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


Peter Koep and Meyer van den Berg

1 Background

The independence of the Republic of Namibia on 21 March 1990 brought with it increased attention and interest in the country, its people, its resources and its environment. Prior to independence it would have been unusual for a financier or developer to insist on an Environmental Impact Assessment (EIA) before agreeing to finance and/or develop a particular project. This changed with the independence of Namibia and the enactment of the Constitution, which specifically provides for the:

… maintenance of ecosystems, essential ecological processes and biological diversity of Namibia and utilisation of living, natural resources on a sustainable basis for the benefit of all Namibians, both present and future; in particular, the Government shall provide measures against the dumping or recycling of foreign nuclear and toxic waste on Namibian territory.1

But not only was this introduced in Namibia, it was a trend which was adopted world-wide and with the increased demands made by a growing world population, the protection of the environment has taken on a different meaning in that an EIA is aconditio sine qua non for obtaining permission to proceed with a development that could alter the natural environment. Furthermore, financial institutions around the world are reluctant to finance a project which is not environmentally friendly and which has not received the approval by the appropriate authority.

The preparation of an EIA and to a greater extent the protection of the environment is a cost factor with which every developer has to contend. When instructing an environmental consultant, that consultant must on the one hand take into consideration the pressure which a developer exerts in wanting their development to become a reality, and to, above all, become profitable for its shareholders, while at the same time not putting their professional integrity on the line when it comes to making recommendations which may not be popular or which may make the whole scheme more expensive in order to protect the environment as it is inevitable that mining activities will have a negative impact on the environment.

2 Ohorongo’s Mining Activities

Ohorongo Cement (Pty) Limited obtained Mining Licence No. 153 on 14 July 2008. This entitled Ohorongo to prospect and mine for minerals necessary for the production of cement. A cement plant was erected on the Farm Sargberg, situated approximately 30km north of Otavi and 40km south of Tsumeb, on the western side of the B1 north-south highway. The Mining Licence was only granted after the Ministry of Mines and Energy had studied and evaluated an EIA in respect of the proposed plant. The conditions of that Mining Licence are that:

The holder of the mining licence shall observe any requirements, limitations or prohibitions on his or her mining operations as may in the interest of the environmental protection, be imposed by the Minister.

The holder of the mining licence shall undertake an Environmental Impact Assessment over the area covered by the mining licence, formulate and forward to the Ministry of Mines and Energy for approval an Environmental Management Plan Report (EMPR) within six (6) months from the date of issue of the licence. The EMPR should specifically address, amongst others, the water supply and sustainability for the life of the mine.

The holder of the mining licence shall enter into an Environmental Contract with the Ministry of Environment and Tourism and that of Mines and Energy once the EMPR is approved.

The holder shall come up with a concise approach on how the land issue is going to be addressed and how mining operations are to be conducted in terms of land rehabilitation.

The holder of the mining licence shall create an Environmental Trust Fund for the purpose of Environmental Rehabilitation and aftercare.2

This must be read together with the obligations of holders of mineral licences contained in the Minerals (Prospecting and Mining) Act.3

3 The Environmental Impact Assessment

The EIA was drafted and compiled by Colin Christian & Associates CC. The approach to the Scoping Report was:4

  1. Public participation meetings;
  2. Consultations with Authorities;
  3. Consultation with Specialists;
  4. A field trip;
  5. Review of literature;
  6. The RSA DEAT (1992) checklist of Environmental Characteristics.

Those mining activities which were most likely to have a negative impact on the environment were identified in the Scoping Report as:5

The other prerequisites are dealt with in the report itself.

The Environmental Impact Assessment and Management Plan was also prepared by Colin Christian & Associates CC in February 2008. It dealt with related matters as follows:

3.1 Water

As the site is situated within a subterranean water controlled area7 , a permit would be required to drill boreholes and to utilise the water for industrial and domestic purposes.

