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Environmental Law and Policy in Namibia: Towards Making Africa the Tree of Life (Third Edition)




Oliver C. Ruppel, Shirley Bethune and Anielle von Finckenstein

1 Introduction

Land degradation is one of the major environmental concerns in Namibia as land is the basis for survival. Land degradation threatens environmental quality and has a negative economic impact. In Namibia, farming has deep cultural and social meaning. About 70% of the Namibian population depends on agricultural activities for a livelihood.1 Thus, the conservation of land by legal means is of critical importance for the country.2

Land degradation in Namibia, like elsewhere in the world occurs in different forms and the effects and causes of land degradation are manifold.3 It is, inter alia, caused by climatic variations, especially the high variability of rainfall patterns, and human activities. According to the Namibia Household Income and Expenditure Survey 2009/2010,4 23% of Namibian households depend on subsistence farming as the main source of income. This figure has decreased from 38% in 1993/1994 and 29% in 2003/2004. However, many Namibians depend – directly or indirectly – more on farming than on any other economic activity.5 Despite the fact that the whole agriculture and forestry sector, which includes processing, only made up 5.1% of GDP in 20096 most of the land in Namibia is used for agricultural purposes.7

Overstocking and overgrazing are considered to be the main causes for land degradation in Namibia. Especially in rural areas, poverty forces people into unsustainable environmental management practices such as overstocking and overgrazing in order to ensure food supply. More often than not, the densities of livestock exceed the carrying capacity of the land, which places strain on the environment. Further negative effects on land are caused by the unsustainable harvesting of forest resources, wild plants and game, and the clearing of land for farming or housing purposes.8

Land degradation not only has negative economic consequences in that it reduces the country’s resources, it also poses a serious threat to food security and rural livelihoods, which particularly affects the most vulnerable groups in Namibia’s poor and densely populated areas. The most alarming effects of land degradation are deforestation, decreased availability of palatable grass species, soil erosion, bush encroachment and soil salinisation.9

In light of this environmental background, the importance of soil conservation becomes apparent. However, both nationally and internationally this area of the environment has not yet gotten the attention it deserves.

2 Soil Protection in the International Legal Framework

Even though some international conventions recognise the importance of soil conservation, no overarching framework exists as yet.

The European Soil Charter of 1972 is held to have been the first international document relating to soil.10 The World Soil Charter and the World Soils Policy11 was negotiated by the United Nations Environmental Program in coordination with United Nations Food and Agricultural Organization (FAO) and adopted in 1981. Both instruments contain non-binding guidelines and principles relating to soil conservation12 and were intended to aid states in formulating domestic policies. However, in light of modern environmental practices these instruments are considered to be outdated.13 In view of new scientific knowledge gained over the past three decades, “especially with respect to new issues that emerged or were exacerbated during the last decades, like soil pollution and its consequences for the environment, climate change adaptation and mitigation and urban sprawl impacts on soil availability and functions”14 , the World Soil Charter has thus been revised and unanimously endorsed in June 2015 (the international year of soils) by the member states of the FAO during the 39th Session of the FAO Conference. The revised World Soil Charter, is organised in a Preamble, nine Principles, and Guidelines for Action. These guidelines aim to ensure that “soils are managed sustainably and that degraded soils are rehabilitated or restored.”15 The actions are targeted at individuals and the organised private sector, governments and international organisations.

Further documents which contain provisions relating to soil management are the World Charter on Nature16 and Agenda 21.17 However, these instruments have been criticised to be inappropriate to aid in soil conservation, due to being too broadly worded.18

The 1994 Convention to Combat Desertification in Those Countries Experiencing Serious Drought and / or Desertification, Particularly in Africa (CCDC), which is binding upon Namibia, is directly related to soil conservation and the main international legal document to combat desertification and mitigate the effects of drought in countries affected through effective action at all levels supported by international cooperation. The definition of desertification in this convention relates clearly to soil conservation.19 The effect of the convention however remains limited, as the focus is on capacity building, as opposed to binding obligationsper se.20

