Base de données Genre et le Droit à la Terre


Droits inscrits dans la Constitution

The Constitution adopted in February 1990, and last amended in 2010: 

  • Article 10[1][2] on Equality and Freedom from Discrimination states that “all persons shall be equal before the law” and “no persons may be discriminated against on the grounds of sex, […]”. 
  • According to Article 14[1] “men and women […] shall be entitled to equal rights as to marriage, during marriage and at its dissolution”.
  • Article 16 states that “all persons shall have the right to acquire, own and dispose of all forms of property individually or in association with others […]” (12).
  • However, the Constitution does not contain explicit provisions recognizing the right to adequate housing and access to land (14).
  • Article 16[2] authorizes the state to expropriate property in the public interest, subject to the payment of just compensation, in accordance with statutory law, such as the Agricultural (Commercial) Land Reform Act of 1995 amended in 2003 by the Agricultural (Commercial) Land Reform Amendment Act, 2003 (No. 14 of 2003). (12).
  • Article 23[1][2] on Apartheid and Affirmative Action demands special legislation, policies and practices to promote the fully equal and effective participation of women in the political, social, economic and cultural life of the country.
  • Article 95[a] on the Promotion of the Welfare of the People demands the “enactment of legislation to ensure equality of opportunity for women, to enable them to fully participate in all spheres of Namibian society” (12).
  • Article 66 states that common law and customary law in force at the date of independence remain valid “to the extent to which they do not conflict with the Constitution.” The fundamental rights and freedoms in the Constitution clearly take precedence over all subordinate laws (15).
  • Moreover, according to Article 25, Parliament has no power to make “any law” which conflicts with the fundamental rights and freedoms contained in Chapter 3 of the Constitution, which includes the provisions on equality and marriage (15).

Droits des femmes sur le patrimoine et l’usage de la terre dans le Code civil, le Code du travail et le Code de la famille

The Constitution, adopted in February 1990 and last amended in 2010:

  • According to Article 25, Parliament has no power to make “any law” which conflicts with the fundamental rights and freedoms contained in Chapter 3 of the Constitution, which includes the provisions on equality and marriage (15).
  • Article 14[1] states that “men and women of full age, without any limitation due to race, colour, ethnic origin, nationality, religion, creed or social or economic status, shall have the right to marry and to found a family. They shall be entitled to equal rights as to marriage, during marriage and at its dissolution.” 
  • According to Article 14[2], “Marriage shall be entered into only with the free and full consent of the intending spouses.”
  • Article 14[3] recognized the family as “the natural and fundamental group unit of society” that “is entitled to protection by society and the State” (15).
  • The term “marriage”, as used in the Constitution, includes only civil marriages and not customary marriages, which still do not have full legal recognition as marriages in terms of statutory law, although full recognition has been proposed by the Law Reform and Development Commission (15).

The Recognition of Customary Marriages draft bill of 2004:

  • The Law Reform and Development Commission proposed the draft bill in an official government report published in 2004. The bill is still to be scheduled for discussion in Parliament. During 2006, the Gender Research & Advocacy Project (GR&AP), part of the advocacy group Legal Assistance Centre, prepared a summary of the proposed bill entitled Recognition of Customary Marriages: A Summary of the Law Reform and Development Commission Proposals, to encourage broad public input on the bill (16).

The Married Persons Equality Act of 1996 (16):

