ASSIGNMENT COVER

2023 ACADEMIC YEAR

Student Name Esther Ndatulumukwa Puyeipawa Kalwenya and
Leticia Ndipopilwa Hipangelwa
Student number 200712799 and 221013083
Email Address 200712799@students.unam.na and
221013083@student.unam.na
Cell/Tel no 0811591119 and 0816352129
Campus Windhoek Campus

Course/Module Name Course/Module

Code
Human Rights Law

Assignment no (e.g. 1,
2 or 3, etc.).
2
Introduction

Our scenario as submitted prior is based on the access to justice for residence living in
conservancies with a primary focus on residence living in the salamaba conservancy. The
Salambala Conservancy is located in the Zambezi Region of Namibia. 1 It covers an area of
approximately 320 square kilometers and is situated in the eastern part of the region along the
Kwando River. The conservancy is home to a variety of wildlife, including elephants, lions,
hippos, crocodiles, and various antelope species. It is also an important habitat for a number of
bird species, making it a popular destination for birdwatching enthusiasts.

In the Zambezi region a group of over 1200 residents have been informed that there is an
eviction that is being sought against them and that they will be evicted from the conservancy
which they have been residing in for decade the application against them was founded on the
fact that the area is reserved for wild animals and which are to live there without disturbance
from the residents. Through this sought evection order, there is a notable dispute of land which
therefore affects over 1200 people being informed to vacate from the area meant for wild
animals to which the villagers are claiming that they had occupancy for a period of over 60
years.2

The people facing the eviction were approached by lawyers from a law firm that which are
therefore representing the Salambala Conservancy with threats and intends with filing a court in
July 2023 to which the villagers are therefore to be given only 60 days to immediately vacant
the land being claimed for wildlife occupancy only. The villages seem to be frustrated and in
fear whether their human rights will be protected should they seek legal representation on this
matter they will not be protected.

Due to fact that most of the residence are either low income earners or unemployed, there is a
high concern that their financial status may not fully give them an opportunity to fully and justly
be represented and whether justice will fully prevail, as they believe the Conservancy is wealthy
to an extent that they use the courts to protect their rights and the villagers will suffer due to

1
Sidney L. H W Odendaal . 2012 God stopped making land! ” Land Rights, Conflict and Law in Namibia’s Caprivi Region.
Available at https://www.lac.org.na/projects/lead/Pdf/godstoppedmakingland.pdf; last accessed 23 April 2023.
2
Sidney L. H W Odendaal. (2012:20)
affordability. In this case will highlight which human rights have been infringed, by whom and
how. We will also be discussing applicable human rights and their obligations.

Section 1

The scope and content of the human rights infringed in this case

The rights at issue in this case is the right to a fair trial by virtue of article 12(1) and the right to
Land/Property by virtue of Article 16(1).3

1. The right to a fair trial:

i) Article 12 (1)4 prescribes that:

all persons shall be entitled to a fair and public hearing by an independent, impartial and
competent Court or Tribunal established by law: provided that such Court or Tribunal may
exclude the press and/or the public from all or any part of the trial for reasons of morals, the
public order or national security, as is necessary in a democratic society.

Article 12 (1) is further substantiated by article 25(2)5 that states that:

Aggrieved persons who claim that a fundamental right or freedom guaranteed by this
Constitution has been infringed or threatened shall be entitled to approach a competent Court
to enforce or protect such a right or freedom, and may approach the Ombudsman to provide
them with such legal assistance or advice as they require, and the Ombudsman shall have
the discretion in response thereto to provide such legal or other assistance as he or she may
consider expedient

The Salambala conservancy case6 involves allegations of unfair treatment and violations of
human rights during the trial process. 7The trial process has been criticized for a number of
reasons, including the lack of adequate legal representation for the accused, the use of hearsay
evidence, and the denial of bail. In addition, there have been allegations of corruption and
political interference in the trial process. One of the most significant concerns in the case is the
denial of bail to the accused, which has resulted in some individuals being held in pre-trial

3
The Namibian Constitution,1990
4
The Namibian Constitution,1990
5
The Namibian Constitution,1990
6
Salambala Conservancy v Mukata 2002 (3) NAHCMD 340 HC
7
(Ibid).
detention for an extended period of time. This has been described as a violation of their human
rights, as they have not been convicted of any crime and are being held without trial. 8

Another issue in the case is the use of hearsay evidence, which has been used to incriminate
the accused. Hearsay evidence is generally considered unreliable, and its use in court
proceedings is controversial. There have also been allegations of corruption and political
interference in the case. Some individuals have suggested that the prosecution of the
community leaders and activists is politically motivated, and that the government is seeking to
silence critics of its policies.

2. The right to Land/property

Article 16 (1)9 prescribes that:

All persons shall have the right in any part of Namibia to acquire, own and dispose of all
forms of immovable and movable property individually or in association with others and to
bequeath their property to their heirs or legatees: provided that Parliament may by legislation
prohibit or regulate as it deems expedient the right to acquire property by persons who are
not Namibian citizens.