The Namibian Program to Combat Desertification (NAPCOD) was established subsequently to the CCDC.21 Relating specifically to soil erosion, the NAPCOD focusses on education and awareness surrounding this issue.22 This is done by means of the Regional Awareness Programme, which aims to enhance the understanding of desertification, soil erosion, deforestation and related issues with local and traditional decision makers. The dissemination of information to communities and the creation of engagement were identified as crucial obstacles in raising awareness. The main educational activities were generally centred at the Gobabeb Training and Research Centre, and included programmes to educate teachers in order to allow for them to subsequently undertake environmental education. Furthermore, media awareness workshops are also undertaken by NAPCOD, aimed at raising awareness of the widespread implications arising from desertification.23 NAPCOD also engages in a range of other programmes related to not only educational, but also practical implementation of efforts to combat desertification.24

Namibia has drafted its Third National Action Programme (2014-2024) to implement the Convention to Combat Desertification.25 NAP3 aims to set forth a framework to allow for the implementation of the UNCCD, for the time period of 2014-2024. It first focuses on illustrating the current obstacles which Namibia faces in regards to the environment, desertification, land degradation and drought processes, and how these pose threats to Namibia’s land-based agricultural sector.26 The document further names poverty and population growth, in addition to unsustainable resource usage and severe impact of climate change. This document also highlights the inadequate institutional and individual capacity and weak mechanisms of cross-sector collaboration for sustainable land management.27 The inadequate application of technology is another related obstacle. The objectives set out in NAP3 aim to address these impediments, by setting six specific outcome targets and proposing tangible and pragmatic solutions, in order to achieve the overall objective to “prevent and reverse desertification and land degradation in affected areas and to mitigate the effects of drought in Namibia in support of poverty reduction and environmental sustainability”.28

Emphasis is placed on improving cross-sectoral collaboration between Government agencies inter se ,29 as well as between relevant actors and research institutes. This is intended to allow for research and subsequent data to be used more effectively when developing and implementing policies and programs.30 Additionally, the NAP3 discusses policies and programs currently in place and proposes improvements where deemed necessary.31

The Convention on Biological Diversity32 is another relevant internationa instrument, as the diversity within species and ecosystems is closely linked and reliant upon the conservation of soils, specifically in Namibia.

However, an overarching and binding instrument concerning soil protection has not yet been drafted. This lack of international guidance is reflected in the lack of national policy and emphasis on an integrated approach to soil conservation.

3 Land Tenure in Namibia

The era of colonial reign over Namibia has skewed land ownership of the country in favour of a white minority. After Namibia acquired Independence, the Government promulgated several laws aimed to implement a comprehensive plan of land reform.33 Even though there have been shortcomings with regards to the overall success of land redistribution in Namibia, a framework for the reform of land tenure, acquisition and ownership was formulated.

Natural persons, the State and legal entities can hold land in Namibia. Overall, the State holds all communal land in trust for the indigenous tribes who reside on the land, in addition to owning all nature reserves, game parks, military bases and certain urban properties.34 The types of land tenure are ownership/freehold tenure; communal tenure; conservancies and leaseholds. Regarding tenure in informal settlements, the practice incepted prior to 1990 of Permissions to Occupy (PTO) still applies but is in the process of being phased out and replaced by leaseholds under the Communal Land Act.35

Ownership and freehold tenure gives owners the rights to property as developed in common law. Most commercial agricultural and urban land is privately owned, amounting to 44% of Namibia’s land.36 The Communal Land Reform Act, in addition to the common law, regulate leaseholds. The Communal Land Board can grant communal and commercial land leases for a period of 99 years.37 Land held in such leasehold may be transferred, inherited, renewed and mortgaged.38

Communal tenure is held in trust by the Government, for the benefit of local communities.39 Traditional Authorities and Land Boards generally administer this land and all such land is registered with the Land Board.40

Conservancies – once established – become legal entities and for such purposes require identified boundaries, a constitution and defined membership in addition to demonstrating the ability to manage finances.41 The Nature Conservation Ordinance of 1975 and its Amendment in 1996 form the legal framework for this type of land tenure.

