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

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

International Labour Organization

Published with the support of:E U R O P E A N COMMISSION

1

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

1.3.1 The legal system 1 13

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

2

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

3

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 See Report of the African Commission’s Working Group of Experts on Indigenous Population/Communities 13, 86. 2 Report of the African Commission’s Working Group of Experts on Indigenous Population/Communities (2005) 89.

4

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 Background to the country 1.2.1 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. 4 Thekla Hohmann (ed) 2. 5 History of Namibia from Wikipedia, the free encyclopedia, Thekla Hohmann (ed), San and the State – Contesting Land, Development, Identity and Representation (2003) 2.

5

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 South-West 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-to-south 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.

6

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 J Suzman An Assessment of the Status of the San in Namibia (2001) 123. 9 As above. 10 n 8 above, 118. 11 United Nations Development Programme (1996) Namibia Human Development Report 1996. 12 M Bollig Resource Management and Pastoral Production in the Epupa Project Area (1997). 13 As above, 8.

7

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 life-style. 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 Suzman (n 8 above) 6. 15 n 6 above, 68 16 C Daniels ’Indigenous Rights in Namibia’ in Hitchcock and Vinding (n 6 above) 46.

8

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 Art 27 Constitution of Namibia. 18 Arts 27 and 28 Constitution of Namibia. 19 Art 32 Constitution of Namibia. 20 Art 44 Constitution of Namibia. 21 Art 75 Constitution of Namibia. 22 Arts 32(5)(c) and 56(1)(b) Constitution of Namibia. 23 Art 78 Constitution of Namibia. 24 Art 82 Constitution of Namibia. 25 Art 89 Constitution of Namibia. 25 As above. 26 CERD, Concluding Observations: Namibia, August 2008, UN Doc CERD/C/NAM/CO/12, para 25. 27 South West African Broadcasting Corporation http://pumamouse.com/SWABC.html.

9

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 non-governmental 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 UK-based 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. 29 Information provided by Nyae Conservancy Management Committee. 30 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=1609d298291d7a640e7fa9d615b280fd (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

10

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 Attorney-General.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. 38 S v Minnies and another 1990 NR177 (HC). 39 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.

11

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 Date of deposit of ratification/accession ICCPR 28/11/1994 ICESCR 28/11/1994 Optional Protocol to ICCPR 28/11/1994 CERD 11/11/1982 Art 14 of CERD 11/11/1982 CEDAW 23/11/1982 Protocol to CEDAW 26/05/2000 CRC 30/09/1990 Protocol to CRC – Armed Conflict 16/04/2002 Protocol to CRC – Sexual Exploitation 16/04/2002 Genocide Convention 28/11/1994 Slavery Convention 1927 - Supplementary Slavery Convention 1956 - CAT 28/11/1994 Art 22 of CAT 28/11/1994 CMW - Art 77 of CMW - Convention on Biological Diversity 16/05/2005 (b) Ratification of ILO conventions/instruments ILO 29 (Forced Labour) 15/11/2000 ILO 105 (Abolition of Forced Labour) 15/11/2000 ILO 100 (Equal Remuneration) - ILO 111 (Discrimination in Employment and Occupation)

13/11/2001

ILO 107 (Indigenous and Tribal population) - ILO 169 (Indigenous Peoples) - ILO 138 (Minimum Age) 15/11/2000 ILO 182 (Worst Forms of Child Labour) 15/11/2000 (c) Ratification of AU instruments49

Instrument Date of deposit of ratification accession African Charter 30/08/1992 African Charter on the Rights of the Child 23/07/2004 Protocol on the Rights of Women 22/12/2000 Protocol on the African Court - Convention on Nature and Natural Resources, -

47 N Horn ‘Namibia’ in Human Rights Law in Africa (2004) 1358. 48 www.achpr.org and University of Minnesota, Human Rights Library. 49 http:www.africa-union.org.

12

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 Namibia’s obligations under international human rights instruments (a) 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 1994-1998 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). 51 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.

13

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

people who will benefit from modernisation and integration into the dominant society. 58

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). 58 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.

14

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 non-recognition 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 Hitchcock and Vinding ‘Introduction’ in Hitchcock and Vinding (eds) 239. 62 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (2005) 52.

15

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

Commission (now Human Rights Council) in line with the African Charter. 66

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 S Saugested ‘The indigenous people of Southern Africa: An overview’ in Hitchcook and Vinding (eds) 40. 64 Report on the African Commission’s Working Group on Indigenous Populations/Communities 93. 65 As above, 103. 66 Art 60 African Charter. 67 Information provided by the Ministry of Justice during the meeting of 7/04/08. 68 See Part II, section 2, on non-discrimination in this report.

