Justice delayed is justice denied: San land rights in Tsumkwe District

Saskia Sheehama

Readers may be familiar with numerous articles over the last 15 years detailing disputes over land, illegal grazing and illegal fencing in Tsumkwe District. Typically, these are reports of groups trying to get land in the area without the consent of the local San population, and not following normal land allocation processes. It often seems easier to do this in San areas than other places in Namibia.

What readers have not been seen in those years are the conclusions of those stories.

‘Nyae-Nyae invasion grows, more arrested’ (2009) never really ended; ‘Illegal farmers dig in at N‡a Jaqna’ (2017) is still not resolved.

While farmers, connected businesspeople and officials break the law for their slice of land or timber, the !Xun San of N‡a Jaqna Conservancy in Tsumkwe West and the Ju’/hoansi San of Nyae Nyae Conservancy in Tsumkwe East have been following the law.

In July 2015, the Nyae Nyae Conservancy and Ju’/hoansi Traditional Authority opened a case against four individuals after their cattle were recorded grazing within the conservancy without the permission of the Ju’/hoansi chief, Tsamkxao ‡Oma.

Two of the four accused were farmers who took part in the 2009 ‘invasion’ of Nyae Nyae, where the veterinary fence was cut near Gam and almost 1 000 cattle were illegally brought into the area. (The perpetrators were later compensated for the eventual seizure of those cattle).

Cases drag on

In April 2016, after complaints by Chief ‡Oma about the lack of police investigations into the case, Inspector General Sebastian Ndeitunga intervened and investigations were promptly carried out.

With the first hearing in the Tsumkwe Magistrate’s Court set for August 2016, the process seemed back on track. Today, after six years and many postponements, it has still not been concluded. A second case opened in late 2016, regarding two individuals accused of illegal grazing, had its first hearing in 2020.

A parallel civil case against seven individuals in the High Court (including four farmers from the 2009 ‘invasion’) was decided in favour of the Nyae Nyae Conservancy in 2018, evicting the seven from the conservancy. However, after complaints from the accused’s lawyer, the conservancy agreed for the case to be heard again in 2019. The original ruling in their favour was withdrawn, and the case was dismissed due to a poor quality signature on an affidavit commissioned at the Tsumkwe police station.

Meanwhile, in the neighbouring N‡a Jaqna Conservancy, a 2016 High Court ruling evicted 22 farmers who had illegally fenced areas without permits. Yet, that ruling has barely been implemented. The conservancy continues trying to stem illegal fences and illegal boreholes in wildlife zones on an almost daily basis, with little government support.

Community members are angry and disappointed. One group we spoke to did not want to be identified for fear of reprisals. “Our future and that of our children is uncertain. We don’t practice our culture any more. Rich and politically connected farmers and their cattle have occupied the areas which have our natural resources. Our food and medicinal plants are being destroyed by the cattle.

“Land allocation should be stopped in Tsumkwe so we work on the Illegal issues first. This is draining our energy - we get poorer and, as a result, crime is increasing in our villages. We are supposed to follow the law, but it looks like some people don’t obey the law and are enriching themselves with the little resources we have left.”

Laws broken

The basis of the court cases is simple: The national laws of Namibia were broken. The Communal Land Reform Act and the Forest Act require permission to use natural resources and lands that belong to another community. And yet, the government staff employed to uphold those laws in the Tsumkwe District have ignored people breaking them.

The evidence, efforts and burden to prove the law has been broken have been placed solely upon the San communities.

The Ju’/hoansi and !Xun have no choice but to keep trying to uphold the national law – it’s the only land they have, unlike many of the people breaking it. In its first sentence, the Namibian Constitution recognises the equal and absolute rights of all Namibians to justice. Where is that justice in the Tsumkwe District?

The long-term potential negative impact of the illegal grazing by cattle and the illegal fencing of farms boasting the devil’s claw resource - with its potential as an income generating opportunity for harvesters in both Nyae Nyae and N#a Jaqna - is considerable and needs to be addressed as a matter of urgency.