The occupancy in informal settlements is still in a period of major transition. As stated above, PTOs as issued during the previous administration are in the process of being phased out. However, these give the holder a right to apply for ownership or leasehold rights once these become available.42 The new Flexible Land Tenure Act43 is aimed to provide secure tenure to the large part of the population residing in informal settlements and envisages an alternative system to the formalisation of land rights in this context.44

4 Sustainable Farming in Namibia

With roughly 78% of the country being used for farming purposes and more than 1.2 million people living on such land,45 the preservation of arable land in Namibia is imperative. It must be kept in mind that, even though commercial farming, most often focussed on cattle farming, contributes 7.7% to the GDP,46 farming practices utilised on communal land, impacts the quality of soil and other resources. Thus, in order to fully develop sustainable farming practices, communal farming methods must also be addressed sufficiently. Furthermore, appropriate support must be given to ‘emerging’ commercial farmers, who have received land in the frame of land redistribution in Namibia.

The Third National Action Programme for Namibia (NAP3), is the framework intended to aid in implementing the UNCCD between 2014 and 2024. This programme focuses largely on the importance of sustainable land management in Namibia, in light of its arid climate. The programme also names several problematic practices which need to be addressed in the context of sustainable land management and farming in Namibia. These include overgrazing and overstocking of land, in addition to water and soil degradation. NAP3 further illustrates pragmatic steps which can be taken to address these issues, such as raising awareness and education;47 ensuring reliable data is available which can lay the foundation for new policies and implementation of existing ones and providing for a functional monitoring system.48

Several national policies are also aimed at making sustainable farming the norm in Namibia. The Ministry of Agriculture, Water and Forestry (MAWF) is responsible for soil management and promotion and development of sustainable soil management practices in Namibia.49 The National Agricultural Policy of 1995 promotes the sustainable use of Namibia's land and natural resources,50 in addition to demanding the strict implementation of instruments pertaining to soil erosion, which is widely applicable in the context of sustainable farming.

The National Drought Policy and Strategy of 1997 includes provisions aimed at reducing the long term vulnerability to drought, by means of improving soil fertility and moisture retention, which is only attainable by means of sustainable farming methods. In this light, the Regional Planning and Development Policy of 1997 promotes strategies such as controlled grazing cycles.51 However, some measures envisaged in the Drought Policy, such as the subsidy on fodder, have contradicted this objective.52

The successful implementation of the Dry Land Crop Production Programme by the MAWF has aided in increasing food production and security in Namibia.53 Ongoing research into crops which are adapted to Namibia's climate are clear indications of active steps taken to promote sustainable farming practices.54 The MAWF has also been collaborating with the FAO, the Namibian Organic Association and the French National Institute for Agricultural Research, to continue research concerning sustainable farming in Namibia.55

Case Study: Berg Aukas

The preservation of soil as a natural resource within Namibia is imperative in light of the large reliance on agriculture by great parts of the population.56 Soil degradation can take place in various ways, such as desertification due to climatic influence, soil contamination due to industrial impacts and due to unsustainable farming practices.57 In Namibia, the agricultural use of land, commercially and communally, is widespread. Even though many commercial farmers are able to mitigate negative impacts by means of rotational grazing and continuous monitoring, these opportunities do not generally exist for communal farmers.58

The impact of closed mines has to be taken into account as well, in light of the fact that many abandoned mine sites occupy land in Namibia. The subsequent soil contamination and its influence on continued use of the land for residential and agricultural purposes, is clearly illustrated by a recent study of soil surrounding the abandoned ore processing site at Berg Aukas.59 The site at Berg Aukas served as a mine and roasting site until 1979.60 During the course of the study, the National Youth Service uses the area for residential purposes, as an agricultural vocational school and parts of the area are being used for agricultural purposes.61

Impacts on Water and Soil

Analysis of the water and soil was undertaken during the course of the study. The results of the water analysis overall showed that no material health risk was present, except at three boreholes.62 Overall, the groundwater quality has not been impacted significantly and the only contamination flowed from water which was pumped directly from the old mine shafts.

