Press Release: HAI||OM PEOPLE SEEK RIGHTS OVER THEIR ANCESTRAL LAND (LRC in Namibia)
Published by Legal Resources Centre 26 November 2018
For Immediate Release: 26 November 2018
The Legal Assistance Centre (LAC) assisted by the Legal Resources Centre (LRC)is in the High Court of Namibia on 26-29 November 2018.
The nine applicants members of the Hai||om people; seek to launch an action on behalf of the Hai||om people as a whole in order to determine their rights over their ancestral land. Before the applicants are able to procced with the proposed action, they must first seek an order from the court granting them leave to represent the Hai||om people as a whole. The land that forms the basis of the applicants claim consists of the Ethosa National Park (‘the Ethosa lands) and eleven farms in Mangetti West.
Context of the Applicant’s Claim
On 1 May 1954, all the Hai||om people living in the Ethosa lands (aside from 12 employed families) were forcibly evicted by the Native Commissioner of Ovamboland. The Hai||om people living in Mangetti later suffered encroachment of their land from the 1970s, when the apartheid administration encouraged OshiWambo farmers to settle on the land and installed infrastructure there to support the white farmers in the area.
Namibia gained independence in 1990, but the lives of the Hai||om people continue to remain deprived of their land, wildlife and natural resourced to practice their traditional lifestyle and culture and remain poor, dispersed, marginalized and subject to ongoing discrimination.
Issues to be decided by the Court
The issue before the court at this stage of the proceedings is; How should the Hai||om people approach the Court to assert their rights. The applicant members of the Hai||om contend that the best and only way to assert the rights of the Hai||om people, as a whole is through representative action that is brought on the Hai||om’s people’s behalf.
The public interest in this case is that Namibian courts have not previously considered the rights of indigenous people to the restoration of their rights in land. Further this will be the first time that the Courts will consider how indigenous people should be represented in litigation.
The Courts will therefore have to consider:
whether the common law should be developed to permit this type of representative action;
if so what should the content of the common law development be;
do the Hai||om people have a potentially tenable claim for the return of their land, or compensation for its loss.
The relief that the applicants hope to achieve is that:
The nine applicants be granted leave to represent the Hai||om people ;
LAC be given authorization to act as the legal representatives for the Hai||om people to institute and prosecute the proposed action.
The Court provides directions regarding the steps to be taken to give notice of the proposed action to the Hai||om people.
The Court further provides directions as to the procedure to be followed in adding persons who are accepted as Hai||om.
Namibian Government’s Opposition
The application is defended by the Namibian Government who have raised the following defences to the claim:
The Hai||om people as a whole did not hold land rights;
The Hai||pm people do not qualify as indigenous people or a minority group in terms of international law;
The Hai||om people did not own the Ethosa lands or exercise rights over the full extent of the land claimed;
The Hai||om people were disposed of any rights they held in the subject land by the time of Namibia’s independence;
The Namibian Constitution precludes the claims;
The applicant’s reliance on international law is misplaced.
The applicants’ in its argument submit that they merely seek to bring the proposed action of the Hai||om people in the representative capacity. This court is not called on to finally determine the matters raised by the Governments as these issues can and should be determined at the trial. The Applicant’s at this stage must establish that their claims are not ‘legally hopeless.’