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Lands' Minister addresses touchy land issues

1. Allocation of 20 hectares in Communal areas.

The issue of the allocation of land in communal areas is a concern to the citizens of this country as more than 70% of the population resides in communal areas. It is therefore my pleasure, as Minister tasked by the Government of the Republic of Namibia to administer the land to explain and clarify to all citizens of this country the misunderstanding surrounding the allocation of 20 hectare plots in the communal areas.

Section 23 of the Communal Land Reform Act No. 5 of 2002, provides that no person is entitled to be allocated and to acquire any customary land right in respect of communal land which exceeds the maximum size which the Minister of Lands and Resettlement in consultation with the Minister responsible for Agricultural Affairs may prescribe for purposes of this subsection.

The Act empowers the Minister of Lands and Resettlement to consult with the Minister responsible for Agriculture, Water and Forestry to determine the maximum size to be allocated in a communal area.

In the preparation of this piece of legislation, the Ministry endeavored to ensure that all the relevant legal processes were complied with. These include consultations with the line Ministries, Regional and with the people affected by the law.

We held national consultations with regard to the decision to allocate a maximum of 20 hectares for individual usage in the communal. This process resulted in the promulgation of Regulation 3 (1) of the Regulations made in terms of the Communal Land Reform Act, No. 5 of 2002. These Regulations as well as the Gazette were presented before Parliament in February 2003.

There is no limit in terms of size which may be allocated in communal areas. The 20 hectares is the limit which Traditional Authorities may allocate, while as, all applications above 20 hectares are referred to the Minister for approval. The Minister, before approval will cause an investigation to be done on the impact of the application on access to communal grazing by all community members.

The decision to empower Traditional Authorities to allocate customary land rights to the maximum of 20 hectares in communal areas was arrived at for the following reason;

To protect the commonage from being fenced off by a few individuals for personal and individual use and from being depleted through over grazing.

If no maximum size was set in which Traditional Authorities may allocate, today there would be no piece of land in the communal areas that can be referred to as communal area or commonage.

The maximum size of 20 hectares was decided upon to cater for personal individual family use of a residential, a kraal and for subsistence crop production. It is important to understand that even those who have (because, it is not a must) 20 hectares, can still use the greater commonage outside the 20 hectares because the law recognizes that 20 hectares is not sufficient for grazing.

It is therefore not true and not practical at all that everyone in the communal area will be allocated with a 20 hectare piece of land. The current law states that those who held existing customary land rights before the enactment of the Communal land Reform Act (Act NO. 5 of 2002), can apply to register their rights in entirety provided such were properly allocated by their recognized Traditional Authorities. For the new applications of customary land rights which exceed the maximum of 20 hectares, they need to do so through their recognized traditional authorities who will transmit them to the Minister for approval through their respective communal Land Boards. It is important to note that Communal Land Boards verifies the areas applied for and recommends to the Minister for consideration and approval.

The 20 hectares are not meant for private or individual livestock grazing purposes in the communal area because the communal area is there for everybody within a particular communal community to graze. It seems the outcry about the 20 hectares in some quarters of our society is based on the fact that some of the communal area dwellers want to fence off land for private grazing leaving others with no access to common grazing space, hence the claims that 20 hectares is too small and unsustainable.

I hope this explanation has shed some light into this issue.

2. Fencing of communal land

Is fencing of communal land allowed?

It is a crime to erect or keep unauthorized fences on communal land in Namibia and is punishable by law. Also, it is an offence to retain any existing fence for more than 30 days after the application to retain it has been refused by the Communal Land Board. According to the Communal Land Reform Act (Act No. 5 of 2002), nobody is allowed to erect new fences or even keep old fences without authorization from the Communal Land Board of a particular area.

Sections 18 & 44 of the Communal Land Reform Act (Act No. 5 of 2002), prohibit people from erecting fences at any place in the communal area which has not been approved by the Communal Land Board. Those violating the provisions of the Communal Land Reform Act (Act No. 5 of 2002) with regards to illegal fencing are liable for punishment under the law of the land to a maximum fine of N$4,000 or one year imprisonment; or both depending on the circumstances of the committed crime.

In cases where the person who is convicted of the illegal fencing is reluctant to take down the fence, he/she is guilty of committing an additional offence which is referred to as continuing offence. The chronic offender will additionally be liable for a fine of N$50 for each day that the fence remains standing. All costs related to the removal of such a fence can be recovered from the person who contravened the law by erecting or retaining the fence.

Which type of fences is allowed without any authorization?

A legal customary land right holder or land lease holder does not need any authorization to erect a fence if he/she so wish to; fence off homesteads, cattle pen, crop field or private water troughs within his/her residence. The Act allows such kind of fencing because it does not infringe on the rights of other communal land users, for what is fenced off in this case is considered to be for personal use other than common use.