  • Abolished the unconstitutional marital powers of the husband and placed husbands and wives on equal footing. Men and women who are married in civil marriages in community of property must now consult each other on all important financial transactions, as equal partners. 
  • Before the Act was passed, the common law concept of “marital power” gave the husband the right to control the joint estate. Even though half of everything belonged to the wife, the husband had the authority to administer the estate on behalf of the couple.
  • Section 5 gives equal power to spouses married in community of property: to dispose of the assets of the joint estate; to contract debts for which the joint estate is liable; to administer the joint estate.
  • Section 6 states that “a spouse married in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse”. 
  • Provides women married in community of property equal access to bank loans and ownership of property without the consent of her partner.  
  • Makes the age of consent for entry into civil marriage 18 years for both sexes, and provides that men and women are equal before the law.
  • Provides that immovable property, such as a communal house, must be registered in both spouses’ names. The sale of such property has to be approved by both parties. Likewise, the act provides for equal guardianship over minor children of the marriage.
  • When a marriage in community of property ends, any liabilities are settled out of the joint estate. If the marriage ended in divorce, the remainder of the estate is normally divided equally between the spouses. 
  • If the marriage ended due to the death of one spouse, the surviving spouse keeps his or her own half-share and the deceased spouse’s half-share is distributed in terms of the law of succession or intestacy (14).
  • Through the provisions of the Act, women farmers married in community of property are entitled to joint, as well as independent, land ownership under the Agricultural (Commercial) Act (14).
  • The default matrimonial property regime applicable under common law to most civil marriages is in community of property.
  • Couples who want to marry out of community of property must enter into a formal ante-nuptial contract (14).
  • In marriages out of community of property, the assets and debts of the husband and wife remain separate. Ownership of property remains with the person who acquired it. If the marriage ends, each spouse retains his or her own separate belongings.
  • The Act also makes it clear that both husbands and wives in marriages out of community of property bear responsibility for making contributions to household necessities in proportion to their resources. Both spouses are jointly and severally liable to third parties for all debts incurred by either of them for necessities for the joint household. A spouse who has contributed more than his or her fair share for such necessities has a right of recourse against the other spouse (14).
  • Couples who have entered into ante-nuptial agreements sometimes use a variation of out of community of property known as the “accrual system”.
  • In this system, the property owned by the husband and the wife before the marriage remains their separate property, and property acquired during the marriage is administered as separate property. When the marriage comes to an end, husband and wife share equally all of the property and assets that were added to the household during the marriage. There is no sharing of losses, only of profits (14).
  • Rights over marital property in customary marriages were not addressed by the Married Persons Equality Act. The Act addressed only certain limited aspects of customary marriages pertaining to guardianship over children and domicile.
  • According to the Act, husbands and wives in both civil and customary marriages have equal powers of guardianship for children of the marriage.
  • The Act also makes a wife’s domicile independent of that of her husband in both civil and customary marriages, and provides that the domicile of children of the marriage will be the place with which they are most closely connected (14).

The Affirmative Action (Employment) Act of 1998:

  • Section 23: Requires that all employers prepare affirmative action plans, targeting blacks, women and persons with disabilities for affirmative action.
  • It was promulgated in 1998 after a consultation document was circulated for comments to trade unions, employers and non-governmental organizations (NGOs).
  • The Ministry of Labour established an independent agency, known as the Employment Equity Commission, to administer the affirmative action legislation.
  • Section 4: The Employment Equity Commission monitors compliance with the law and investigates complaints of discrimination in employment practices.
  • Section 47(2): Any person who contravenes the provisions of the Act is punishable by law (18).

The Labour Act of 1992:

  • Section 107: Outlawed discrimination on the basis of sex in most aspects of employment (18).

The Social Security Act of 1994:

  • Section 4: Requires female representation from government, trade unions and employers’ organizations on the Social Security Commission (18).
  • Section 28: Establishes a Maternity Leave, Sick Leave and Death Benefit Fund 

The Cooperatives Act of 1996:

  • Section 29[2][b] provides that any cooperative which has a substantial number of women members must ensure that there is at least one woman on its board, as a means to increase the representation of women in management positions. This provision applies to any cooperative that has more than five women among its members or that has women as more than one-third of its members (18).
  • There is a new legal framework for violence against women and children which includes the Combating of Rape Act, the Combating of Domestic Violence Act and amendments to the Criminal Procedure Act, which are designed to protect vulnerable witnesses (16).

Mécanismes juridiques d’héritage/de succession

The rules of succession which apply upon someone’s death depend on a complex interplay of: i. ethnicity, for an indigenous person; ii. the part of the country where he/she resides; iii. whether that person was a party to a civil or customary marriage; and iv. which marital property regime applied to the civil marriage.