A borehole was sunk into the dolomite formation and the water level was found at 31.52m below the ground surface. A yield of approximately 4m³ per hour was achieved and a draw-down of 9.72m was recorded. As the yield from one borehole would have been insufficient, it was suggested that another three boreholes be drilled in order to deliver approximately 70,000m³ per year. In fact, as a result of the technology used very little water would be used in the cement production process and it would only be used in the process of grinding the clinker. Most of the water consumption would, in fact, be for domestic use, such as the washing of vehicles, the courtyard, the gardens and for dust suppression (insofar as this may still be necessary).

3.2 Vegetation

It was noted that none of the species listed and found in the project area had a special status and it was found that no species would be regionally threatened by the project8 .

Concomitantly, the report proposed that “trained personnel working with the machine on the ground [be used]” as a possible environmental harm mitigation method during the cement plant construction and installation phase. It goes on to suggest that “a person who is acquainted with the species of protected bushes and trees should walk ahead of the machine in order to identify to the operator protected species and so ensure their protection.”9

In order not to fall foul of any of the provisions of the Nature Conservation Ordinance of 1975, it was stated that the Operator (and Ohorongo) should take all possible steps to ensure that protected plant species, as well as the eggs of protected and huntable bird species, were not disturbed or destroyed.10

3.3 Animals

A separate study was undertaken by the zoologist M. Griffin, who found that there were a number of amphibians, reptiles and mammals in the area and he came to the conclusion that whereas 92 species of mammals were expected to occur within the cement plant development area, and that as the footprint of the proposed development was relatively small, the mammal fauna should not be affected enough to alter the national conservation status of any species. He recommended that effort should be made to prevent Ohorongo staff from collecting firewood and wildlife from the area adjacent to the development area and that the disruption of the natural surface substrate, in particular the rock outcrops, should be kept to a minimum. He also found that as far as amphibians, reptiles and mammals were concerned, no species were expected to be affected to the extent that their regional or national conservation status would be degraded.11

3.4 Dust

As far as dust was concerned, all facilities would have de-dusting filters (baghouse filters with maximum dust emissions of 20mg per m³). The average was below approximately 10mg per m³.

Approximately 80% of the total dust emissions were less than 10um (PM10) (i.e. extremely small particles which have the potential for human health impacts if concentrations exceed international emissions standards for these small particles). The total dust emissions, including PM10, would be within the limits of international emissions standards (to question this in the light of tarring the road). All dust emissions levels would be according to international standards and/or far below European legal provisions. In fact, all the requirements of environmental principles as set out in ISA14001 would be implemented with technical equipment.12

3.5 Noise

Noise is from blasting, vehicles and the plant itself.

3.6 Air Pollution

In light of the fact that Ohorongo uses sophisticated filters, it is unlikely that it would commit an offence in terms of the Air Pollution Prevention Ordinance (APPO).

4 Rehabilitation

In terms of the Mining Licence, Ohorongo was compelled to register a Rehabilitation Trust into which sufficient funds would have to be transferred for the rehabilitation of the mining area on the eventual termination of the mining activities.

Even though the scoping report and the EIA referred to legal and policy requirements which had to be observed and taken into account, these were, it is submitted, insufficient in order to give legal force to implement the constitutional principles referred to earlier13 . Namibia does not yet have a central environmental statute, or an overriding statute, covering all environmental sectors which clearly determine the principles of environmental policies, their aims and objectives and the control mechanisms. Much of the environmental legislation was inherited from South Africa at the time of independence and was therefore out-dated and fragmented.

