional instruments, which
precipitated the incorporation of the welfare of San children as a major component of the San
Development Programme. The Programme includes supporting San children by paying school fees
and giving pocket money for their basic needs, offering scholarships for San learners, the
establishment of early childhood development centres as many San children do not have access to preschools, and the improvement of conditions in schools for the San children.
Under the programme for Education for San Learners (scholarships) the Office of the Deputy Prime
Minister has launched the Back to School and Stay at School for San Children Campaign. Financial
support has been provided for San children from primary school up tertiary education. The upgrading
of schools and hostels in San communities, as well as the employment of San teachers have been
undertaken. It is still too early to assess the impact of the programme.
2.12
Indigenous peoples in border areas
Article 21 of the Constitution protects fundamental freedoms, including freedom of movement.
However, it is silent on the issue of indigenous people in border areas. Their security is not addressed.
An Amnesty International report described the situation of people on the Angola-Namibia border in
1999.235 According to the report, the Angolan Army attacked the national Union for The Total
Independence of Angola (UNITA) from Northern Namibia, with the permission of the Namibian
government. The attack led to human rights abuse in the area, which led to families and ethnic
communities being divided and refugees fleeing to Botswana.
Because neither the Constitution nor any other legislative enactments say anything about indigenous
people in border areas, these peoples’ human rights are not protected.
235
Angola and Namibia, Human Rights abuse in the Border Area; Amnesty International.
40
Part III: Conclusion and recommendations
3.1
Conclusion
In accordance with the criteria discussed earlier in this paper, ‘indigenous peoples’ is a term used in
the context of the present day international framework to identify those groups of people who
experience particular forms of systematic discrimination, subordination and marginalisation. The
principle of self-identification as expressed in ILO Convention 169 and the Report of the African
Commission’s Working Group on Indigenous Populations/Communities is a key principle to the
identification of such groups. In the context of Namibia, the San and the Himba have been identified.
The other three groups, namely, the Ovatue, the Ovatjimba and the Ovazemba, on the information so
far available, may fall within the indigenous peoples category.
The above reflects the existing legal and policy framework within which the rights of indigenous
peoples are protected in Namibia. Within the limited time and resources available, efforts were made
to assess the level of implementation and enforcement of the existing legal and policy framework in
the indigenous communities and the impact it has had on the welfare of those communities.
Within the time provided and other challenges, it was not possible to meet some of the key players
and institutions whose input may have enriched the research. The overall picture of the situation of
indigenous people in Namibia, is, however, substantially that which is reflected in this paper.
In Namibia, alienation and marginalisation are the main causes of indigenous peoples’ problems.
Indigenous peoples occupy no significant economic or social positions and remain largely excluded
from national structures. Large numbers of San communities do not have access to land. Educational
facilities remain generally inadequate and sometimes inaccessible to the San and Himba communities.
Participation in national affairs and matters relating to the determination of their own development
presents serious challenges. Access to justice is still a major challenge.
However, the Nyae Nyae School Project, the Education Act of 2001, the San Development
Programme and the introduction of mobile schools and clinics to respond to these groups’ traditional
practices and culture are examples of a commitment and a serious effort to improve the wellbeing of
indigenous peoples in Namibia. This should be emulated by other countries in Africa.
While Namibian constitutional and legislative provisions provide formal protection for all Namibian
people - including indigenous peoples - the lack of specific provisions to protect the rights of
indigenous minorities as special groups with specific needs affects the level of attention given to their
situation. These groups do not have the capacity to use the existing mechanisms to enforce their
rights. Existing mechanisms assume that all Namibians have the ability to access their rights on an
equal basis; this assumption is not true for indigenous peoples. It is hoped that the issue of providing
specific safeguards for indigenous peoples to cater for their needs will be taken on board under the
Deputy Prime Minister’s Programme.
While the establishment of conservancies and settlement projects has to a large extent provided the
beneficiaries of those programmes (the San) with access to land and natural resources, land rights for
indigenous peoples in Namibia fall far short of international standards, and many San people remain
landless and live under deplorable conditions. The hopes for land tenure of those who are part of
resettlement projects are yet to be fulfilled as these lands are threatened by the activities of stronger
groups encroaching on these lands to graze their large herds of cattle. This poses a serious threat to the
livelihood of the San because of the potential damage to the fragile ecology and its bush-food
resources.
The N#a Jagna Conservancy’s viability is also threatened by the decision to convert part of it into
mixed farming settlements that are not likely to benefit members of the conservancy. There is concern
41
over the impact of the new settlement on the conservancy and access to veld foods. Controversy
surrounds the question whether there was any consultation with the affected people before
government took its decision.
