Base de Datos Género y Derecho a la Tierra


Tenencia de la tierra- formas predominantes

According to Article 100 of the Constitution, land belongs to the state if not otherwise lawfully owned (13).

There are the following types of land tenure:

  • State land:
    This is land used for nature conservation, game parks, agricultural research farms and military bases. It also includes land owned by local authorities in urban areas for development and sale to private developers (14).
  • Private land:
    This includes urban land which is privately owned within proclaimed boundaries and rural commercial farmland or freehold agricultural land, i.e. private ownership of commercial farmlands (14).
  • Communal land:
    This category includes all land used by indigenous communities. It is owned by the state but held in trust for them (14).

All rural land in the communal areas is held and managed according to customary tenure systems.

Generally, land rights are allocated by traditional leaders.

With regard to residential and arable land, an allocation confers use rights, usually for life. Upon the death of the holder of a customary land grant, the rights either revert back to the traditional leader for reallocation or are passed on according to terms of customary law.

Until recently, all communal land – whether rural or urban – could not be held under freehold title. As a result, communal land could not be sold or mortgaged.

Until the early 1980s, black Namibians could not obtain title to any land, whether urban or rural, communal or commercial. Ownership of land under freehold was reserved for whites until that time.

43 percent of all land in the country is owned under state trust and/or customary tenure, 39 percent is privately-owned rural land and 18 percent is urban land or state-owned land with public purpose (13).

There are about 4 500 commercial farmers, about half of whom are white (17).
According to Schedule 5[1] of the Constitution and the Communal Land Reform Act of 2002, Act 5, land within communal areas is vested in the state and can be registered under customary land rights or rights of leasehold which may be allocated to individuals.

The land cannot be bought or sold nor used as collateral for loans (14).

A person using customary communal land for a commercial purpose and not for subsistence farming needs to apply to the Communal Land Boards (CLBs) for a leasehold. Lessees, unlike people with a customary land right, have to pay an annual fee to the CLB (14).

Customary land rights in communal areas include a user right to: i. a farming unit; ii. a residential unit; and iii. any other form of customary tenure recognized by the state. These rights can be transferred, inherited or held jointly by spouses (14).

Instituciones nacionales y locales que ejecutan las disposiciones jurídicas sobre la tierra

The Local Authorities Act of 1992 provides that the country be divided into 13 administrative regions and many other local authorities (14).

  • Regional Councils have general responsibility to allocate resources (18).
  • In urban areas and formal rural areas, local authorities own most of the land. Local authorities are responsible for the development of land for housing and for the sale of residential plots, which are transferable with freehold title (14).

Communal Land Boards:

  • Twelve regional Communal Land Boards (CLBs) were established under the Communal Land Reform Act of 2002. Different ministries and every traditional authority recognized under the Traditional Authorities Act are represented on these boards. At least four women must be on each board, although the total number of board members varies. Communal land is allocated by the CLBs through registered certificates.

The boards are responsible for the following activities:

  • Control the allocation and cancellation of customary land rights by chiefs or traditional authorities;
  • Decide on applications for rights of leasehold;
  • Create and maintain registers for the allocation, transfer and cancellation of customary land rights and rights of leasehold;
  • Advise the minister on regulations needed to meet the objectives of the Act; 
  • Give effect to the provisions of this Act (14).

According to Section 24 of the Act, while the traditional authority may allocate customary land rights, the relevant board must ratify the allocation before it is legally valid. (14).

Instituciones de administración de la tierra y cuotas para la mujer

The Ministry of Lands, Resettlement and Rehabilitation (MLRR):

  • Established in 1990 as the main actor in land planning and administration. In an effort to improve coordination of activities related to land, the MLRR established and coordinates the Inter-Ministerial Standing Committee for Land-Use Planning (IMSCLUP). The MLRR consists of two main departments: Land Management and Administration; and Land Reform, Resettlement and Rehabilitation. Each of these departments is divided into several directorates. 
  • The Directorate of Survey and Mapping, headed by the Surveyor-General, provides services in support of land planning, surveying, mapping and administration. The Directorate of Lands advises on land planning and administration. This includes providing advice to the Directorate of Resettlement and Rehabilitation, which deals with planning and implementing resettlement schemes, mostly directed towards agricultural land use. The main function of the Rehabilitation Division, under the Directorate of Rehabilitation, is to facilitate increased access to services by people with disabilities.
  • The MLRR has also been responsible for developing a parallel, interchangeable property registration system for the country. The purpose of this is to make an initial secure tenure right simpler, more affordable and upgradeable in response to what a resident, a local authority and the government may need and can afford at any given time (14).

Land Reform Advisory Commission:

  • The Agricultural (Commercial) Land Reform Act, 1995 provided for the creation of this commission consisting of 16 members from the public and private sectors. This commission operates independently from the MLRR and is composed of five people, of whom at least two shall be women not employed in the public services (14).

Disposiciones de financiamiento que garantizan a la mujer transacciones de tierras

  • Savings programmes have been carried out by the members of the Namibia Housing Action Group (NHAG). The members save in their own groups and borrow from their savings for emergencies and to improve their income. These savings are used to acquire resources like land and loan funds (14).
  • The government provides, in collaboration with other stakeholders, technical and financial assistance to individuals and/or groups who provide training, job placement and career guidance. It also assists and facilitates women’s access to credit facilities, profitable markets and services which may enable them to become entrepreneurs. There is no discrimination against women by commercial financial institutions (18).
  • Some non-governmental organizations (NGOs) have emerged that specifically target women as their beneficiaries, such as the Association of Women in Business (NNAWIB). NNAWIB strives to empower women through the promotion of small businesses. It has a paid–up membership of about 2 500 women. It offers training in basic business management and offers loans to women in small businesses (18).

Otros factores que influyen en los derechos a la tierra diferenciados por género

  • Because of a general lack of knowledge about human and legal rights, women are likely to not know about the Married Persons Equality Act – which abolished the concept of marital power and took away the husband’s right to control the joint estate – and village leaders do not enforce it. At the same time, traditional rules, which did not grant women the right to own land but did give them access to it, have been eroded (14).
  • Male deaths from HIV/AIDS affect female-headed households. For example, in Ohangwen, a northern region with one of the country’s highest HIV/AIDS prevalence rates, the inheritance system is matrilineal, and when the husband dies it is common for other relatives to remove livestock and other large assets. Also, in these households, the crop production declines owing to a lack of resources to pay for hired labour (5).
  • Because there are no specific legal provisions on women’s land rights or any criteria for land rights entitlement, traditional leaders have a hard time creating a balance between customary law and the requirements of the Constitution and common law (11).
  • The legacy of different types of land tenure represents a major challenge to the Ministry of Lands, Resettlement and Rehabilitation in terms of land-use planning. Government officials often have to deal with different systems within the jurisdiction of each authority on national, regional or local levels (14).

Fuentes: los números entre paréntesis (*) se refieren a las fuentes que están en la sección de Bibliografía