The Salambala Conservancy case in Namibia is said to be a complex situation that involves
various issues related to the infringement of the right to land. Below are some of the key
issues10:

1. Historical land dispossession: The San people, who are the indigenous inhabitants of the
Salambala Conservancy, were historically dispossessed of their land and natural
resources by colonial powers and later by the Namibian government. This has resulted in
a loss of control over their traditional lands and natural resources, including wildlife,
which has significant cultural, social, and economic implications for their communities.
2. The creation of the Salambala Conservancy: The creation of the Salambala Conservancy
was an attempt to address the historical land dispossession of the San people and to
provide them with greater control over their natural resources. However, the
implementation of the conservancy has been marred by various challenges, including

8
(Ibid).
9
The Namibian Constitution,1990
10
Salambala Conservancy v Mukata 2002 (3) NAHCMD 340 HC.
 disputes over land tenure and the rights of community members to access and benefit
from natural resources.
3. Encroachment by commercial farmers: Another issue related to the infringement of the
right to land in the Salambala Conservancy is the encroachment of commercial farmers
on community lands. These farmers often have larger land holdings and greater access
to resources, which can lead to conflicts over land use and resource allocation.
4. Conflicts over wildlife management: The Salambala Conservancy is also home to a
significant amount of wildlife, which has become a major source of income for the
community through tourism and trophy hunting. However, there have been disputes over
the management of wildlife resources, particularly between the conservancy and
commercial farmers who may have competing interests.
5. Lack of meaningful consultation: Finally, there have been concerns about the lack of
meaningful consultation with community members in the creation and management of
the Salambala Conservancy. This has led to a sense of frustration and mistrust among
some community members, who feel that their voices are not being heard in decisions
that affect their land and livelihoods. Overall, the Salambala Conservancy case highlights
the complex and interconnected issues related to the infringement of the right to land in
Namibia. 11

Section 2

The scope and content of applicable rights

The Salambala Conservancy case involves two distinct human rights issues: the right to land
and the right to a fair trial.

The right to land is a fundamental human right enshrined in the Namibia Constitution (article
16(1)) and in various international instruments, including the Universal Declaration of Human
Rights and the International Covenant on Economic, Social and Cultural Rights12. This right
recognizes the importance of land as a source of livelihood, cultural identity, and social well-
being for individuals and communities. The Salambala Conservancy case involves a dispute
over land ownership between the Salambala Conservancy and a private company,
11
Salambala Conservancy v Mukata 2002 (3) NAHCMD 340 HC.
12
United Nations. 1996. International Covenant on Economic, Social and Cultural Rights. Available at
https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-
rights. Last accessed on 24 April 2023
 Kavango-Zambezi Trans frontier Conservation Area. The Salambala Conservancy argues
that it has traditional ownership of the land, while the private company claims to have
acquired the land through a lease agreement. The case raises important questions about the
recognition and protection of indigenous land rights, the role of the state in regulating land
ownership, and the balance between economic development and environmental
conservation13.

The right to a fair trial is also a fundamental human right protected under the Namibian
constitution in article 12 and in international law, including the International Covenant on
Civil and Political Rights. This right guarantees individual the right to a fair and impartial trial
before a competent and independent tribunal, the presumption of innocence until proven
guilty, and the right to adequate legal representation. In the Salambala Conservancy case,
the government of Namibia has been accused of violating the right to a fair trial by arresting
and detaining community leaders without charge, denying them access to legal
representation, and using excessive force to quell protests against the land dispute. These
actions raise important questions about the protection of human rights during periods of
conflict or unrest, the role of law enforcement in upholding human rights, and the need for
effective remedies for human rights violations.

With reference to the relevant general comments on human rights, the Salambala
Conservancy case highlights the need for states to respect, protect and fulfil the right to land
and the right to a fair trial. The Committee on Economic, Social and Cultural Rights has
issued General Comment No. 7,14 which emphasizes the importance of recognizing and
protecting traditional land rights, particularly for indigenous peoples. The Committee on Civil
and Political Rights has issued General Comment No. 32, 15 which provides guidance on the
scope and content of the right to a fair trial, including the need for prompt and impartial
investigations into alleged human rights violations, and the need for effective remedies for
victims of such violations. Both general comments emphasize the importance of ensuring
that human rights are respected, protected and fulfilled, even in cases involving competing
interests or conflicting priorities.

Human rights obligations

13
Sidney L. H W Odendaal . 2012 God stopped making land! ” Land Rights, Conflict and Law in Namibia’s Caprivi Region.
Available at https://www.lac.org.na/projects/lead/Pdf/godstoppedmakingland.pdf; last accessed 23 April 2023.
14

15
The Salambala Conservancy case involves the human rights of the local communities who
depend on the natural resources of the area for their livelihoods. The case raises various
human rights obligations that apply to the state and other actors involved in the management of
the conservancy. The human rights obligations relevant to this case include the obligation to
respect, protect, and fulfil human rights, as well as the four As: availability, accessibility,
acceptability, and quality (4AQ) obligations.