When will the Ministry remove illegal fencing in communal areas? Will the people be compensated?

The Ministry is developing guidelines on the removal of fences during the 2012/13 Financial Year which may be followed by its immediate implementation during the same year. There shall be no compensation to culprits who erected illegal fences in communal areas.

The Chief, Traditional Authority or Communal Land Board have the power to remove illegal fences and dispose of the materials used to construct the fence. All the costs of removing such a fence can be recovered from the person who erected or retained the fence.

3. Communal land registration. What is Communal Land?

Communal Land is the land which is inhabited by the traditional communities of Namibia in their diversity.

Communal Land is vested in the State by the Constitution of the Republic of Namibia and cannot be bought or sold by anybody.

The state has the duty to administer communal land in trust for the benefit of the traditional communities living on the land, and for the purpose of promoting economic and social development of the people of Namibia.

What is Communal Land Registration?

Communal Land Registration is the process of making and keeping records about who has what user rights to which piece (parcel) of land in the communal areas.

This huge process includes the identification (of such land by applicant), allocation (by the respective Traditional Authority), verification and mapping (by the Ministry of Lands and Resettlement) and the actual registration of the communal land right (by the respective Communal Land Board) before the applicant finally receives a Certificate of Registration.

- All the records about Communal Land are stored in the communal land register (Namibia Communal Land Administration System / database) which is administered by the Ministry of Lands and Resettlement for record management.

- Each land right is entered in the register with a unique parcel identifier for easy retrieval when need arises.

Benefits of Communal Land Registration

Communal land registration has several benefits which include:

- Security of tenure to land holders, their spouses, children and dependants.

- Provides security and protection from land related disputes between neighbors, families, clans and tribes.

- Gives a legal documentary proof of the land right.

- Allows one person to use a particular piece of land at a time which rules out double allocations and land grabbing.

- Avails a right to compensation by government bodies when part of the land is needed for national development purposes such as roads, pipelines, power lines, bulk water reservoirs, town expansions, etc.

- All communal land rights are transferable from one person to another in consultation with the Traditional Authority (Customary land rights) and Communal Land Board (Leaseholds).

- Land holders can apply for retention of their existing fences.

Who should apply to register their Communal Land Rights?

According to the Communal Land Reform Act (Act No. 5 of 2002), everybody living in the communal areas of Namibia and anybody with interest in the communal areas should apply for the allocation, recognition and registration of such rights.

- Namibian nationals who reside in the communal areas should apply for registration through their respect recognized Traditional Authorities.

- The Traditional Authorities will allocate land to individual members of their traditional community.

- The Communal Land Board under which the allocated land falls will verify and approve the application.

Communal Land application and certificate fees The regulations of the Communal Land Reform Act, 2002 puts the application fee for all communal land rights at N$25.00 and Certificate collection fee of N$50.00 only.

- All fees pertaining to customary land rights are payable to the respective Traditional Authority while fees charged for all Rights of Leasehold are payable into the Communal Land Reform Fund.

Types of Land rights available under the Communal Land Registration program

New Customary Land Rights (allocation and registration)

- Existing Customary Land Rights (recognition and registration)

- New Rights of Leasehold (allocation and registration)

- Existing Rights for Permission to Occupy Communal Land (recognition and registration)

What happens to unregistered communal land?

All unregistered communal land of given traditional community will fall under the commonage and part of it could be allocated to other members of the same traditional authority when need arise.

- Commonage (for example) could be referred to as a common grazing area for livestock of the members of traditional community.

- The Communal Land Reform Act prohibits against fencing of the commonage or any public property destined for common use of all the traditional members of a given community in the communal areas of Namibia.

- Note that part of the commonage can be allocated to new applicants by the Traditional Authority without compromising on the availability of an adequate commonage.

Deadline for the application of existing communal land rights

The deadline for submitting applications for existing customary land rights has been extended for 2 years by the Minister of Lands and Resettlement to 28 February 2014.

- The previous deadline was 29 February 2012.

Who are involved in the communal land registration?

The three main parties involved in the communal land registration are listed below with some of their responsibilities.

The applicant

- Applies (in writing) for the right to use a particular piece of land on the correct prescribed form(s).

- Pays the prescribed application and certificate fees as required.v - Cooperates with the Ministry Staff in the process of verification of the application.

- Verifies that the information on the registration certificate is correct before accepting it. Traditional Authorities (TA)

- Allocates land to individuals within their traditional communities.

- Writes recommendation letters that accompany all communal land rights applications that are handed over to the Communal Land Board for verification and ratification.

- The TA issues the Registration Certificates of all customary land rights for their respective communities to the applicants.

Communal Land Board (Commissioned by the Ministry of Lands and Resettlement)

- Controls the allocation and cancellations of customary land rights submitted by the Traditional Authorities.