However, the results of the soil analysis show severe adverse impacts. The soil sampling was undertaken in a comprehensive manner,63 which ensures the reliability of the results. In the area of former mining and processing, high levels of arsenic were detected.64 Elevated concentration of Cadmium encircled the whole area of Berg Aukas, and is concluded to have been caused by emissions from the roasting of ores. Extreme contamination of soil by lead can be found in selected areas, such as in an area of 800m x 600m located in the central and southwestern part of Berg Aukas.65

However this contaminated soil is where the central part of the National Youth Service was located. According to German Guideline Values used in the study, these areas are unsuitable for residential purposes as such lead contamination is hazardous to one’s health. This contamination was likely caused by tailing material having been spilled and such material, in addition to slag, having been used for road construction.66

Slightly elevated levels of mercury were also found.67 However, the most severe contamination is attributed to zinc contamination originating from the former smelting area.68

The agricultural products grown at the National Youth Service site was also tested, and the values found exceeded the WHO limits for food.69

Conclusions reached by the study

The study overall found that severe contamination occurred in the sites previously used for processing of the ores, including smelting and roasting processes. The contaminants were further spread by wind erosion and other natural processes, which led to a larger contaminated area around Berg Aukas.70 It is concluded that persons living and working in this area face health risks from being continuously exposed to the contaminated area.71 The study classifies the severely contaminated area as a high hazardous risk zone, and recommends the site should not be used for further industrial, residential or agricultural developments.

Remediation possibilities spelt out include rehabilitation of the soils by means of covering top soils with organic matter, the removal and proper disposal of contaminated soils and reprocessing of soil where the contamination penetrated deeply into the soil horizon.72 In light of this study, the area was also evacuated by the Ministry of Mines and Energy and relocated to a safer area. The Ministry is further tasked with ensuring remedial action is monitored.

Future use?

In 2014, a preliminary feasibility study was published by China Africa resources, for the “Berg Aukas Project”.73 Apart from extensive research into the financial and geological viability of reopening the mine, the study as discussed above was also shortly addressed.74 It was observed that no remediation or re-arrangement for land usage was undertaken after the National Youth Service was evacuated. However, in compliance with the legal framework regarding mines, Environmental Impact Assessments and Environmental Management Plans will have to be formulated if this mine is to become operational.75 Currently, the final feasibility study is in the process of being initiated.76

5 Land and Agricultural Policies

A number of policies impact on land and agriculture in general and they do have provisions dealing with environmental protection. These policies include the National Agricultural Policy, the National Drought Policy and Strategy, and the Namibia Forest Development Policy. To ensure environmental protection these policies promote Community-Based Natural resources Management (CBNRM). This means that the role of the Government is limited to regulatory functions and the provision of technical support that will enable farmers to improve their capacity to manage resources more effectively. The Government provides the necessary fiscal and administrative support under these policies, while the farmers do the groundwork of managing their land and agricultural resources. However, issues such as bush encroachment require collaborative effort.

5.1 Land-use Planning: Towards Sustainable Development

This policy document drafted by the Ministry of Environment and Tourism in 1994 defines five physiographic land forms: Communal state land; privately-owned commercial farmland; proclaimed state land; urban areas; and wetland systems, including their catchment areas. The policy emphasises sustainability of natural resources, biodiversity and essential ecological processes.

5.2 The National Land Policy

The National Land Policy drafted in 1998 is based on constitutional principles and on the national commitment to redress the social and economic injustices inherited from Namibia’s colonial past. The policy calls for the establishment and proclamation of urban areas as townships and municipalities and strives to promote decentralisation and community involvement. This policy proposes financial and tax incentives for the protection and rehabilitation of natural environments (e.g. planting of indigenous trees and using alternative energy to reduce rates of deforestation and pollution). It states that, in accordance with Article 95(1) of the Constitution, the policy will promote environmentally sustainable land use, and goes further to state that failure to demonstrate environmental sustainability may be grounds for the denying or termination of a title.

One of the aims of this policy is to establish a Land Use and Environmental Board (LUEB) to promote environmental protection and contribute towards coordinated planning and management at national and regional levels. This LUEB shall ensure that environmental protection is promoted in order to guarantee environmental, social and economic sustainability.

5.3 The National Resettlement Policy

This policy provides for resettlement, which is institutionally, socially, economically and environmentally sustainable and will enable the beneficiaries to become self-supporting, in accordance with the basic objectives of the Government.

