The Land bill currently being considered by the National Assembly will replace the 1995 Agricultural (Commercial) Land Reform Act and the 2002 Communal Land Reform Act. Here is a look at the bill’s provisions with particular relevance to women.
Widows’ rights to remain on communal land
On the death of the holder of a communal land right, the right reverts to the traditional authority for re-allocation.
The land right must go to the surviving spouse of the deceased, if the spouse wants it.
Failing the spouse, the right goes to the child or children of the deceased who the chief or traditional authority identifies as being entitled to the right under customary law – again if they wish to take up the right.
Next in line is a family member of the deceased. If none of these persons are present, or none wish to take on the right, it can then go to anyone.
For the purpose of determining who is entitled to a customary land right, the chief or traditional authority concerned must consult with members of the family or families concerned.
Neither the current law nor the new Land Bill acknowledges the possibility of multiple surviving spouses, with no provisions on how to proceed in such cases.
The current law details the procedure in the case where the surviving spouse remarries.
This is absent from the current bill – but it is probably not necessary since the basic rules for reallocating communal land rights upon the death of a rights-holder apply in all cases, including cases where there have been successive marriages.
Bequeathing communal land rights by will
An important change is that the Land Bill includes a new provision allowing wills to trump the rules on reallocation.
In other words, if there is a will bequeathing the communal land right to someone, the rules on reallocation of the land right to the surviving spouse and children do not apply.
The rights holder can will the right to anyone he or she wishes – with the caveat that a will cannot be used to circumvent the prohibitions on the acquisition of customary land rights by foreign nationals.
This provision could undermine the protection for widows in practice, leaving them without a home.
It should be noted that there is no protection for a widow or widower’s right to remain in the matrimonial home in any other context in Namibia, since wills can be used to bequeath property to anyone.
But this is contrary to the promise of the SADC Protocol on Gender and Development, which states that “a widow shall have the right to continue to live in the matrimonial house after her husband’s death”.
It is also contrary to the Protocol to the African Charter on the Rights of Women in Africa, which guarantees that “a widow shall have the right to continue to live in the matrimonial house”.
The primacy given to wills in respect of communal land could also have the effect of “privatising” communal land by means of a succession of wills.
Group rights
The Land Bill introduces the option of a “group right”. This means a right to communal land held jointly by two or more people.
This mechanism is a welcome innovation that could be used to protect the rights of spouses and other household members, who could act as a group for the purpose of registering the communal land right.
Where the land right is a group right and one of the group members dies, the right remains with the remaining group members – although it appears that individual group members could still make use of wills to bequeath their interest in the group right.
Allotment of commercial agricultural land
The Land Bill, like the existing law, provides for the allotment of leases on commercial farm land to disadvantaged individuals or groups of people, in order to address social and economic imbalances and bring about equitable access to land.
The rules for what happens in the case of death of a lessee are the same as those that apply to communal land rights holders: the land reverts to the state for reassignment to the surviving spouse, followed by the child or children of the deceased, followed by any other family member or other person, with family consultation being suggested but not required.
But here again, disposition of the lease by means of a will overrides the rules on reallocation.
The bill is silent on the situation where commercial agricultural land is allocated to a “group of persons” and one of them dies, suggesting that it might not be feasible to use this concept to protect the interests of the members of a household.
Women’s representation on decision-making bodies
This is a particularly weak point in the Land Bill, with women’s guaranteed representation shrinking and no requirement for gender balance.
Communal land boards must have at least 15 members, and only two of these members must be women (7.5%).
In contrast, under the current Communal Land Act, four seats are reserved for women with the smallest possible board being made up of 11 people, which would equate to 36% women.
The Land Reform Advisory Commission that advises on matters related to commercial agricultural land guarantees only two out of 13 seats for women (15%) – compared to two out of 12 seats for women (16%) under the current law.
The under-representation of women means that women’s land use interests are much less likely to be addressed and protected.
It also contradicts the goal set out in the SADC Protocol on Gender and Development of endeavouring to ensure that women constitute at least 50% of decision-making positions in the public and private sector.
The current land laws are not sufficiently strong on this issue, but the Land Bill’s inattention to gender balance is a step backwards.
What could make the Land Bill stronger for women?
The following are some suggestions for adjustments that could improve the position of women in respect of land:
- Require joint automatic registration of all land rights for married persons as a “group”, unless they request otherwise.
- Extend the protections for “group rights” to allotments of farming units on commercial agricultural land, and clarify the protection for surviving members of a family or household in a group allocation even if there is a will.
- Add measures to protect the rights of surviving spouses to reside on communal land or allocated farming units regardless of whether there is a will.
- Strengthen widows’ rights by adding provisions to protect all surviving spouses in polygamous marriages.
- Mandate gender balance on all decision-making bodies established under the law.
- Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible.