- Decides on all applications of the Right of Leasehold.

- Controls the erection or fences in the communal areas.

- Makes sure that all land related disputes are resolved before a Certificate of registration is issued to any applicant.

Achievements so far More than 38,000 customary land rights and 243 rights of Leaseholds have been registered while 60,000 land rights have been verified and mapped with more than 70,000 digitized by the Ministry so far. A total of 42% (16,219) of the customary land rights registered so far belongs to women.

- It is the hope of the Ministry that all those who have not yet applied for the registration of their existing communal land rights will do so before the expiry of the extended deadline of 29 February 2014.

4. Issues raised and Resolutions made at the workshop organized by the ELCIN Church in Namibia on Land Reform and Resettlement at the Tabitha centre in Katutura.

I would also like to use this opportunity to inform the Nation about the actions being taken by the Ministry of Lands and Resettlement on issues raised following the National Workshop on Land Reform and Resettlement that took place on 10 - 13 November 2011which was hosted by the Desk for Social Development of the Evangelical Lutheran Church in the Republic of Namibia (ELCRN) in collaboration with other Civil Society Organizations. The workshop discussed a number of issues and came up with the following recommendations:

1. The Land acquisition programme is slow and must be accelerated through the expropriation of farms that belong to absentee landlords to complement the willing settler willing buyer method currently in use. Farms owned by absentee landlords must be identified for expropriation by Government.

- This issue was agreed upon at the 1991 Land Conference where it was recommended that Government should quickly take steps to address the issue of expropriation of such farms.

This matter is currently being addressed by the Ministry through the drafting of revised expropriation criteria which will be tabled soon for comment through various consultations with stakeholders and legal advisors.

2. The current Land Policies and Legislation be reviewed and that the Ministry organize local, regional and national consultations to review the National Resettlement Policy and Resettlement Criteria.

- The consolidation and review of the Agricultural (Commercial) Land Reform act and the Communal Land reform Act is one of the Ministry's major programmes under the 2nd Strategic Plan.

The Ministry through the current Land Bill which is before Legal Drafters for scrutiny is in the process of amending various sections of the current legislation on land to plug loopholes and bring it into harmony with various policy and administrative instruments to address the many challenges that we came across in the effort to hasten land reform.

- The Review of the National Resettlement Policy and Resettlement Criteria is also underway. National Resettlement Policy is one of the legal instruments that guide land redistribution/ resettlement programme in the country.

Again our review on these important instruments is guided by the lessons learned in the implementation process.

3. The workshop noted that the reality of land ownership has not changed in Namibia and as a result communities are demanding the revisiting of ancestral land claims with a view of ment farms are not productively used due to lack of water.

- The Ministry of Lands and Resettlement is currently implementing a major Water Infrastructure development / Rehabilitation Programme on resettlement farms. Currently the Ministry of Agriculture, Water and Forestry is providing assistance to the Ministry of Lands and Resettlement with the tendering process and monitoring of actual work done by Contractors.

- The work which is on-going has since been initiated in the Karas and Hardap Region. The Ministry is determined to carry out this challenging and complex exercise as expediently as possible in order to ensure productivity on resettlement farms and projects.

6. Security of tenure in both communal and commercial farms be addressed to encourage investment and a sense of ownership among the land beneficiaries.

- With the support of the Millennium Challenge Account (MCA), policy is being recommended to facilitate access to grazing in communal areas. This policy review is also addressing the issue of maximum land sizes that may be allocated in communal areas as well as the management and administration of the commonage.

7. That the identification of illegal fences in communal areas be expedited and their removal after February 2012 deadline be monitored by Traditional Authorities and respective Communal Land Boards.

- The Communal Land Reform Act is very clear with regard to illegal fences in communal areas. The Act takes a strong position against the erection of fences on communal lands. No new fences may be erected without proper authorization obtained in accordance with the Act. Similarly, fences that existed at the time that the Act came into operation have to be removed, unless the people who erected applied for and were granted permission to keep the fences on the land. All fences which existed before the Act came into force have up to February 2011 on which fence owners may to apply for the recognition and registration of their fences.

- The Ministry will develop guidelines on the removal of fences during the 2012/13 Financial Year which may be followed by its immediate implementation during the same year.

- There shall be no compensation to culprits who erected illegal fences in communal areas. The Chief, Traditional Authority or Communal Land Board have the power to remove illegal fences and dispose of the materials used to construct the fence. All the costs of removing such a fence can be recovered from the person who erected or retained the fence.

Let me conclude by urging every occupant of communal area who has not yet registered his or her existing or new customary land right to urgently do so because it guarantees secure tenure in perpetuity for the family. I particularly call upon women and other vulnerable citizens to ensure that their rights are secured by registering them through their respective Communal Land Boards.


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