1. Obligation to respect: The obligation to respect human rights requires that the state and
other actors refrain from interfering with the enjoyment of human rights. In the Salambala
Conservancy case, this means that the state and other actors should not engage in
activities that harm the environment or the livelihoods of the local communities. For
example, they should not engage in activities that pollute the rivers or damage the
forests, which would negatively impact the community's right to a healthy environment.
2. Obligation to protect: The obligation to protect human rights requires that the state and
other actors take measures to prevent human rights violations by third parties. In the
Salambala Conservancy case, this means that the state should take measures to prevent
companies or individuals from engaging in activities that harm the environment or the
rights of the local communities. For example, the state should monitor the activities of
companies that extract natural resources from the area to ensure that they do not cause
environmental damage or violate the rights of the local communities.
3. Obligation to fulfil: The obligation to fulfil human rights requires that the state and other
actors take positive steps to ensure the enjoyment of human rights. In the Salambala
Conservancy case, this means that the state should take steps to ensure that the local
communities have access to their natural resources and are able to use them to support
their livelihoods. For example, the state could provide support for sustainable agriculture
and fishing practices that would enable the local communities to maintain their traditional
ways of life.

4AQ Obligations:

 Availability: The state has an obligation to ensure that there is a sufficient quantity of
natural resources, such as water and food, available to the local communities in the
Salambala Conservancy. This includes taking measures to prevent over-extraction or
overuse of these resources.
  Accessibility: The state has an obligation to ensure that the local communities have
physical and economic access to natural resources, such as water and food, in the
Salambala Conservancy. This includes ensuring that roads and other infrastructure are in
place to enable the communities to access these resources.
 Acceptability: The state has an obligation to ensure that the natural resources available
to the local communities in the Salambala Conservancy are culturally acceptable and
meet their specific needs. This includes taking into account the traditional practices and
cultural values of the local communities when making decisions about the management
of the conservancy.
 Quality: The state has an obligation to ensure that the natural resources available to the
local communities in the Salambala Conservancy are of sufficient quality to meet their
basic needs. This includes ensuring that the water is safe for drinking and that the soil is
fertile enough to support agriculture.

Section 3

The human rights that have been infringed their constitutional justification

The Salambala Conservancy case involves the human rights of the local communities who
depend on the natural resources of the area for their livelihoods. The case raises various
human rights obligations that apply to the state and other actors involved in the management of
the conservancy. The human rights obligations relevant to this case include the obligation to
respect, protect, and fulfil human rights, as well as the four As: availability, accessibility,
acceptability, and quality (4AQ) obligations.

The constitution provides for the protection of minority rights, including the rights of indigenous
communities, and recognizes the importance of sustainable development. The Salambala
Conservancy case involves a dispute between members of the Salambala Conservancy and the
Namibian government over the government's decision to grant a logging concession to a foreign
company within the conservancy's boundaries. Members of the conservancy argue that this
decision violated their rights to land and a fair trial under the Namibian constitution.

In order to determine whether or not the infringement of these rights in this case was justified
under the Namibian constitution, a legal analysis would need to be conducted. This would
involve examining the specific provisions (article 12 and Article 16) of the Namibian constitution
that relate to these rights, as well as any relevant case law and other legal principles.

It is important to note that the interpretation and application of constitutional provisions can be
complex and subject to debate, and different legal experts may have different opinions on the
matter. It is also worth noting that the Namibian constitution includes a provision for the
protection and promotion of fundamental human rights and freedoms, and that this provision is
considered to be one of the most important aspects of the constitution.

Ultimately we are of the opinion that, any determination of whether the infringement of these
rights in the Salambala Conservancy case was justified would need to be made by a competent
legal authority with appropriate jurisdiction.

Conclusion

In conclusion, the Salambala Conservancy case in Namibia involves two distinct human rights
issues: the right to a fair trial and the right to land. The right to a fair trial is enshrined in Article
12(1) of the Namibian Constitution and is essential for ensuring that individuals are protected
from unjust treatment during the trial process. The Salambala Conservancy case has been
criticized for various violations of human rights during the trial process, including the lack of
adequate legal representation, the use of hearsay evidence, and the denial of bail.

The Salambala Conservancy case raises various human rights obligations that apply to the
state and other actors involved in the management of the conservancy. These obligations
include the obligation to respect, protect, and fulfil human rights, as well as the 4AQ obligations.
The state and other actors should take steps to ensure that the local communities have access
to their natural resources and are able to use them to support their livelihoods, while also
protecting their human rights and the environment.

On the other hand, the right to land is enshrined in Article 16(1) of the Namibian Constitution
and recognizes the importance of land as a source of livelihood, cultural identity, and social
well-being for individuals and communities. The Salambala Conservancy case involves disputes
over land ownership, encroachment by commercial farmers, conflicts over wildlife management,
and lack of meaningful consultation with community members in decision-making processes.
Overall, the Salambala Conservancy case highlights the complex and interconnected issues
related to the infringement of the right to land in Namibia and the importance of protecting the
right to a fair trial to ensure justice and protect human rights.