WOMEN'S Action for Development (WAD) argues that the Affirmative Repositioning (AR) movement's proposal to ban foreign nationals from owning land may not pass the legality test.
WAD attended the public hearing by the parliamentary standing committee on a petition by the AR yesterday, which calls for the regulation of land ownership by foreigners and the urgent passing of legislation in this regard.
The AR is also calling for the regulation of the right to acquire property by non-Namibian citizens.
WAD legal resource person Verinao Kamahene said the AR bill, in terms of communal land and customary land rights, effectively advocates the repeal of the Communal Land Reform Act.
He said the bill in its current form would pose a problem for existing rights, which warrant protection. These rights can be linked to the Bill of Rights under chapter three of the Namibian Constitution, which speaks to the right of equality.
He said there is no distinction to say that foreign nationals do not have human rights.
"The AR is saying that foreign nationals should not acquire customary land rights for any purpose and any such allocation which was granted earlier should be declared invalid or an unlawful transaction. I am just paraphrasing," Kamahene explained.
He went on to say that there are foreign nationals who have entered into leasehold agreements with traditional authorities, of which approval was in line with the amended Communal Land Act.
Kamahene says the AR's proposed bill should adhere to the spirit and object of the Namibian Constitution,which is the supreme law of the land.
"Otherwise, such an act of parliament or proposed bill will not pass the test of enactment, which means parliament will not pass a law that violates the Constitution."
Kamahene further said there is unfair and fair discrimination, for instance affirmative action, which is justifiable discrimination.
He further called on the AR to provide a clear definition of what they mean by a foreign national and a Namibian citizen, and not "blatantly refer to article four of the Namibian Constitution".
This is particularly to include foreign nationals who are married to Namibians, and in the event the spouse dies, the foreign national can be entitled to land.
Kamahene added that there are existing regulations on foreign ownership of land, which are part of the 2013 amendment of the Land Act.
"Section 17 of the act, provides as follows: a foreign national who wishes to acquire customary land or right of leasehold must first obtain written authorisation of the minister before he/she applies such right."
The problem, however, may be the fact that the minister has discretion to set the criteria for foreign nationals to acquire land, it is thus necessary to establish a commission which would make recommendations to determine whether to approve an application from a foreign national or not.
WAD national training coordinator Absai Kashululu was not in favour of allowing an individual to have all the power to approve or disapprove such an important aspect of a natural resource.
"It is better to have a commission, having different brains and expertise around the table to make a decision."
Namibia Agricultural Union (NAU) president Pieter Gous last week also said the push by the AR movement is unconstitutional and has serious implications on foreign direct investment.
Meanwhile, committee member Tangeni Iijambo stated that although he agrees that laws should be in line with the Constitution, it was influenced by five Western countries that did not take Namibia's norms, cultures and values into cognisance.
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"I personally reason that the members of the Constituent Assembly failed us, they failed the country because they agreed to all this. What is going on in Namibia is unacceptable. Foreign nationals have to be protected, but within the parameters of Namibian laws and regulations, not for them to be supreme as they have been before independence," he stressed.
He added that article 16 is problematic because it protects private property which previously disadvantaged Namibians did not have before independence.
"What is so cardinal that we need to protect private property that was not ours constitutionally? The majority population that was formerly disadvantaged are worse off, while they are supposed to enjoy their constitutional rights," he stressed.