Overall, despite considerable efforts and a number of programmes addressing the needs of indigenous
peoples, there remains a distinctly integrationist character to the approach. As stated above, concerns
have been expressed by international bodies to this effect. There remains a definitive need to assess
the methods and mechanisms of consultation of indigenous peoples to ensure their needs, cultures and
aspirations are realized in the context of national development.
3.2
Recommendations
The protection of indigenous peoples’ rights requires positive action to safeguard them.
The Office of the Ombudsman should include indigenous peoples in its efforts to raise awareness
about its procedures and mandate. Training should be provided to the staff of the Office of the
Ombudsman, and to members of the Judiciary and government officials dealing directly with
indigenous issues.
Criteria and specific mechanisms should be put in place to assure that the process of recognising
traditional authorities is fair and transparent.
Systematic and regular mechanisms for consultation with indigenous peoples should be set up within
the context of the San Development Programme, specifically with a view to ensuring its objectives
and implementation are consistent with the cultures and aspirations of indigenous peoples, and more
generally, in the development and implementation of programmes or other matters that affect
indigenous peoples. To this end, the nature of consultation mechanisms should be agreed with
indigenous peoples.
Document practices in mother-tongue and mobile education for indigenous peoples should be
developed and expanded with a view to extending these services to additional communities, and
improving existing services.
Educational materials on indigenous peoples’ issues for should be produced for broader use within the
education system. Training for teachers in indigenous areas should be provided with a view to
eliminating discrimination against indigenous children in the classroom.
Vulnerable children in rural areas and dispersed settlements and should be targeted to address their
particular needs which are not always similar to those of other children. The findings of the Deputy
Prime Minister contained in her Needs Assessment Report should be given urgent attention.
More resources to should be allocated to indigenous peoples’ health services, they should be included
in medical insurance programmes, and education must be provided to indigenous communities on
health issues. This education should be done in all languages spoken in the communities concerned.
The government should also prioritise capacity-building, collaboration and co-ordination, and fund
organisations working towards the eradication of disease.
To improve access to justice and social services, state policies should enhance mother-tongue
education by allocating equitable resources for education, infrastructural and socio-economic
development in all regions in Namibia.
Mechanisms for the consultation and participation of indigenous peoples with respect to the Land
Reform Programme should be established, as well as in respect of conservancies and national parks,
with a view to increasing their opportunities to pursue their traditional ways of life in these areas, and
taking part in their management.
42
The revision of laws concerning lands and resources should be considered in order to take into
account land use patterns, traditional occupations, collective rights and minimum international
standards concerning the rights to lands and resources of indigenous peoples.
Educational, healthcare and justice infrastructures in indigenous areas must be improved to ensure
their accessibility. While mobile schools have been introduced in some areas, post-primary education
facilities are very thin on the ground.
In San communities, sufficient educational support is imperative in order to enable these communities
to make informed decisions about their development and the development of future generations. It is
not sufficient to provide these communities with free education up to Grade 10 and thereafter abandon
them. Further sacrifices are necessary, at least up to Grade 12. Grade 10 drop-outs should be given the
opportunity to pay back what society has invested in them through vocational training in such fields
as agricultural extension services so as to serve their own communities.
There is an urgent need for the translation of government policies on the protection of indigenous
people into a normative and legislative framework to ensure consistency and continuity and thereby
defining specific rights and obligations capable of enforcement.
43
Part IV: Bibliography
Meetings
1.
Tuesday, April 1, 2008, briefing meeting with WIMSA, Windhoek.
2.
Wednesday, April 2, 2008, briefing meeting with the Ministry of Justice, Windhoek.
3.
Wednesday, April 2, 2008, meeting with Ministry of Gender and Women’s Affairs,
Windhoek.
4.
Thursday, April 3, 2008, meeting with the Desert Foundation of Namibia, Windhoek.
5.
Friday, April 4, 2008, meeting with the Ombudsman, Windhoek.
6.
Friday, April 4, 2008, meeting with the Ministry of Education, Windhoek.
7.
Friday, April 4, 2008, meeting with the Legal Assistance Centre, Windhoek.
8.
Saturday, April 5, 2008, meeting with the !Kung San Traditional Authority and the
Conservancy Management Committee of the N//a Jaqna Conservancy, Mangetti Dune, Tsumkwe
District, WEST OF Otjozondjupa region,North Eastern Namibia.
9.