5.4 The National Land Tenure Policy

The policy covers all land tenure systems in urban, communal, commercial (freehold) and resettlement areas and is intended to guide all land tenure rights in Namibia. The policy promotes sustainable utilisation of the nation’s land and other resources, provides a way to regulate different land tenure right systems, provides secure tenure for informal urban settlers, farm workers and occupiers (those who have been employed less than ten years on a single farm and do not have secure tenure elsewhere), and provides guidelines on compensation for occupiers of expropriated land. In keeping with the National Agricultural Policy (1995), the policy recognises the environmental limitations of a country as dry as Namibia.

5.5 The National Agricultural Policy

The National Agricultural Policy of 1995 provides an enabling environment for increased food production by smallholder producers, as a means of improving employment opportunities, incomes, household food security and the nutritional status of all Namibians. In terms of the National Agricultural Policy, long-term or continuing subsidies will be avoided. However, the policy still allows for the possibility that well-targeted subsidies can play an important part in achieving short-term agricultural and socio-economic objectives. There is an apparent need for a well-formulated policy to provide for the management of the savannahs, whether on commercial or communal land. Such a policy has to create a socio-economic environment that provides incentives for farmers to improve the productivity of their pastures by controlling intruder bush and preventing re-infestation in an environmentally sustainable way.77 At the same time, improved pasture management practices need to be encouraged to minimise the risks of future land deterioration.78

The National Agricultural Policy regards land degradation as a serious problem and recognises that water resources in Namibia are limited and that growth within the agricultural sector should not be at the expense of the natural environment. Furthermore, it encourages the use of Environmental Impact Assessments for agricultural projects and proposes a review of legislation related to the use of agrochemicals. The aims of the National Agricultural Policy are largely economic and focus on increasing agricultural productivity and real farm income as a contribution to national and household food security. It recognises the limitations imposed by the Namibian climate and soils and seeks to promote sustainable utilisation of the land and other natural resources within the context of a vulnerable ecosystem. Potential problems such as deforestation, soil erosion, bush encroachment and over-grazing are addressed.

5.6 The Green Scheme Policy

The Green Scheme Policy of 2003 (GSP)79 makes provision for several irrigation projects to be commenced in Namibia.

The Green Scheme is an initiative conducted by the Ministry of Agriculture, Water and Rural Development to encourage the development of irrigation based agronomic production in Namibia with the aim of increasing the contribution of agriculture to the country’s Gross Domestic Product and to simultaneously achieve the social development and upliftment of communities located within suitable irrigation areas, but to also promote the human resource and skills development within the irrigation sub-sector to possibly enhance cross-border investment and facilitate the exchange of relevant and limited resources with neighbouring countries in this regard.80

The policy emphasises environmental impacts assessment requirements and water pricing methods. However, the implementation has been haphazard and marked by several obstacles. These are most markedly the potential loss of biodiversity if the project is expanded as planned. The GSP has further been criticised for over-emphasising the potential behind irrigation schemes to become the driving force behind agricultural production, in spite of the fact that Namibia is one of the driest countries south of the Sahara.81

5.7 The National Drought Policy and Strategy

The National Drought Policy and Strategy of 1997 shifts the onus of drought management from Government aided relief to appropriate farming techniques aimed at empowering farmers to better cope with droughts themselves. Although incentives such as the Forum for Integrated resource Management (FIRM) promotes this actively in communal areas that participate in the National Programme to Combat Desertification (NAPCOD82 ) recent responses to crop failures in the north and north east have again reverted to relief programmes. Drought preparedness is one of the important aspects of sustainable resource use and strongly advocated in activities of conservancies elsewhere in the country.

5.8 The Regional Planning and Development Policy

This policy drafted in 1997 under the supervision of the National Planning Commission acknowledges trends of increasing degradation of pastures, rangelands and woodland and gives attention to soil, water and forest management as development tools. It promotes strategies such as soil conservation and controlled grazing cycles.

6 Land and Agriculture Related Legislation

6.1 The Environmental Management Act No. 7 of 2007

Although the Environmental Management Act (EMA) does not include any provisions relating specifically to soil protection and management, the definition of environment in Section 1 does include references to “land” and “all organic and inorganic materials”. Furthermore, in Part VII relating to Environmental Assessment, the listed activities which require an environmental clearance certificate to be issued before such activities can be undertaken, include land use and transformation; resource renewal; agricultural processes; waste and sewage disposal as well as any other which the Minister considers necessary for the purposes of listing. These activities can generally relate to soil management and protection, and requiring environmental clearance certificates provides a valuable protection mechanism in this context.

