Namibia’s history is one tainted by grotesque land evictions en masse and natives suffering dispossession at the hands of settler colonialists and apartheid-inspired forced evictions. This legacy subsists today, with land and housing provision being the most emotive of Namibia’s socio-political debates, featuring prominently in the recent State of the Nation Address. The issue has once again found itself before the courts, most recently in Likuwa v City of Windhoek, decided by the Namibian High Court.
In brief, the facts are that Ms. Likuwa and fourteen other applicants had set up corrugated iron shacks as homes on land at Agste Laan informal settlement, which is owned by the City. They were removed by the City’s Police at 4 a.m. on the morning of 28 March 2017. With the assistance of a land activism movement, they approached the High Court on an urgent basis seeking two-fold relief. First, that the City be interdicted from unlawfully evicting, demolishing or removing their building materials from the land, that the City be order to restore possession of building materials it seized, and that the City restore their demolished homes. The second aspect of the application was to review and set aside the decision of the City to evict them and demolish their homes without an eviction order. The judgement addressed the first aspect only as the second aspect is to be argued before the Court on 28 April 2017.
The Court dismissed the interdict application as the applicants had not, through evidence they adduced, met the requirements of the mandament van spoilie remedy (a common law remedy used by a person who has been dispossessed of goods without following due legal procedure). Specifically, they had no prima facie right based on a “peaceful and undisturbed occupation” of the land at the time that the City demolished their homes. This was primarily because Ms. Likuwa’s assertions that she (together with her three minor children) had been in occupation of the land for three years was not accepted by the Court. The application was therefore dismissed with an order that the applicants vacate the land by 28 April 2017.
I would like to highlight three takeaways from this case. First, the Court, in arriving at its decision, does not give any weight to the material fact that the Ms. Likuwa is a mother of and resided with three minor children, including a three-month old baby. The Namibian Constitution and various binding international treaties require that, as the most vulnerable members of society, children’s best interests be considered and safeguarded, particularly in evictions, through measures such as the provision of alternative accommodation. The Court lost an opportunity to incrementally develop this crucial aspect of the law in Likuwa.
Secondly, the Court relied on common law, rather than human rights law, as the basis for assessing the lawfulness of the City’s actions. The Namibian Constitution does not explicitly provide for socio-economic rights, but, as counsel for the applicant argued, these rights are implied: the right to housing, for example, should be interpreted as part of the constitutional right to dignity. This approach would require the City to demonstrate that its actions were a proportionate interference with that right. It should not be sufficient for courts to rely solely on pre-constitutional common law doctrines such as the mandament van spolie remedy in the determination of disputes, such as Likuwa, with rights implications.
Finally, the manner in which land owners (such as the City in Likuwa) have sought to affirm their property rights shows that Namibian eviction laws are outdated, haphazard and remain unclear. For instance, Namibia continues to rely upon the pre-constitutional 1985 Squatters Proclamation, certain sections of which were struck down as unconstitutional by the Supreme Court in Shaanika because they permitted evictions without a court order. The creation of a new, constitutionally coherent, socially sensitive legislative framework that clearly prescribes rights, responsibilities, procedures and processes for preventing both illegal evictions and unlawful occupations are ‘low-hanging fruit’ that can be ‘picked’ in meaningfully addressing aspects of the land and housing questions. Legislative intervention would aid in consolidating the rule of law by ensuring compliance by private individuals and state organs who assert their property rights, as well as affording legal protection for the dignity of those socio-economically deprived and indigent members of society who increasingly resort to self-help through land occupations.