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On the 18th of August this year, the High Court of Namibia delivered a ruling which represents a critical legal victory for the !Kung and Ju/’oan (San) communities living in the N≠a Jaqna and Nyae Nyae conservancies in North East Namibia.
The Nyae Nyae and N#a Jaqna Conservancies are the only two San conservancies in Namibia and are situated on the ancestral lands of the San. It is one of the last remaining territories on which the San still possess rights, particularly the right to hunt and to gather veldkos. Since being declared a Community Forest in 2003, the community there has managed to develop successful, award winning community based natural resource management models, and to revive some of their traditional governance structures, thus partially regaining their rights to sovereignty as a people.
Their rights to their territory, however, are under constant threat from Herero cattle farmers who invade the conservancy territory, erecting illegal fences and intimidating the local San people when they object to these illegal activities.
Lara Diaz, Director of the Nyae Nyae Development Fund (NNDFN) explains: “In Nyae Nyae this takes the form of commercial farmers, mostly Hereros, based in Tsumkwe grazing their cattle on conservancy land and using conservancy resources such as water and wood without authority from the local community leadership.”
In N≠a Jaqna, the Traditional Authority had given farmers permission to utilize areas of land without the approval of or communication to the Conservancy as is required by law in an agreement signed by the Traditional Authority. The farmers have been grabbing the land by illegally fencing areas of the conservancy off. Conservancy members are then unable to utilize those areas of land for Devils Claw harvesting or veld food gathering - their main sources of livelihood. The conservancy land has been specifically legally zoned for these purposes.
In 2011, faced yet again with an imminent land grab, the community, through the NNDFN, an organisation which supports the N#a Jaqna and Nyae Nyae Conservancies, approached the Indigenous Peoples Rights Programme at OSISA to assist them in resolving this crisis.
With support from OSISA in 2011 and 2012, the NNDFN enabled the community to monitor, document and follow up on these violations and to raise awareness of the public and responsible authorities, with the aim of bringing these land grabs to an end.
The project consisted of various interlinked interventions spread across multiple partnerships: A Land Rights Observer was hired to record in detail the violations which were occurring.This entailed physically mapping all the illegal fences and recording the GPS coordinates. Given that there were more than a hundred such fences, with more cropping up almost weekly, spread out across an area of 912 000 hectares, this was no mean feat. It was also undertaken at considerable physical risk to the data collectors, as the farmers often showed no compunction about physically intimidating the San.
A media campaign was embarked on to raise awareness of the community’s plight, a senior TA Counsellor, Sarah Zungu, was trained in dealing with the media, and she quickly emerged as an effective spokesperson for her community.
This campaign ultimately proved successful, drawing the attention of the President and the Minister of Environment and Tourism, Pohamba Shifeta, who professed his outrage at the apparent impunity enjoyed by the commercial farmers and the apparent inability, if not outright refusal of the police to enforce the law.
Nonetheless, progress was slow. As soon as one fence was taken down, several more would be erected, and in 2014 the NNDFN approached OSISA again to support them in taking the matter to court with the help of the Legal Assistance Centre, a public interest law center and a long-standing grantee of OSISA.
This is not yet the end of the matter, as it is anticipated that the farmers will appeal the judgment, and many of them may simply ignore the courts, as they have done in the past. Nonetheless, this is a victory for the !Kung as well as the rule of law. It sets a precedent for the neighbouring Nyae Nyae Conservancy, where the Ju/’oan are facing similar problems.
For 400 years or more, the San have faced, and continue to face, racism, exclusion and exploitation. One court victory will not undo the centuries of harm that has been visited upon them, nor can one reasonably expect that any intervention, in and of itself, will do so. However, by holding those in power to account, in resisting the invasion of their lands and in using the power of their voice: - this represents a small but significant step towards the defence of what remains of their ancestral lands and the restoration of their dignity as a people.