Any debts owed by the deceased must be paid out of the estate first, before any of the heirs get anything. The estate includes all of the property which belonged to the deceased, including cash, land and immovable property (15).

The Administration of Estates Act of 1965, amended by the Estates and Succession Amendment Act, 2005

  • Regulates the estate succession. It stipulates that a deceased must leave a valid will to determine how succession to her or his property is to take place. Husbands and wives have equal rights to make wills and have no duty to leave any part of their estate to the surviving spouse or to the children of the marriage (14).

The Married Persons Equality Act of 1996:

  • The kind of property arrangement which applied to a civil marriage affects what is in the estate of the deceased. 
  • If the marriage was in community of property, then half of all the household property belongs to the wife and half to the husband. The wife would take her half and the other half would be the husband’s estate. This division of property must take place before anyone can inherit anything.
  • If the marriage was out of community of property, then the husband and the wife kept their property separate all along. The wife would take her property, and the husband’s property would become his estate.
  • If the marriage was under the “accrual system”, then only the additions to the household’s property during the marriage are shared. The wife would take whatever she owned before the marriage and half of everything that was added to the household during the marriage. The rest of the property would be the husband’s estate.
  • If the deceased party left a will, then the estate which belongs to the deceased, after any division of joint property has been made, would be distributed according to the provisions of the will (14).

The Native Administration Proclamation of 1928:

  • Only sections 17(6) on marriage and sections 18(3) and 18(9) on succession apply in Owambo, Kavango and Caprivi (with effect from 1950). None of section 17 on marriage applies elsewhere.
  • Section 18(1), 18(2), 18(9) and 18(10) were repealed in 2005 by the Estates and Succession Amendment Act.
  • Imposes race and gender-based restrictions on the power to make wills. A black person in Kavango, Eastern Caprivi or Owambo has full power to bequeath his or her estate by will, but a black man in any other part of the country does not have full testamentary freedom. He does not have the legal power to leave by will: a) movable property allotted to or accruing under customary law to any woman with whom he lived in a customary union; or b) any movable property accruing under customary law to a particular house. 
  • Property which falls into these two categories must be distributed according to customary law. 
  • Section 18(3) stated that “any dispute or question which may arise out of the administration and distribution of any estate in accordance with native law shall be determined by the native commissioner”, who has been replaced by magistrates.
  • The law applicable to such disputes is the customary law of the area in which the marriage was concluded (14).
  • Makes some special rules for black people which are applicable only to the area north of the Police Zone, as from August 1950.
  • If a black person outside of the old Police Zone dies leaving no valid will and was at any stage married in a civil marriage in the out of community of property position, which applies to civil marriages between black people in the north, the estate would be distributed “according to native law and custom”. 
  • If the deceased, at the time of his death, was a partner in a civil marriage in community of property or under ante-nuptial contract, or was a widower, widow or divorcee of a civil marriage in community of property or under ante-nuptial contract and was not survived by a partner to a customary union entered into subsequent to the dissolution of such marriage, then the property shall be transferred as if he or she had been a “European”, in other words, as if he or she were white.
  • Inside the area covered by the old Police Zone, the estates of all black persons, regardless of the circumstances of any marriage they may have entered, are distributed according to “native law and custom” (14).

The Intestate Succession Ordinance of 1946:

  • If there is no will − intestate succession − then inheritance takes place in terms of laws which determine who will inherit the property of the person who died, but such rules are dependent upon race. 
  • For all people other than black people, property will usually go to the deceased’s relatives by blood or by marriage, in an order of precedence determined by the Ordinance. In most cases, the estate is shared between the surviving spouse and the children of the deceased in proportions set forth by the statute. 
  • In other cases, the basic rules are as follows: a) If there are no children, the surviving spouse will share the estate with other close relatives; if there are none, the spouse inherits everything; b) If there are children but no surviving spouse, the children inherit everything; c) If a child has already died, that child’s share will be given to that child’s children, who are the grandchildren of the deceased; d) If there is no spouse and no children, the estate will go to the deceased’s parents, brothers and sisters, or closest blood relatives; e) If there are no relatives at all, the property will go to the state.
  • Any part of the deceased’s estate which is inherited by minor children is held in trust by the state and given out for the children’s needs as necessary (14).