The Minerals (Prospecting and Mining) Act14 was one of the few pieces of legislation which imposed various duties on the holder of a licence to, for example, prepare an EIA, provide details of the impact of mining activities on the environment, etc.15

The true value of any law lies in its efficacy and its enforcement. Laws which are not enforced or not enforced consistently lead to confusion and tend to be ignored by those against whom they should be enforced and for whom such laws were ultimately made. Whereas the Ministry of Mines and Energy previously had in their employ mining inspectors, whose duty it was to control the adherence to and the implementation of the conditions contained in mineral licences, there were no longer such dedicated inspectors. There were few, if any, known instances where these laws were being enforced and more specifically where the environment had in fact been damaged. In terms of the Minerals Act, the Minister has the authority to close a mine should it not adhere to the conditions of its licence or fail to comply with those directives.16

In an under-regulated society such as Namibia, it often depends on the integrity of the investor to what extent that investor takes it upon itself to comply with international environmental standards. An example of self-regulation, to be emulated, is that of the uranium mining industry, which had, as a result of poorly-constructed legislation prescribing regulation of the sector, implemented its own form of regulation. Every producer and most of the licence holders of nuclear fuels voluntarily became members and have contributed financially to the maintenance of the regulator and undertook to observe and adhere to agreed rules and regulations.17

The actual construction of the Ohorongo Cement plant was another example of self-regulation. As the site on which the plant was built is situated on agricultural land,18 the design and the construction was not subject to any building regulation other than those which the owners decided to impose upon themselves. The EIA also did not touch upon issues such as the building of sewers, the depth of foundations, height restrictions, etc. The decision to build the most modern plant using the best available technology by a world-renowned construction company was motivated by a commitment to professionalism and compliance with generally accepted standards, none of which was imposed by legislation.

From the outset, the promoters of the Ohorongo Cement Plant19 had a vision that alternative fuels should be used to fire the kiln of the plant. They also operated various cement plants in Europe, one of which was fired exclusively by alternative fuels while others used mostly alternative fuels.

In their endeavour to identify alternative fuels, the promoters struck upon the idea of using invader bush, so prevalent on much of the farmland in the northern parts of Namibia. Studies were conducted, samples of invader bush were taken to Germany, their energy content determined, and it was concluded that if sufficient amounts of invader bush could be harvested, it could be used to fire the kiln to such an extent that only 20% of the fuel required would consist of coal and that the remainder would consist of alternative fuels, mainly invader bush.

In line with the modern approach and in keeping with the Namibian Constitution, and for this Energy-to-Fuel-Project, an EIA was prepared.20 The EIA described in some detail the most relevant aspects of the project environment and highlighted those parts of the environment, which could be affected, such as climate, topography, geology, soils, vegetation, animals, birds, arthropods as well as the socio-economic impact.21

Even though there have been many attempts to clear invader bush by various means, including mechanical, mechanical combined with manual labour, manual labour only and chemical, none had been as potentially invasive or on a similar scale to what was described in the EIA.

The scale of the bush-to-fuel project was a first of its kind in Namibia. The effects of the bush clearing and the methods used would be of importance to the future sustainability, not only of this, but also of other similar projects. Bush clearing activities were being used in order to generate electricity from invader bush. Other such projects are planned.22

This project is of potential interest to the farmer/landowner, as it would open up areas for utilisation that were previously of little, if any, economic value. As a result of traditional energy resources becoming expensive and scarce, this has changed. All of a sudden a piece of land, which previously could not be used due to sometimes impenetrable invader bush, opened up new possibilities to its owner and to the parties wanting to make use of such bush.

However, there was another side to the coin, which was unexpected and amounted to a new revelation. Throughout the report, the author was careful to highlight the importance of what he referred to as the “aftercare” and the tension between the needs of EFF and the needs of farmers:

The services offered by EFF will be limited to cutting and transport of the material to the processing plant near the cement plant. EFF will not undertake any aftercare activities….23

For many cattle farmers the ideal would be to achieve a stable state of open savannah matrix with optimum grazing productivity. The degree to which they can achieve this ideal would depend, again, on species, environmental conditions, rainfall etc., but also the resources committed to aftercare, the methods used therefore and the time spent thereon. To the extent that the farmer was successful in achieving the ideal of sustainable grazing, he would reduce the bush cutting potential of the area in question.24

The author of the report goes into greater detail as far as aftercare was concerned:

The most important economic benefit is expected to be increased rangeland productivity for many commercial farmers. In order to optimise this benefit, farmers would be well advised to do aftercare to control the regrowth of encroacher bush species……

