NAMIBIA
1
NDP4
POLICY, PLANS AND PRIORITIES
The fourth National Development Plan (NDP4) 2012/13-2016/17 and the long-term
Vision 2030 (issued in July 2012) are being implemented. The main aim of NDP 4
is focusing on the execution of development strategies. NDP 4 has added another
dimension, monitoring and evaluation development, while under Vision 2030
Namibia aims to become an industrialised and knowledge-based economy. The
aim is to achieve economic diversification and rapid growth to reduce widespread
poverty, unemployment, urban-rural disparities, and the incidence of HIV / AIDS,
while accelerating productivity increases in agriculture, particularly subsistence
agriculture.
Economic growth has been variable over the past 22 years, and the rate has been
below the level required to actualise Vision 2030. At the same time, the gross
domestic product (GDP) increased at a higher rate than the population did, and this
resulted in a reclassification of Namibia as an upper – middle – income country
from 2009. Namibia is accelerating the pace of structural reforms, with a focus on
encouraging domestic and foreign investment through a more flexible labour
market and further improving the business climate.
FDI Advantages &
Disadvantages
Institutions
NIC
Namibia has a relatively small domestic market, high transport costs, high energy
prices, and limited access to skilled labour. These disadvantages are offset by
what WTO (2009) describes as “The main factors facilitating Namibia's inward FDI
have been political stability, favourable macroeconomic environment, independent
judicial system, protection of property and contractual rights, good quality of
infrastructure, and easy access to South Africa.” Namibia has access to SACU,
SADC Free Trade Area and markets in European Communities (Cotonou and EPA
negotiations) and United States (AGOA).
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INVESTMENT PROMOTION
2.1
Institutions
The Ministry of Trade and Industry (MTI) is responsible for investment policies
and strategies.
The Foreign Investment Act 1990, as amended, sets out the foreign investment
regime and established the Namibia Investment Centre (NIC) which is a
department in MTI.
The Offshore Development Company (ODC) established under the Export
Processing Zone (EPZ) Act is responsible for the promotion, marketing,
monitoring and co-ordination of all export processing zone activities and the
provision of services to EPZ enterprises.
The Development Bank of Namibia Act 2002 created the Bank which provides
start-up capital and finance for the public and private sectors through a number
of financial facilities delivered to borrowers by the commercial banks.
Namibia Diamond Trading Company, 50:50 joint venture between Government
and De Beers and managed by De Beers to market all Namibia's diamonds.
Namdeb Diamond Corporation, 50:50 joint venture between Government and
De Beers makes diamonds available for sorting and sale in Namibia and 15% of
the production of cuttable diamonds are sold for local processing.
NIC provides services to existing and potential investors, including information on
incentives and investment opportunities. NIC facilitates joint venture arrangements
and encourages domestic participation in investment. It can help overcome
1
bureaucratic obstacles to project implementation and assist with applications for
work permits and identification of land and premises. NIC seeks to promote
Namibia as a favourable investment destination to ensure Namibia obtains a fair
share of regional and global FDI flows. It identifies and advises on the elimination
of investment problems and reviews and recommends improvement of investment
incentives and legal and regulatory framework. NIC carries out research on the
investment climate and sector studies and monitors investment trends.
ODC
ODC monitors and regulates the EPZ regime and manages the EPZ Secretariat. It
provides information on potential and existing investment opportunities and
incentives under the EPZ Regime. ODC evaluates and process applications and
make recommendations for qualifying projects for approval by the EPZ Committee
and the Minister of Trade and Industry. ODC facilitates linkages between investors
and relevant Central, Regional, local government authorities and other service
providers for the provision of basic services required for business establishment
including liaison with NIC to expedite applications for work permits and business
visas. It assists with match-making to create joint ventures between domestic and
foreign investors. ODC provides after-care services to investors. ODC, Walvis Bay
EPZ Management Company and NIC work together to offer coherent range of
assistance to investors. ODC also manages business premises and industrial
parks on behalf of MTI.
Foreign Investment
Act 1990
The Act provides for the granting of a Certificate of Status Investment (CSI) and
special incentives for manufacturers and exporters. It provides for liberal foreign
investment conditions and equal treatment of foreign and local investors. With
limited exceptions all sectors of the economy are open to foreign investment. There
is no local participation requirement, but in mining the Government may seek
participation. The Act reiterates the protection of investment and property provided
for in the Constitution.
