by Anya Namaqua Links
Etosha: Ancestral Land of the Hai||om
Etosha National Park is undoubtedly the most famous game reserve in Namibia and its biggest tourist attraction. Annually, the park generates between N$ 30 and N$ 60 million for the state-owned enterprise, Namibia Wildlife Resorts (NWR), and indirectly contributes approximately N$ 1 billion to the Namibian economy.
In 1907, Friedrich von Lindequist, the governor of German South-West Africa (GSWA, or colonial Namibia), issued Ordinance 88 that officially declared Etosha a game reserve. The reserve initially covered a massive area of 80,000 square kilometres that stretched from the Skeleton Coast in the west, to Namutoni.
In 1958, Etosha was declared a Wildschutzgebiet (wildlife sanctuary) and in 1967 it was elevated to national park status by an act of parliament of the apartheid regime in South Africa. Ordinances 18 of 1958 and 21 of 1970 shrank the park to its current size of 23,170 square kilometres.
In addition to rich varieties of wildlife, diverse groups of people lived around Etosha Pan. To the north of the pan lived Ovambo-speaking people, Otjiherero-speaking people lived south, and within the original boundaries of the game reserve set in 1907, in close proximity to the pan and among the wildlife, lived the Hai||om, an indigenous Khoe-speaking group of hunter-gatherers. Before German colonialism, the Hai||om had recognised the Ondonga chief at Onambango.
In 1954, however, the Hai||om were forcibly removed from Etosha by the South African apartheid regime that had succeeded the German colonial government in Namibia, after the First World War.
Their forced removal devastated the Hai||om. They lost free access to the land where they were born and had lived, a sense of belonging, their hunter-gatherer lifestyle, freedom of movement, their unique community, and became a splintered set of landless labourers on farms owned by Dutch and German colonial descendants and settlers.
In 2004, fourteen (14) years after Namibia gained political independence from apartheid South Africa in 1990, the Namibian government recognised the Hai||om Traditional Authority (HTA). Sadly, instead of allowing the Hai||om back into Etosha National Park, or allowing the severely disenfranchised and impoverished indigenous community a share of the annual income generated by the park, the government opted to resettle displaced Hai||om families on farms, with little or no financial support.
The Case of Jan Tsumib v Government of the Republic of Namibia
In 2018, at the Second Land Conference held in Windhoek, the ancestral land claims of minority ethnic groups such as the Hai||om of Etosha featured prominently on the agenda. The Namibian government subsequently established a Commission of Inquiry to assess and investigate ancestral land claims.
Not for the first time, the government was severely criticised for its willing-buyer-willing-seller land acquisition policy which is generally regarded as grossly inefficient in dealing with the land losses minority ethnic groups had suffered during more than a century of German colonialism and South African occupation combined.
In May 2019, almost a year later, around a hundred Hai||om demonstrated at Outjo in the Kunene Region and demanded the removal of Hai||om chief, Dawid ||Khamuxab. They also called on the line ministry to ''degazette'' and remove the Hai||om traditional council. Leon |Aib, who handed over the petition, accused chief ||Khamuxab of ''not promoting the welfare'' of the Hai||om community, misusing community trust funds, and appointing his relatives to the traditional council.
Not long after, Jan Tsumib, an elder of the Hai||om community, and seven (7) others namely, Mannetjie Gabiseb, Bandu Komob, Dawid Willem, Anna Ais, Elia !Aokoeob Guxab, Nikodemus Hawaseb and Dawid Oaseb sought leave from the courts to institute civil claims against the Namibian government and the Hai||om Traditional Authority (HTA) on behalf of the Hai||om.
Class actions are not permitted under Namibian law, but Tsumib and others argued that the Hai||om is an inherent rights-bearing entity under international law. Their civil claims relate to the colonial dispossession of Hai||om ancestral lands, and post-independence marginalisation and neglect by the Namibian government.