The Communal Land Reform of 2002:

  • Provides that both widows and widowers will have the right to remain on their land after the death of their spouses. This right to occupation will continue to be held by surviving spouses of both sexes even if they subsequently remarry (15).
  • However, the right to retain the land through a chain of remarriage is not indefinite. If a surviving spouse who stays on the land remarries and then dies, the new surviving spouse still has a right to remain on the land. But if this second surviving spouse dies, then the land reverts to the appropriate traditional authority to determine who has the right to stay on the land. 
  • The decision must be made in consultation with the members of the concerned family or families identified by the traditional authority with reference to the relevant customary law.
  • The same rules apply to widowers.
  • If there is no surviving spouse when the holder of the right to occupy the communal land dies, or if the spouse does not consent to remain on the land, then the land is to be reallocated to a child of the deceased identified by the Chief or Traditional Authority as being the rightful heir (15).

The Children’s Status Act, 2006:

  • The Act defines a child as any person who is under the legal age of majority. The Act is gender-neutral and the provisions apply irrespective of the child’s sex.  
  • Section 16: Despite anything to the contrary contained in any statute, common law or customary law, a person born outside marriage must for purposes of inheritance be treated in the same manner as a person born inside marriage.

Législation foncière

Namibia has two main land tenure systems: freehold in urban areas and commercial farms and customary tenure on communal land (22).  

The National Land Policy of 1998: 

  • Provides for a unitary land system for the country, in which all citizens have equal rights, opportunities and security across a range of tenure and management systems. 
  • Has a specific gender provision in accordance with the Constitution. Women are granted the same status as men regarding all forms of land rights, either as individuals or as members of family land ownership trusts. According to the policy, everyone, irrespective of gender, is entitled to maintain the land rights enjoyed during their spouses’ lifetimes. 
  • Provides for multiple forms of land rights, including customary grants, leaseholds, freeholds, licenses, certificates or permits and state ownership. 
  • Recommends that laws be enacted to enable the compulsory acquisition of land by central or local government authorities for public purposes in accordance with the Constitution. The compulsory acquisition of commercial agricultural land for public purposes is provided for under the Agricultural (Commercial) Land Reform Act. No similar laws exist for urban land reform (14).

The National Land Use Planning Policy of 2002:

  • It is a summary of all the policies and legislation applicable to land in the country (14).

The Draft National Land Tenure Policy, 2002:

  • It states that customary rights for arable, residential and grazing land will be held by the head of the family in trust for the rest of the family. Heads of households may not dispose of such rights without the consent of their spouses and dependent children. 
  • The Draft Policy refers to the Constitution and the Married Persons Equality Act in respect of the protection of the rights of women, particularly with regard to inheritance practices. 
  • In addition, Traditional Authorities and regional Communal Land Boards are called upon to ensure that gender discrimination does not occur in inheritance cases involving communal land.  It also provides for the possibility of appealing to a Land Board against a decision of a Traditional Authority.

The Communal Land Reform Act of 2002:

  • Provides for the recording and registration of all land rights in communal areas, either as customary land rights or as rights of leasehold. Communal land includes settlement areas but excludes municipalities, towns and villages. Communal land cannot be bought or sold, but it can be transferred. The prohibition of land rights being tradable is a substantial deterrent to investment (22)
  • Section 17(2) stipulates that “No right conferring freehold ownership is capable of being granted by any person in respect of any portion of communal land”
  • The implementing Rules require that any land used for commercial activity be registered as leasehold. Holders of customary land rights, who make up the great majority of residents, are deterred from using their land for income-generating enterprises unless they go through lengthy processes of converting their land rights to leaseholds (22).
  • Establishes the Communal Land Boards (CLBs) and regulates the powers of chiefs, traditional authorities and boards in relation to communal land. Men and women are equally eligible for individual rights of tenure on communal land, and the treatment of widows and widowers is the same. 
  • Customary land rights in communal land may be allocated to individuals for various uses. If the land is used for a commercial purpose and not subsistence farming, the applicant must apply to the CLB for leasehold. Lessees, unlike persons with a customary land right, have to pay an annual fee to the CLB.
  • Joint registration in both spouses’ names is possible with the registration of land allotments on resettlement projects (14).