Review of Foreign
Investment Act
Government has initiated the review of the Foreign Investment Act, with a view to
enacting a new law on investment that is expected to adequately cater for the
needs of both domestic and foreign investors.
2.2
Investment and Export Incentives
Most incentives are available to Namibian and foreign investors and the main
incentives are tax incentives.
Training and Export
Grants
Grants may cover up to 50% of the direct costs of training and export promotion
funding. MTI Export Promotion Subdivision funds limited export promotion
activities, including costs of participation (travel, accommodation and brochures) in
overseas trade fairs and exhibitions. The activities must be approved in advance
by the Investment Centre and supported by quotations and / or invoices may be
paid in advance, subject to full verification of expenditure within 30 days of
incurrence. MTI funds the Feasibility Studies and Business Plan Support
Programme for SMEs. Funding is capped at N$150,000 (US$19,000) per study,
and is open to businesses which are majority owned by Namibians.
Studies undertaken by Government, whether on its own initiative or on request by
an investor or business, can be made available at 50% of production cost to a
person seeking to develop an investment opportunity. Executive summaries will be
made available for perusal free of charge. Requests for undertaking a study will
only be considered on submission of a project proposal and pre-feasibility study.
Sites and Premises
The Sites and Premises Development Programme is aimed at addressing a
shortage of suitable and affordable premises for micro enterprises and SMEs.
Modular business premises, industrial parks and technology demonstration centres
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were constructed to provide facilities for light manufacturing, trading and office
operations as well as access to productive machinery and technology. A total of 35
business sites and premises have been constructed and are on lease under the
Programme, as indicated on the map. (See Rosenthal C (2010) for more details on
this programme).
The Special Industrialisation Programme encourages certain manufacturing
activities, such as food processing, leather products, textiles and clothing, wood
products, paper products, and motor vehicle components. Assistance may be
through equity participation, provision of industrial infrastructure, support for joint
ventures or preferences for local manufacturers.
Financing Support
The Development Bank of Namibia provides financial support delivered through
commercial banks through facilities that include:
 Public Sector Facility includes finance for infrastructure projects by local
authorities and state-owned enterprises;
 Private Sector Facility for new ventures or expansion to enterprises in all
economic sectors;
 Enterprise Development Facility provides:
(i) bridging finance to majority Namibian-owned enterprises that have
secured contracts with the public sector or well established privatesector companies;
(ii) financing to disadvantaged groups to start up or expand businesses;
(iii) trade finance to provide pre- and post-shipment working capital to
majority Namibian-owned enterprises for the export of goods and
services, including tourism, and imports of capital goods;
 Special Development Fund, which provides breeding finance and medium-term
finance for SMEs for Namibian citizens and permanent residents, particularly
previously disadvantaged persons.
The Small Business Credit Guarantee Trust (SBCGT) provides loans to finance
fixed assets and working capital.
Disadvantaged
Citizens
In the State of the Nation Address 2010 the President stated “a strategy has been
adopted to support historically disadvantaged citizens especially, rural inhabitants
and SMEs to establish viable and self-sustaining businesses in order to create
employment and improve livelihoods. It also seeks to change the structure, content
and character of the domestic economy, away from high dependency on the
primary sector and exports of commodities, towards more value addition, as well as
securing of new export markets. The Ministry of Trade and Industry is tasked to
implement this strategy by assisting SMEs to access finance and to acquire
production equipment under the Group Purchasing Scheme; training and
mentorship services for SME managers, and the provision of consultancy services
to SMEs in the compilation of Feasibility Studies and Business Plans.”
2.3
EPZ: Eligible
Activities
EPZs, Freeports and other Special
Economic Zones
Export Processing Zone (EPZ) investment is subject to the Export Processing
Zones Act (No. 9 of 1995) and the EPZ Amendment Act (No. 6 of 1996). EPZ
status is not confined to a specific area or region. EPZ enterprises are free to
establish themselves anywhere in the country. An EPZ enterprise can set up as a
single factory enterprise at any clearly demarcated location of choice.
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The main focus of the EPZ is on export-oriented manufacturing activities, excluding
fish and meat processing. Extractive operations such as mining and fishing are not
eligible. All mining operations are taxable under the normal tax regime. However,
mineral processing or beneficiation operations may be considered and granted
EPZ status. For purposes of incentive administration and monitoring, there has to
be a clear separation between the mineral processing EPZ enterprise and any
other entities that that enterprise is doing business with or linked to, in terms of
business registration and identity, operations and management structures.