…. aftercare is likely to deliver the best environmental outcomes and the more sustainable grazing resources……

….If aftercare is not implemented especially wheresekelbos is dominant, the result is often increased bush densities after a few years, resulting in a worse problem as before….25

An important part of an EIA is to be able to hear, assess and report on the views of the public, especially those immediately affected by the activities of the company.26

A description of the Public Participation Process was included in the Plant Report.27

All previous attempts at bush clearing, apart maybe from the use of chemicals, did not require an EIA and whether or not there was compliance in all or some of the instances is uncertain.28 As a result of a dearth of legislation regulating the clearing of invader bush, it has been left up to the farmer/landowner to employ those means which he/she can afford and the manner best suited to the particular circumstances. As a result, there was little if any scientific record available to guide EFF, or indeed the author of the EIA.

The Ohorongo cement plant would have capacity of producing approximately 700,000 tonnes of cement per year. For this it would need between 70,000 to 75,000 tonnes of coal per year at full production. However, by substituting 85,000 tonnes with invader bush chips, it would be possible to save 55,300 tonnes of coal per annum, this being a saving of an estimated 73% to 79% per year29 .

Machines would be built, which would be track mounted, in order to be manoeuvrable and therefore be able to selectively harvest the bush. It would cut and shred the bush and blow the chips into a hopper which would be situated behind it. These wood chips would be stored and further processed to reduce the size, in order to be able to be blown into the furnace for rapid combustion in the kiln.

It was proposed that blocks of at least 200ha would be cut per farm per year, it being estimated that approximately 4,000ha per year would yield the required amount of bush chips.

The key motivations for the project were to:

It was estimated that it would take 75 years to clear 4,000ha per year of invader bush within a radius of 75km from the cement plant. This was without harvesting the same land twice during that period.

The idea to use invader bush as an alternative source of fuel and at the same time combating bush encroachment was an innovative idea which should benefit the shareholders of Ohorongo, as well as farmers, as the techniques of combating invader bush develop. As a result of unexpected technical difficulties this project has not progressed as was intended. However, the promoters of the plant remain committed to the idea of replacing as much coal as possible with invader bush for all the reasons mentioned in this article.


1 Article 95(l) of the Constitution of the Republic of Namibia.

2 The terms of Mining Licence 153.

3 No. 33 of 1992. See Section 98 of the Act.

4 Colin Christian Environmental Scoping Report, page 4 (“the Report”).

5 Page 23 and 24 of the Report.

6 In the meantime the access road has been tarred.

7 GN 1969 of 13 November 2010 in terms of Proclamation 278 of 31 December 1976.

8 See page 10 of EIA.

9 See page 111 of the Report.

10 As this will be almost inevitable and impossible to ensure it may be advisable to apply for a permit from the Ministry of Environment and Tourism.

11 See the EIA, page 16 and the report referred to there.

12 See page 7 of the Report.

13 Article 95(1) of the Constitution of the Republic of Namibia.

14 No. 33 of 1992.

15 For further details see Chapter 13.I on Mining and Energy in Namibia.

16 Section 55 of the Act.

17 To obtain information, contact the Uranium Institute, c/o the Chamber of Mines, Swakopmund.

18 See Section 1 of the Agricultural (Commercial) Land Reform Act No. 6 of 1995, as amended.

19 Schwenk Zement International KG.

20 See Environmental Impact Assessment Report April 2010 prepared by Colin Christian & Associates CC.

21 Page iii of the Report.

22 There are bush clearing activities by the CF.F.

23 See page 88, 8.10.7 of the Report.

24 See page 89 of the Report. It is submitted that this will be of little concern for EFF, as at harvesting rate of 4,250 ha/year it would take 78 years before it would be necessary to return to the areas already harvested, see page 90 of the Report.

25 Page 112 of the Report.

26 Part of the cement plant study.

27 Page 14.

28 Attempts to establish this from the responsible authorities proved impossible.

29 See the Report, page 2.

30 See EIA report, page 2.