In their case Tsumib and others stated that the Hai||om Traditional Authority (HTA) is ''not a suitable vehicle'' for prosecuting civil claims because traditional authorities are required to cooperate with the Namibian government and to implement government policies, as per the Traditional Authorities Act 25 of 2000.
In its defense, the Namibian government and the Hai||om Traditional Authority (HTA) opposed the leave sought by Tsumib and others to institute civil claims against them by arguing that Tsumib and others sought to usurp the authority and functions of the HTA which, in their view, ''alone was competent'' under the Traditional Authorities Act (TAA) to ''act in litigation for, and in the name of, the Hai||om community''.
The High Court favoured the position of the Namibian government and the Hai||om Traditional Authority (HTA), and dismissed Tsumib and others' application without costs. Tsumib and others appealed the judgment in the Supreme Court.
In 2020, the Commission of Inquiry submitted its report to parliament and recommended that legislation on ancestral land rights be enacted within two (2) years of the commission's conclusion of its inquiry, which has not happened to date.
On 16 March 2022, Supreme Court judges C. J. Shivute, D. C. J. Damaseb and J. A. Smuts upheld the High Court's decision and also dismissed Tsumib and others' application without costs.
A Problematic Position on Ancestral Land
According to international legal experts, Tsumib v the Government of the Republic of Namibia was the first time in the history of the country that an indigenous group challenged the government through a representative class action on its position regarding ancestral land.
In 2020, the head of the Namibian government's Directorate for Wildlife and National Parks, Colgar Sikopo, said in an article published by Reuters that ''the government is not supportive of labelling the park anyone's ancestral land''.
Jan Tsumib said, philosophically: ''If we had land, or were compensated for our ancestral land, we would be free.''
The Legal Assistance Centre (LAC), that had represented Jan Tsumib and others pro bono, said the Hai||om had been granted rights by governor Friedrich von Lindequist to live in the reserve, visit their ancestors' graves and hold rituals after Etosha was declared a game reserve in 1907. The reserve's administration also employed Hai||om as domestic workers and game scouts, and permitted the sale of Hai||om crafts to tourists and visitors.
During the First World War (1914 - 1918), German South-West Africa (or Namibia) was conquered and occupied by military forces of the Union of South Africa after the South-West Africa Campaign of 1914 and 1915 against Germany. At the time, the Union of South Africa (1910 - 1961) was a self-governing dominion of the British Empire like Australia, Canada and New Zealand.
In 1954, the South African government evicted the Hai||om living in Etosha, without compensation. As hunter-gatherers, who had subsisted exclusively within the boundaries of the game reserve, the Hai||om rapidly became destitute thereafter.
To make matters worse, the Namibian government also threatened to evict Hai||om, living inside the boundaries of Etosha National Park, in 2007. The Hai||om, however, contacted the Legal Assistance Centre (LAC), the eviction order was never executed, but it signalled the beginning of the so-called ''Etosha Case''.
Ultimately, the Hai||om are in favour of the park's existence. Jan Tsumib and others, including more than 3,000 Hai||om, want the Namibian government to acknowledge that Etosha National Park is their ancestral land, for the government to include the Hai||om in decision-making regarding the park, and to share the park's income with the Hai||om.
The Legal Assistance Centre (LAC) said the ''Etosha Case'' will be escalated to the African Court on Human and Peoples' Rights (ACHPR), simply called the ''African Court'', in Arusha, Tanzania.
Who may claim Ancestral Land?
The case of Tsumib v the Government of the Republic of Namibia brought to the fore an important question: Who may claim ancestral land rights?
The Namibian government and the Hai||om Traditional Authority (HTA) are adamant that only the Hai||om Traditional Authority may represent the community ''in matters asserting their rights'', and by implication that no one else, like Jan Tsumib and others, may do so. The High Court had agreed with this argument and decided in favour of the government and the HTA.