Section 48 in Part IX further allows for the Minister to introduce legislation or make such regulations which give effect to international agreements to which Namibia is a party to. The provision goes on to list areas which can be covered by such legislation and regulations. To date, no regulations relating specifically to soil and related activities or agreements have been promulgated.

6.2 The Communal Land Reform Act No. 5 of 2002

The Communal Land Reform Act provides for the allocation and administration of all communal land in the areas described in the first schedule to this Act or in any area declared to be communal land under Section 16(1)(a). The Minister is obliged to establish Communal Land Boards to perform the functions conferred on such a board by the Act within the area for which each board is established. The boards are to exercise control over the allocation and the cancellation of customary land rights by chiefs or traditional authorities. They have to consider and decide on applications for the right of leasehold, establish and maintain a register and a system of registration of customary land rights and leasehold rights, and give advice to the Minister.

The Act makes provision for the prevention of land degradation and for mitigating the impacts of mining, prospecting, road works and water provision. It provides for certain rights to communal farmers and traditional authorities and representation on Communal Land Boards. Of note is the provision of Communal Land Boards, with representation of officials from the Ministry of Environment and Tourism and the Ministry of Agriculture, Water and Forestry as well as representatives from any of the conservancies.

The President of Namibia may declare non-alienated state land to be a communal area. Communal areas are vested in the state, in trust, for the benefit of the traditional communities residing in those areas and for the purpose of promoting the economic and social development of the people of Namibia, especially the landless and those with insufficient access to land. Customary land rights are to be allocated upon application for a limited period. Only specific customary land rights may be allocated in respect of communal land, and size limits are imposed.

The Act also provides for the recognition of existing customary land rights, and the granting of a right of leasehold for agricultural purposes or a right of grazing on communal land. The Act makes provision for the prevention of land degradation and, therefore, indirectly contributes to the preservation of biological diversity. Fundamental environmental provisions of the Act refer to the allocation of customary land rights. If a land right is being used predominantly for a purpose not recognised under customary law, customary land rights may be cancelled according to Section 27 of the Act. Furthermore, special provisions are made with regard to grazing rights. A chief or traditional authority is vested with the power to prescribe conditions relating to the kind and number of stock that may be grazed on communal land, as well as to the section or sections of the commonage where stock may be grazed, and the grazing in rotation on different sections. This provision, in particular, ensures the sustainable use of grasses and herbs.

Section 45 of the Act addresses issues pertinent to the conservation and sustainable management of certain natural resources. The Minister may make regulations in relation to watercourses, woods and the use of water (Section 45(g)) and to the combating and prevention of soil erosion, the protection of the pastoral resources and the limitation and control of the grazing of stock.

6.3 The Soil Conservation Act No. 76 of 1969

The Communal Land Reform Act 5 of 2002 specifically refers to the Soil Conservation Act (The Soil Act), and as such makes it clear, that this Act remains applicable in Namibia. The Soil Act gives wide ranging powers to the Minister. These include powers to issue directives relating to the cultivation of land,83 the management of water and drainage,84 in addition to the protection and stabilisation of soil surfaces.85

The Act makes provision for the prevention and control of soil erosion and the protection, improvement and conservation of soil, vegetation and water supply sources and resources. Although the jurisdiction of the original Act was limited to commercial land, the recent Communal Land Reform Act of 2002 specifically mentions it and requires compliance in terms of conservation and prevention of soil erosion (Clause 31), implying that these measures apply to communal land areas too.

The Act provides for the construction and maintenance of soil conservation works, at the discretion of the Minister.86 The costs of such construction may be attributed to the state or to owners of such land.87 Furthermore, the Act empowers the Minister to carry out soil conservation for the purposes of research or demonstrations,88 subject to the land owner’s consent.

The Soil Conservation Committees as provided for in Part III of the Act are generally appointed for certain areas, and act in an advisory capacity to the Minister.89 Even though this discretion exists, the Ministry does not seem to currently have such a committee in session.