16

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 The San Development Programme Report 2007/2008, 27 March 2008 by the Office of the Deputy Prime Minister. 70 The San Development Programme Report 2007/2008 29 March 2007. 71 Republic of Namibia Government Bulletin, October 2007. 72 New Era 08 August 2008.

17

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 CERD Concluding Observations: Namibia, August 2008, UN Doc CERD/C/NAM/CO/12 para 10. 74 CERD Concluding Observations: Namibia August 2008, UN Doc CERD/C/NAM/CO/12 para 12. 75 2005 Namibia Country Report on Human Rights Practices released by the Bureau of Democracy, Human Rights and Labour. 76 Art 66(1) Constitution of Namibia. 77 Sec 2(1). 78 Sec 4(1) & (2) Act 25 of 2000. 79 Sec 5(i).

18

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 self-determination. 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). 81 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.

19

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.

20

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 Arts 10, 23 and 95 Constitution of Namibia. 98 Art 95(k) Constitution of Namibia. 99 Art 10 of the Constitution provides for the right to equality. 100 Report of the African Commission Group of Experts on Indigenous Population/Communities (28th ordinary session) 18. 101 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).

21

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 first-hand 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 north-east 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. 111 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.

22

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-the-ombudsman?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/Synkron-Library/Documents/InternationalProcesses/ACH p 6 (accessed 27-07-2007). 118 As above. 119 Art 3(1) & (2) Constitution of Namibia.

23

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. 121 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.

24

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 mother-tongue 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 As above. 131 As above. 132 Hitchcock & Vinding in Hitchcock & Vinding 11. 133 Currently the Ministry of Education. 134 As above. 135 IWIGIA briefing on Namibia, July 2005. 136 Namibia at http://www.tlfq.ulaval.ca/ax/afrique/namibie.htm (accessed on 20 January 2007). 137 Communication 760/1997, UN Doc CCPR/69/D/760/1997 (6 September 2000).

25

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. 138 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.

26

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. 150 ‘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.

27

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. 162 This case was not reported and was quoted from C Daniels’ Chapter; n 71 above, 29; www.mg.co.za/article/2007-03-23-namibia-gives-san-longlost-land-near-etosha. 163 Harring 64. 164 As above.

28

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. 166 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.

29

(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 As above. 172 Daniels 62. 173 Art 161(1) Constitution of Namibia. 174 Art 16(2) Constitution of Namibia. 175 CERD, Concluding Observations: Namibia, August 2008, UN Doc. No.: CERD/C/NAM/CO/12 para 18.

30

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).

31

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 San speaker at Etamelo community meeting quoted by Pakklepa & WIMSA in Hitchcock and Vinding 93. 181 CERD, Concluding Observations: Namibia, August 2008, UN Doc. No.: CERD/C/NAM/CO/12 para19. 182 As above, 218. 183 As above. 184 As above.

32

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 self-sustaining. 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 CERD, Concluding Observations: Namibia, August 2008, UN Doc. No.: CERD/C/NAM/CO/12 para 19. 186 The San Development Programme Report 2007/2008.

33

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 low-income 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. 188 Enabling Shelter Strategy: Review of experience from two decade of implementation at 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.

34

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 hunter-gatherers, 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

tackle the disease was not directed at indigenous civil society organisations and rural areas. 202

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. 196 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).

35

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 CERD, Concluding Observations: Namibia, August 2008, UN Doc. No.: CERD/C/NAM/CO/12 para 21. 204 IWIGIA Briefing Note on Namibia - July 2005 205 As above. 206 As above. 207 As above. 208 Daniels 52 – 53. 209 Daniels 250. 210 193. 211 Inaugural speech of the President para 15 www.grvnet.gov.na. 212 218.

36

(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 mogege.mosimege@dst.gov.za. 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).

37

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 male-dominated.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. 220 As above. 221 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

38

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. 229 As above. 230 Namibia: Inheritance rights still a thorny issue at 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.

39

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 As above, 250. 233 RECLISA, reduction child labour in Southern Africa. 234 Namibia Child Activities Survey or NCAS 2001.

40

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 pre-schools, 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.

41

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

42

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.

43

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.

44

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.

45

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.

46

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 Research Contestin Agricultural, Environmental and Development Economics 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 mogege.mosimege@dst.gov.za 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 Rights Practices Released by the Bureau of Democracy, Human Rights, and Labor 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 Experts on indigenous Populations/communities; 28 ordinary session. IWGIA, Copenhagen Wolfgang Werner ‘Land Reform and Poverty Alleviation: Experiences from Namibia’ Namibian Economic Policy Research Unit.

47

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