Saturday, April 5, 2008, meeting with the Management Committee of the Nyae Nyae
Conservancy and representatives of the local authority and NAMAS, Tsumkwe District, east of the
Otjozondjupa region.
10.
Saturday, April 5, 2008, meeting with the Management Board of the Bwabwata Game
Reserve Community Conservancy, WIMSA, Intergrated Rural Development and Nature Conservation
and San tradition leaders 9 not as yet recognized by government), Divundu, Caprivi region.
11.
Sunday, April 6, 2008, meeting with fifty-two representatives of indeigenous communities in
the Kunene Region who included a local NGO (HIPO), local authority councilors, teachers, church
leaders, traditional leaders (Himbas, Ovatue, Ovatjimba and Ovazemba), Opuwo, and Kunene region
of North Western Namibia.
12.
Monday, April 7, 2008, meeting with the Deputy Prime Minister’s Office attended by the
Special Assistant to the Deputy Prime Minister and the Control Officer, Windhoek.
13.
Monday, April 7, 2008, meeting with the Ministry of Justice, Windhoek.
14.
Monday, April 7, 2008, meeting with UN Agencies, Windhoek.
15.
Tuesday, April 8, 2008, meeting with Nyae Nyae Development Foundation of Namibia,
Windhoek.
16.
Tuesday, April 8, 2008 meeting with the Director of the Human Rights and Documentation
Centre, University of Namibia (UNAM), Windhoek.
17.
Wednesday, April 9, 2008, meeting with the Chief Justice of Namibia, Windhoek.
18.
Wednesday, April 9, 2008, meeting with Board Members of WIMSA Who included San
representatives from Gobabis (Omaheke region) and Otjozondjupa region at WIMSA offices,
Windhoek.
44
19.
Thursday, April 10, 2008, meeting with the Ministry of Environment and Tourism,
Windhoek.
20.
Thursday, April 10, 2008, meeting with the Ministry of Lands, Resettlement and
Rehabilitation, Windhoek.
21.
Thursday, April 10,2008, meeting with WIMSA, Windhoek.
22.
Friday, October 10, 2008, interview with Norman Tjombe, LAC Director.
Books
Amukugo. EM (1993) Education and politics in Namibia –past trends and future prospects- New
Namibia Book, (Pty) Ltd, Windhoek
Bollig, M, Resource Management and Pastoral Production in the Epupa Project Area (1997)
Capotorti. F (1991) Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic
Minorities. UN V5, New York
Heyns Christophe (2004) Human Rights Law in Africa v 2 (eds) Heyns & Linde; Martinus Nijhoff,
The Netherlands.
Hitchcock Robert & Diana Vinding, (eds) (2004) Indigenous People Rights in Southern Africa
IWIGA NO 110, Copenhagen
Hohmann Thekla (ed), San and the State – Contesting Land, Development, Identity and
Representation (2003)
Horn, Nico and Anton Bosl (eds): Human Rights and the Rule of Law in Namibia (2008), Windhoek
Legal Assistance Centre Our land they took - San Land rights under threat in Namibia, Windhoek,
(2006)
Suzman James (2001) An Assessment of the Status of the San in Namibia. Legal Assistance Centre.
Windhoek.
Contributions in books
Daniels, Clement ‘Indigenous Rights in Namibia’ in Hitchcock Robert & Diana Vinding, (eds)
Indigenous People Rights in southern Africa IWIGA NO 110, Copenhagen 2004
Harring L. Sidney ‘Indigenous Land Rights And Land Reform in Namibia’ in Hitchcock Robert &
Diana Vinding, (eds) Indigenous People Rights in southern Africa IWIGA NO 110, Copenhagen 2004
Hitchcock Robert & Diana Vinding, (eds) Indigenous People Rights in southern Africa IWIGA NO
110, Copenhagen 2004
Macdonald D, Molamu L.’ From pleasure to pain: Asocial history of Basarwa alcohol used in
Botswana.’ In Peele S, Grant M, (eds). Alcohol and pleasure: A health perspective. Philadelphia:
Brunner/Mazel, 1999
Nico Horn ‘Namibia’ in Heyns & van der Linde (eds) Human Rights Law in Africa Vol 2 Martinus
Nijhoff, The Netherlands.
45
Pakleppa Ricard and WIMSA ‘Civil Rights In Legislation And Practice: A case Study From
Tsumkwe District West, Namibia’ in Hitchcock Robert & Diana Vinding, (eds) Indigenous People
Rights in southern Africa IWIGA NO 110, Copenhagen 2004
S Saugestad ‘Indigenous peoples of Southern Africa: An overview.’ Hitchcock and Vinding (eds)
Indigenous People Rights in southern Africa IWIGA NO 110, Copenhagen 2004.