A wide power to expropriate land is given to the Minster in terms of Section 18. It is stated, that expropriation may be required for the prevention of soil erosion and stabilisation of land, as well as prevention of drift-sand and protection of catchment areas.90

One of the enforcement mechanisms for compliance is set out in Section 21, which provides for penalties in the instance of non-compliance. This conduct is further criminalised as an offence which can be punishable by a fine or imprisonment.91

One of the biggest obstacles which hinder effective soil conservation in Namibia is the fragmentation of responsibilities relating to soil. Even though the Soil Conservation Act remains in force in Namibia, its implementation is haphazard, with Soil Boards not being operational, and duties having been delegated across directorates and ministries.92

6.4 The Agricultural (Commercial) Land Reform Act No. 6 of 1995

Approximately 36.2 million hectares, representing 44 percent of the total land area or 52 percent of agriculturally utilisable land, continue to be held under freehold title. This land is commonly referred to as the commercial farming sector and it is regulated mainly by the Agricultural (Commercial) Land Reform Act of 1995. This Act, as its preamble states, was passed to provide for the acquisition of agricultural land by the state for the purposes of land reform and for the allocation of such land to Namibian citizens who do not own or otherwise have the use of any or of adequate agricultural land, and foremost to those Namibian citizens who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices. The Act vests in the state a preferential right to purchase agricultural land and it empowers the state to compulsorily acquire certain agricultural land for the purposes of land reform. It also regulates the acquisition of agricultural land by foreign nationals and establishes a Lands Tribunal to adjudicate disputes that may arise in land matters.

6.5 In the Pipeline: The Land Act

In 2007, a process of reviewing and amending the Agricultural (Commercial) Land Reform Act93 , and the Communal Land Reform Act94 , into one Land Act was started. Although this process had been finalised in cooperation with relevant stakeholders,95 a respective Bill has not gone to Parliament.

6.6 The Agricultural Pests Act No. 3 of 1973

This Act deals with the registration of nurseries, the control and eradication of plants, insects and diseases at nurseries, the control and eradication of exotic (vertebrate) animals (excluding farm animals) and plants infected by insects or plant diseases, control of plant, insect and plant disease imports, honey bees, honey and exotic animals, the eradication of plant diseases, insects and locusts, as well as defining the powers of inspectors. It is essentially aimed at preventing the introduction and spreading of plants, insects, non-farming exotic vertebrates and diseases that may prove detrimental to the agricultural sector. Section 9 provides for the destruction of exotic animals as well as any plants infected by insects or disease. Section 11 serves to regulate plant and exotic animal imports, prohibiting the import of plants, insects, plant diseases, honey bees, honey, beeswax or exotic vertebrates without permits, whilst Section 12 allows the importation of biological control agents needed for the control or eradication of weeds and pests. There is potential to amend this Act to incorporate a wider spectrum of alien invasive species and make use of the existing measures of inspection and enforcement administered jointly by Customs and Excise and the Phytosanitary Section in the Ministry of Agriculture. This Act will be repealed by the new Plant Quarantine Act96 although any permits issued under Section 11(1) that are in force at the commencement of the new Act will remain valid and deemed to be permits as specified in Section 4(1).


1 GRN (2007b:1).

2 This Chapter is based on Ruppel / Bethune (2007) and Hinz / Ruppel (2008b).

3 Klintenberg / Seely (2004).

4 NSA (2012:56).

5 Iyambo, N, then Minister of Agriculture, Water and Forestry in his foreword to Mendelsohn (2006).

6 HSF (2012:15).

7 Mendelsohn (2006:10).

8 MET (2006:1ff.).

9 Klintenberg / Seely (2004:7).

10 Alori / Nwapi (2015:105).

11 Text available at http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=62&ArticleID=553&l=en; accessed 16 November 2015.

12 Alori / Nwapi (2015:105).

13 Ibid:106.

14 Introduction to the 2015 Revised World Soil Charter seehttp://www.fao.org/fileadmin/user_upload/GSP/docs/ITPS_Pillars/annexVII_WSC.pdf; accessed 16 November 2015.

15 See Section 3 of the Revised World Soil Charter.

16 28 October 1982, UN GA, A/RES/37/7; text available athttp://www.un.org/documents/ga/res/37/a37r007.htm; accessed 16 November 2015.