In their appeal, Jan Tsumib and others argued that the Namibian constitution and international law both recognise the rights the Hai||om wish to assert, and that they are, innately, endowed with the capacity to act independently of a traditional authority.
Although the Supreme Court had dismissed Tsumib and others' appeal, deputy chief justice Damaseb emphasised that common law in Namibia makes provision for legal action by communities and groups of people via ''other ways'' such as voluntary associations. The Supreme Court, therefore, disagreed with the High Court's position that only the Hai||om Traditional Authority (HTA) may represent the Hai||om community.
According to the Legal Assistance Centre (LAC), the main reason the case was dismissed is because representative actions like Tsumib and others who sought to act on behalf of the Hai||om resemble class actions, similar to those in the jurisdictions of South Africa and the United States (USA), which are not recognised in Namibia.
Namibian courts stipulate that a person must show ''direct interest'' in a matter in order to approach the court which disqualified Tsumib and others who sought to represent their own and, indirectly, the interests of the broader Hai||om community. However, Tsumib and others argued that they constitute ''part of a people'', as defined under international law, and should therefore be allowed to represent the Hai||om because their case for ancestral land rights was supported by more than 3,000 community members.
After their appeal was dismissed in March 2022, Tsumib and others, and the Hai||om who support them, now find themselves in a difficult position; the Hai||om Traditional Authority (HTA), under the leadership of chief Dawid ||Khamuxab, continues to be unwilling to approach the courts on their behalf regarding their ancestral land rights claims over Etosha National Park and Mangetti West. Ironically, this very same conduct had been a catalyst for Tsumib and others to formulate a case against the Namibian government and the Hai||om Traditional Authority (HTA).
The highlight of this landmark case is that the Supreme Court agreed with Tsumib and others that not only traditional authorities may represent communities, or groups of people, seeking to assert customary rights, and despite their legal losses, Jan Tsumib, Mannetjie Gabiseb, Bandu Komob, Dawid Willem, Anna Ais, Elia !Aokoeob Guxab, Nikodemus Hawaseb and Dawid Oaseb remain hopeful that they will, eventually, succeed.
A Critical Evaluation of the Etosha Case
The ''Etosha Case'' clearly demonstrates the bitter legacy of colonial injustices and their lasting effects on vulnerable communities in post-independence Namibia. Generational poverty, landlessness, lack of access to land, and multiple levels of deprivation are evident among minority ethnic groups who were alienated from their ancestral lands during German and South African colonialism (1884 - 1990).
It is a fact that Namibia's colonial past had created internally displaced indigenous communities. Communities, i.e. ''groups of people''. The Herero-Nama genocide of 1904 to 1908, and the Saan genocide that continued beyond 1936, when the last hunting permit for them was issued, affected not only the ethnic groups mentioned in the exile and extermination orders issued by the German military, but many other groups, as well. The Namibian courts and law not allowing for class nor representative actions by, and on behalf of, affected communities is a denial of the historical facts and political realities of land in Namibia, and demonstrates a lack of acknowledgement that colonial land policies adversely affected indigenous collectives - not individuals.
At the heart of the matter is the disenfranchisement, and continued marginalisation, of the Hai||om. Before Etosha's declaration as a game reserve in 1907, and their subsequent expulsion in 1954, the Hai||om had successfully lived off the land. Like the fascinating wildlife, Etosha Pan had been the habitat and home of the Hai||om. The community's requests for ancestral land acknowledgement, compensation and decision-making powers are not unreasonable which leads to the conclusion that the Namibian government's refusal to empower, engage and involve the Hai||om, on the matters of Etosha and Mangetti West, is deliberate.
In addition, the government feigns ignorance about the troubled relationship between the Hai||om Traditional Authority (HTA) and the Hai||om community, who has, on multiple occasions, and publicly, questioned the intentions and legitimacy of the HTA. The government's concomitant insistence that only the HTA, the recognised traditional authority, may legally assert the rights of the Hai||om, is counter-productive and hostile. What other recourse is available to indigenous communities, under such circumstances, except to bypass the HTA and approach the courts, directly, in a representative action, as Jan Tsumib and others had done?
