‘Constitution stands in way of land reform’
Which comes first, the constitution or the people?
By Nkrumah Mushelenga
The key term is ‘land reform’. The key question is, ‘Why land reform after independence?’ Answer is: ‘Because of the impact of the 1884 Berlin Conference’.
What was the key objective of the Berlin Conference? What was the key resolution of the Berlin Conference? To illegally invade, occupy, and demarcate the African Continent into small islands called countries, and indeed to authenticate illegal occupation by European settlers.
By the way, what is a constitution? The Cambridge advanced learner’s dictionary defines constitution as a noun to mean “a written document which forms the set of political principles by which a state or organisation is governed, especially in relation to the rights of the people it governs”.
Dear readers to justify my point, allow me to quote the preamble of the Constitution of Namibia. “Whereas we the people of Namibia;
have finally emerged victorious in our struggle against colonialism, racism and apartheid;
are determined to adopt a constitution which expresses for ourselves and our children our resolve to cherish and to promote the gains of our long struggle;
desire to promote amongst all of us the dignity of the individual and the unity and integrity of the Namibian nation among and in association with the nations of the world;
will strive to achieve national reconciliation and to foster peace, unity and a common loyalty to a single state;
committed to these principles, have resolved to constitute the Republic of Namibia as a sovereign, secular, democratic and unitary State securing to all our citizens justice, liberty, equality and fraternity,
“Now therefore, we the people of Namibia accept and adopt this constitution as the fundamental law of our Sovereign and Independent Republic.” Based on the above the people of this country are the custodians of the constitution of Namibia.
What is the value of a constitution?
And why do human beings need to be governed by a constitution? According to Dr. Joseph Diescho, a constitution is a legal act which forms the basis of governance and administration of the new nation state.
Meanwhile, the Cambridge advanced leaner’s dictionary defined people to mean men, women and children.
What comes first? A constitution or the people? A constitution, as the supreme law of a nation, thus, can only facilitate change, whose pace must be determined by the people and their institutions; Hage G. Geingob 1994. It is thus logical in my view to agree that Article 16 does not stand in the way of land reform but improvises a solution.
According to an article in Namibian Sun dated 23rd December 2020, Article 16 of the Namibian Constitution prohibits government from abolishing the much-criticised willing-buyer, willing-seller policy, dealing a heavy blow to the aspirations of the 2018 second national land conference.
Article 16 of the constitution according to Namibian Sun, falls under the Bill of Rights provision in the constitution, and cannot be amended- not even through a referendum.
The author further said, Government’s plan to prevent Namibians from owning multiple farms, and to abolish the willing-seller and willing-buyer concept to enable government to fast-track the land reform programme as per the resolution of the 2018 Conference, which will not succeed as Article 16 would not “allow this to happen”.
It is true that Article 16 falls under Chapter 3. But it is not true that Article 16 can prevent government from abolishing the willing-buyer willing-seller policy. It is also true that Article 16 is about property, but not against the acquisition of property.
It is a fact that, Chapter 3 is about ‘Fundamental Human Rights and Freedom’, while Article 16 is about property.
If all Namibians believe that the constitution of Namibia is a ‘living document’ why don’t we go back;
to the people and diagnose the gaps between chapter 3 Articles 5, 6, and 16 to be read with chapter 11 Article 95 (e), (h), (i) and (j). If the process leading to the writing of our constitution has been influenced by our societal values, why don’t we go back;
to the people through a referendum? If Namibians believe that criticism is a manifestation of democracy at work, why don’t we;
use a referendum as a venue to express our collective verdict on Chapter 3 after critical analysis of Article 5,6, 16, read with Chapter 11 Articles 95, (e), (h), (i), and (j) of the constitution of Namibia?
In my view the current diverge interpretations of Articles 5 and 16, deserve a modernised unified critical thinking and a destined winning attitude to achieve the country’s constitutional land battle.
Since democracy means among others diverse opinions, kindly allow me to validate my point by defining in a layman’s language the meaning of;
(6) and the rational for producing and adopting a law:
1. Land: According to Cambridge advanced learning’s dictionary means
the surface of the earth that is not covered by water
an area of ground, especially when used for a particularly purpose such as farming or building.
2. The Landowner:
2.1 The legitimate question to every Namibian irrespective of gender or age group is, how many of our biological parents, sisters, brother, neighbours, and students are property owners, landlords, tenants or proprietors in this huge country? Very few indeed. Why? Because land is livelihood. Land is wealth.
3.1 The burning question is what comes first, in terms of writing and adoption of the constitution, is it the people or is it the constitution? In order to try to give a thought to this question, please allow me to extract a few words from Comrade Hage G. Geingob (1994).
“The writing of our constitution, as the ‘mother of all laws’ has greatly been influenced by our (people) societal values. This perspective has nowhere been more viable than in the fact that the members of the Constituent Assembly were elected by the people, and in the contributions of the various Constituent Assembly ‘s participants were invariably informed by the experience of our (people) struggle for the liberation of our country.
“We who are the founders of this constitution, recognise that the constitution neither determines, nor can it determine the pace of change we seek in our country. A constitution, as the supreme law of a nation, can only facilitate change, whose pace must be determined by the people and their institutions. The validity of this proposition is evident in the response of the people to the policy of reconciliation, which is not a mandatory constitutional provision; progress made in the application of affirmative action, which is a constitutional requirement; and the consistently changing thinking in the formulation of our laws and their interpretation by our courts”.
I will live interpretation of this noble statement to the learned colleagues in the legal sector.
* Nkrumah Mushelenga is a Rt. Commissioner for Refugees, former Namibia National Liberation Veterans Association National Coordinator, and the founder and trustee of Peter Nanyemba ex-PLAN Combatant Veterans Trust (p.n.p.c.v. t.)