17 United Nations Conference on the Environment and Development, Agenda 21, UN Doc a/ CONE151/4 (1992).

18 Alori / Nwapi (2015:106).

19 “Land degradation in arid. Semi-arid and dry sub-humid areas resulting from various factors including climatic variations and human activities.”

20 Alori / Nwapi (2015:107).

21 Seely / Montgomery (2009).

22 Ibid:viii.

23 Ibid:100.

24 These include workshops for farmers and farm managers relating to the prevention of soil erosion and sustainable farming practices, community projects allowing for an increased food and social security standard and general institution and capacity building.

25 See GRN (2014d).

26 Ibid:3.

27 This specifically refers to overlapping and contradictory capacity of Ministries and Departments with opposing goals.

28 GRN (2014d:13).

29 Ibid:44.

30 Ibid:46ff.

31 Ibid:31ff.

32 1760 UNTS 79, 5 June 1992.

33 USAID (2014:3).

34 Ibid:6.

35 No. 5 of 2000.

36 USAID (2014:6).

37 Sections 2 and 3 of Act No. 5 of 2000.

38 Amoo (2014:234).

39 USAID (2014:6).

40 Ibid. The land is allocated by the traditional authority for residential or agricultural use, as well as other uses as recognised by the Minister.

41 Ibid.

42 Ibid.

43 No. 4 of 2012.

44 USAID (2014:6).

45 Mendelsohn (2006:10).

46 Seehttp://www.indexmundi.com/namibia/gdp_composition_by_sector.php; accessed 20 November 2015.

47 Seely / Montgomery (2009:98ff.).

48 GRN (2014d:15).

49 MAWF (2014:8).

50 GRN (1995c:para. 21).

51 GRN (1995c).

52 The fodder subsidy has been criticised for leading to unsustainable farming practices, since its inception. See Vigne / Whiteside (1997:51).

53 MWAF (2014:18).

54 MAWF (2014:41).

55 Seehttp://www.fao.org/africa/news/detail-news/en/c/296655/; accessed 20 November 2015.

56 Mendelsohn (2006:10).

57 GRN (2014d:23ff.).

58 Ibid:28. They are generally restricted by the size of the land allocated to them as well as with regards to the technical knowledge and fiscal means.

59 The case study will form the basis for the discussion in this section. See Mapaniet al . (2009:25).

60 Ibid. The ore contained lead, vanadium and zinc.

61 Ibid:26. The agricultural land is an experimental crop farm.

62 Ibid:27.

63 Ibid:28.

64 Ibid:29.

65 Ibid:30. The concentrations varied from 10,000 ppm, with a further 1 km halo surrounding this area in which concentrations between 400 and 10,000 ppm were measured.

66 Ibid:32.

67 With a maximum concentration of 9.6 ppm.

68 Ibid:32. The value vary between 107,000 and 377,000 ppm.

69 Ibid:33. The values of arsenic, lead and zinc were primarily evaluated.

70 Ibid:34.

71 The health risks arise form inhalation and ingestion of dust and crops grown in the area.

72 Ibid:35.

73 China Africa resources (2014).

74 Ibid:79.

75 Ibid:80.

76 See http://www.lse.co.uk/AllNews.asp?code=mjh0foc8&headline=UPDATE_China_Africa_resources_Loss_ Narrows_Focus_On_Berg_Aukas_Mine; accessed 20 November 2015.

77 Groenewaldt (2008).

78 Ibid.

79 Text available athttp://www.iwrm-namibia.info.na/downloads/green-scheme-policy---final1.pdf; accessed 16 November 2015.

80 Green Scheme Policy para. 1.1.5.

81 See GRN (2005b:12).

82 Bethune (2003).

83 Section 3(1)(a).

84 Section 3(1)(c), (d), (f).

85 Section 3(1)(e), (g) and (h).

86 Part II of the Act.

87 Section 7(2).

88 Section 8.

89 Section 9 (1) and Section 10.

90 Section 18(1).

91 Section 21(1).

92 See LAC (2009).

93 No. 6 of 1995.

94 No. 5 of 2002.

95 GRN (2012d:7).

96 No. 7 of 2008.