Communal Land Reform Amendment Act, 2005 (Act No. 11 of 2005):

  • Amended the Communal Land Reform Act of 2002
  • Section 19: rights that may be allocated under the Act are divided into: a) customary land rights; b) Rights of leasehold
  • The intention behind the Act is to grant rights of leasehold for commercial purposes not for subsistence farming (23)
  • Section 21: the customary land rights that may be granted include: a right to a farming unit, a right to a residential unit, a right to any other form of customary tenure that may be recognised (23)

The Agricultural (Commercial) Land Reform Act of 1995 amended by the Agricultural (Commercial) Land Reform Amendment Act, 2003 (No. 14 of 2003):

  • Provides for the acquisition of agricultural land by the government for purposes of land reform and redistribution. The land reform and redistribution is focused on agricultural land and targets citizens who have been disadvantaged by past discriminatory laws or practices.

The Traditional Authorities Act of 2000:

  • Recognizes traditional authorities as legal entities and provides for various aspects of their functioning. 
  • A Council of Traditional Leaders is established to assist the President with the administration and control of communal land. 
  • Traditional authorities should promote affirmative action, particularly with regard to positions of leadership, as required by the Constitution. 
  • With respect to land-use planning, traditional authorities: a) assist and cooperate with the government, regional councils and local councils in executing their policies and keeping the members of the traditional community informed of developmental projects in their area; b) ensure that the members of their traditional community use the natural resources at their disposal on a sustainable basis and in a manner that conserves the environment and maintains the ecosystems.
  • Traditional authorities are required to be fully involved in land-use planning and development (14).

The Community Courts Act of 2003:

  • Aims to bring the traditional court system into the mainstream of the administration of justice. It provides for the establishment of community courts with the power to have their decisions enforced.
  • Community courts include traditional authority representation and function as lower courts. They apply customary law to the specific rural communal area in which they are established.
  • While Communal Land Boards were established to deal with land disputes, it is expected that community courts will deal with movable property. Civil laws still apply to proclaimed communal urban or town areas (14).
  • Although in force, the Act has not yet been implemented.

The Draft Flexible Land Tenure Bill of 2004:

  • Provides innovative, low-cost tenure forms for the urban poor, but has yet to find its way to Parliament.
  • Recommends two new types of tenure: a) the starter title, a form of tenure registered for a block of land. It provides the holder with the right to occupy a site within a block. The occupier may only transfer this right subject to a group constitution requiring group consent to transfer. As the individual household’s site is not yet defined, the right cannot be mortgaged; and b) the landhold title, a form of tenure with all the most important aspects of freehold ownership except the complexities of full ownership. The title provides the owner with the right to occupy a defined site and to transfer such right. Mortgaging is therefore possible. 
  • Starter and landhold titles are interchangeable. A starter title can be upgraded to a landhold title or to a freehold title. A block is obtained by a saving scheme group, which forms an association after it has drawn up a constitution. The group can obtain freehold title provided it is situated in an approved urban area. Once tenure security is obtained, it is envisaged that the occupants will build their own houses, with the local authority providing services. 
  • The system is designed for all urban areas, including peri-urban land within municipal boundaries, where as many as 100 000 families with well-established traditional rights have insecure rights to their land. The formal land registration systems cover only part of the country, excluding 60 percent of those residing in the former homelands, now communal areas. 
  • Although the state owns such land and should be able to deal with it as it sees fit, the Constitution requires that it is necessary to formally acquire the land rights that certain citizens hold in relation to it. These rights are allocated by the local traditional authority and include communal tenure rights for residential and agricultural purposes, such as planting crops and grazing stock.
  • - The bill aims to formalize existing rights while allowing traditional rights to continue; it provides a guideline for local authorities in communal areas on how to deal with land disputes, especially in grey area locations where traditional authorities may want to deal with such issues instead of local authorities (14).