Reports and Seminars Proceedings
Corpus VT ‘Millenuim Development goals and indigenous peoples’, Permanent Forum on Indigenous
Issues, Fourth session, Item3 of the provisional agenda, Special theme. New York, May 16-27, 2005.
David Oladipupo Kuranga’ Moving Forward with Land Reform’ Columbia University
Honorable Mention Essay- Development.2004NationalUndergraduate
Agricultural, Environmental and Development Economics
Research
Contestin
Hinz M O & Kwenani J W the ascertainment of customary law, paper presented at the International
Conference on traditional governance and customary law. Southern African Perspectives held in
Windhoek 26-29 July 2004
International Religious Freedom Report 2006, release by the bureau of Democracy, Human Rights
and Labour
IWGIA, briefing on Namibia, July 2005
Melber, Henning, Namibia’s Post Colonial Socio-economic (non) Transformation: business as usual?
(In NordSud Actuel-3rd Quarter 2005)
Mosimege, M ‘Intellectual property and indigenous knowledge system: international development
and implication for Southern Africa’, paper presented at the CODATA workshop on 5 September
2005 in South Africa [email protected]
Mulongeni, B ‘Media and Broadcasting in Namibia’ Workshop on National Information and
Communication Infrastructure for Namibia. 11- 13 May 1998.
2005
Namibian
Country
Reports
on
Human
Released by the Bureau of Democracy, Human Rights, and Labor
Rights
Practices
Peeters Y J D International Legal Counsel on ‘The Discrimination Of The Rehoboth Basters’ An
indigenous people in the Republic Of Namibia; a fact file prepared for the 11 th session of the
Working Group on Indigenous population and the 45 th Session of the Sub-commission on Prevention
of Discrimination and Protection of Minorities of the United Nations Commission on Human Rights.
Geneva, July-August 1993
Report of the Seminar on the multinational society held at Ljubljana, Yugoslavia 8-21 June 1965,
quoted from ‘Study on the Rights of Persons Belonging to Ethnics; Religious and Linguistics
Minorities’ (1991) vol 5, 37
Report of the African Commission’s Working Group of
Populations/communities; 28 ordinary session. IWGIA, Copenhagen
Experts
on
indigenous
Wolfgang Werner ‘Land Reform and Poverty Alleviation: Experiences from Namibia’ Namibian
Economic
Policy
Research
Unit.
46
Sem T Shikongo ‘The issues around the negotiation of the International Regime on Access and
benefit-sharing and the effective participation of local and indigenous communities in this negotiation
process: An African perspective’ Paper presented at the International Expert Group Meeting on the
Convention on Biological Diversity’s International Regime on Access and Benefit-sharing and
Indigenous Peoples rights. 17-19 January 2007, New York, USA
Van Donge J K, Eiseb G and Mosimane A (2005) ‘Research project rural development, environment
and population studies group in Namibia: issues of equity and poverty’ ISS; The Hague.
United Nations Development Programme(UNDP), Namibia Human Development Report 1996
Articles
Renee Sylvain (2002) San women today: inequality and dependency in post -foraging world.
Indigenous Affairs 2002; Indigenous Women 1-2/04
Good K (1999) The state and extreme poverty in Botswana: the San and destitute. Journal of African
Studies
Tjipueja Erich Gerard’ The policy and strategy to improve enrolment at school’ in Journal for
Education Reform, Volume 4, May 2001
Case Law
Diergaardt et al. v Namibia, Co.Nr.760/1997
Kapika v Government of Namibia, unreported, September 1997.
The Rehoboth Bastergemeente v The Government of the Republic of Namibia SA 505 (1996).
S v Minnies and another 1990 NR177 (HC)
S v Willemse 1990 NR 177 (HC).
National Legislation
Copyrights and Neighbouring Rights Act No 6, April 1994
The National Guideline on Forest and Fire Management of 31 March 2001
The 1990 Namibian Constitution
The Traditional Authority Act (Act 17 of 1995)
The community Court Act of 2003
The Nature Conservation Amendment Act 1996 (Act 5 of 1996)
The Product Trust Fund Act 7 of 1997
The Patents, Designs, Trade Marks and Copyrights Proclamation No. 17 of 1923
Trade Marks in South West Africa No. 48 of 1973 in force since January 1974
International instruments
International Covenant on Civil and Political Rights
International Covenant on Socio Economic and Cultural Rights
ILO Convention no 169
African Charter on Human and Peoples’ Rights
47