The case also exposed the Namibian government's reluctance to acknowledge ancestral land and address indigenous land claims despite calls to do so and evidence that doing so will benefit both the government and affected communities. The Hai||om continue to be one of the most marginalised ethnic groups in Namibia, more than thirty (30) years after independence, with no remedy in sight.
The Namibian government should have acknowledged and addressed ancestral land claims and internal displacement as consequences of colonialism at the first Land Conference held shortly after independence. Ancestral land claims, acknowledgement, restitution and / or compensation for land losses should have been the government's focus ab initio. The appropriate authority and vehicle to hear and decide on land claims would have been an independent Land Claims Court.
Instead, the government's failure to address the ancestral land claims of historically dispossessed and internally displaced groups, together with their increasing marginalisation, deepens inequality and breeds resentment.
The ''Etosha Case'' merits careful consideration and discussion regarding the avenues of justice available to internally displaced minority communities and ethnic groups living in Namibia and the diaspora today, their ancestral land claims and rights, the appropriate legal instruments to enable compensation and / or restitution for colonial injustices, and preferred channels to promote meaningful engagement and participation by marginalised communities and groups.
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References
- Etosha National Park, Wikipedia: https://en.wikipedia.org/wiki/Etosha_National_Park
- Indigenous Namibians fight for Ancestral Land in National Park, Kim Harrisberg, Reuters (13 April, 2020): https://www.reuters.com/article/us-namibia-land-indigenous-idUSKCN21V0PI
- The Etosha Case: Who can bring Ancestral Land Rights Claims? ProBono, Legal Assistance Centre: http://www.lac.org.na/news/probono/ProBono_79-ETOSHA_CASE.pdf
- Tsumib and Others v Government of the Republic of Namibia, Case No, SA 53/2019: https://namiblii.org/na/judgment/supreme-court/2022/6
- Tsumib v the Government of the Republic of Namibia: https://ejustice.moj.na/High%20Court/Judgments/Civil/Tsumib%20v%20Government%20of%20the%20Republic%20of%20Namibia%20(A%20206-2015)%5B2019%5D%20NAHCMD%20312%20(28%20August%202019).docx
- The San of Namibia: !Khwa ttu: https://www.khwattu.org/exhibitions/the-san-of-namibia/
- Hai||om San demand Removal of Chief, Clemans Myanicwe, The Namibian (19 May, 2019): https://www.namibian.com.na/211511/archive-read/HaiOm-San-demand-removal-of-chief
- San Group appeal in Etosha Rights Case Fails, Werner Menges, The Namibian (17 March, 2022): https://www.namibian.com.na/110887/read/San-group-appeal-in-Etosha-rights-case-fails
- Judges to Weigh Up Hai||om Quest for Land Rights, Werner Menges, The Namibian (30 November, 2018): https://www.namibian.com.na/73613/read/Judges-to-weigh-up-Haiom-quest-for-land-rights
- Tourism-related Land Rights Conflicts in Namibia - The Etosha Case: Tsumib v the Government of the Republic of Namibia, Lisa Strube, African Legal Studies (6 November, 2020): https://africanlegalstudies.blog/2020/11/06/tourism-related-land-rights-conflicts-in-namibia-the-etosha-case-tsumib-v-government-of-the-republic-of-namibia/
- African Court on Human and Peoples' Rights, African Court: https://www.african-court.org/wpafc/contact/
- Etosha National Park by Discover African Safaris
- Paul Komob, Hai||om, now lives in the Nyae Nyae Conservancy among the Ju|'hoan by !Khwa ttu
- Jan Tsumib, Hai||om, was a poorly paid farm labourer until his retirement
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