Mesures politiques/mécanismes institutionnels favorisant ou freinant l’application des droits des femmes sur la terre

The National Agricultural Policy of 1995:

  • Adopted by the Ministry of Agriculture, Water and Rural Development in October 1995. 
  • Highlights the need to secure the participation of women in agricultural development and states that women need to be recognized as farmers in their own right.
  • According to the policy, women’s access to and control over household resources remain marginal. The policy states that the role of women in agricultural development needs to be re-emphasized and their participation in agricultural organizations ensured. It also states that the prevalent socio-cultural norms relating to women will have to be changed. It emphasizes the need to assist women in overcoming their constraints – lack of skills and poor access to services and finance – in participating in development efforts (18).

The National Gender Policy of 1997:

  • Recognizes the value of traditional practices, but strongly urges changes to aspects of culture which have the effect of discriminating against women. 
  • In its discussion of strategies to promote equal economic rights and independence, the policy commits the government to enact legislation to ensure “equal rights to inheritance and to ownership of land and other properties, credit, natural resources and appropriate technologies” (15).
  • The chapter of the policy on gender and legal affairs notes that “it is critical that all the discriminatory laws including customary law” as well as legal practices in the areas of family, civil, labour and commercial law are “reviewed, amended and/or removed …” (15).
  • It calls for supporting women in all mainstream national, regional and local development initiatives (14).

The National Gender Plan of Action 1998−2003:

  • Emphasizes the need for change in customary law and practices relating to marriage and inheritance.
  • Includes commitments to “review laws and traditional practices which create barriers for women to ensure equal rights and access to economic resources” and to ensure that law reform takes place in a number of areas, including “customary law on marriages and inheritance” (14).

The National Land Policy of 1998:

  • Provides for a unitary land system for the country, in which all citizens have equal rights, opportunities and security across a range of tenure and management systems. 
  • Has a specific gender provision in accordance with the Constitution. Women are accorded the same status as men with regard to all forms of land rights, either as individuals or as members of family land ownership trusts. According to the policy, everyone, irrespective of gender, is entitled to maintain the land rights enjoyed during their spouses’ lifetimes (14).

The National Resettlement Policy of 2001:

  • Aims at redressing past imbalances in the distribution of economic resources, particularly land. The target population includes a wide range of people, including women. Under the programme, the government has purchased farms for resettlement purposes and constructed and allocated houses. In addition, many farms have been allocated to emerging black commercial farmers under the Affirmative Action Loan Scheme since 1992 (14).

The Communal Land Reform Act of 2002, amended by the Communal Land Reform Amendment Act, 2005 (Act No. 11 of 2005):

  • Provides for the recording and registration of all land rights in communal areas, either as customary land rights or as rights of leasehold. 
  • Recognizes that men and women are equally eligible for individual rights of tenure on communal land, and that the treatment of widows and widowers is the same (14).

The National gender Policy (2010-2020) seeks to create an enabling environment for institutions and sectors to mainstream gender perspectives in line with the National Development Plans directives. Poverty and rural development are a key target of the policy. Policy objectives include:

  • Reduce and, eventually, eradicate poverty by improving access to and control of productive resources and services such as land, credit, markets, employment and training for women
  • Improve access to and control of productive resources and services such as land, credit, markets, employment and training for women
  • Promote gender equality in family relationships, and provide greater protection for women in all spheres of family life, including marriage, divorce, maintenance and inheritance (24).

Sources:  Les nombres affichés entre parenthèse (*) font référence aux sources énumérées dans la Bibliographie.