An EPZ enterprise must export all or at least 70% of its products outside the SACU
market (Namibia, Botswana, Lesotho, Swaziland and South Africa). However after
having been in operation for at least a year, an EPZ enterprise may apply to the
Minister responsible for the EPZ for special consideration and permission to sell up
to a maximum of 30% of its previous year's production output in the domestic
(SACU) market.
EPZ Administration
The ODC (with NIC) is responsible for the administration of EPZs and develops
and leases serviced industrial and business sites and factory shells. The Customs
and Excise Department of the Ministry of Finance monitors the movements of
inputs and outputs from EPZ enterprises to ensure export obligations are met.
Special Customs regulations apply to an EPZ. Walvis Bay EPZ Management
Company (WBEPZC) manages the Walvis Bay EPZ.
EPZ Incentives
EPZ status confers tax such as exemption from corporation tax, import duties, and
VAT on machinery, equipment, and raw materials imported into Namibia for
manufacturing. EPZ enterprises may hold foreign currency accounts and repatriate
capital and profits.
EPZ Application and
Approval
A project seeking EPZ status enterprise must be a green-field project and the
applicant must be incorporated as a new company under the Companies Act. A
brown-field project or operating company cannot convert to an EPZ enterprise. A
comprehensive business plan and EPZ application forms, which are available in
paper or electronic format, should be submitted to the ODC. The ODC works in
consultation with Namibia Investment Centre, the Ministry of Finance and Bank of
Namibia consider the application against the criteria in the EPZ Act.
Projects that meet the qualifying conditions for admission under the EPZ are
referred to the EPZ Committee for final consideration and approval. The
Committee consists of the Minister of Trade and Industry, the Minister of Finance
and the Governor of the Bank of Namibia, assisted by the ODC and officials drawn
from other Ministries and agencies. An approved applicant is issued with an EPZ
Certificate signed by the Minister of Trade and Industry. The Certificate sets out the
terms and conditions of admission to operate as EPZ enterprises.
2.4
Tax Incentives
Manufacturing enterprises can avail of tax incentives. More generous incentives
apply to export enterprises and EPZ enterprises with the only taxes paid by the
latter being personal income tax on employee income and 10% withholding tax on
declared dividends to non-resident shareholders.
Manufacturing Tax
Incentives
An 80% tax deduction scheme is in place for income derived from exports of
manufactured goods, other than meat or fish. Eligible manufacturers must be
registered with MTI and the Ministry of Finance.
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Manufacturing enterprises and exporters that do not have EPZ status can benefit
from tax exemption for dividend payments and accelerated capital allowances. The
incentives set out in the Income Tax Act include:
 an additional 25% allowance on manufacturing wages, training costs and, for
ten years, for land-based transport of materials used in manufacturing;
 an additional deduction for export promotion activities of:
(i) 25% if current export turnover has increased by 10% or less compared to
the average turnover for the previous three years,
(ii) 50% if the current export turnover has increased by more than 10% and
less than 25% compared to the previous three years, or
(iii) 75% if the current export turnover has increased by 25% or more
compared to the previous three years,
 accelerated capital allowances for:
(i) machinery and equipment, which can be fully written off over three years;
(ii) buildings used for manufacturing purposes (20% in the first year and 8%
per year for the next ten years), and
(iii) other buildings 20% in the first year and 4% per year for the next 20 years;
and
 a rate of tax of 18% on taxable income for ten years and on expiry of that term
the standard rate of 35% for manufacturing enterprises.
All manufacturing concerns claiming incentives must register with MTI, and for tax
incentives, must register with the Ministry of Finance. The Minister of Finance is
empowered to prescribe accounting procedures and regulations for manufacturing
enterprises qualifying for tax incentives. To promote control and prevent the
misuse of tax incentives, enterprises qualifying for such incentives will not be
relieved on the duty to submit fully substantiated annual tax returns
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Summary of special incentives for manufacturers and exporters, 2009
Registered
manufacturers
Cash grants
Corporate tax
50% of direct cost
of approved export
promotion activities
18% for ten years
after which the
standard 35% rate
applies
Eligibility and
registration
Manufacturing
Enterprises apply to
MTI and approval
by Ministry of
Finance
Establishment
tax package
Negotiable rates
and terms by
special tax package
Additional
deduction from
taxable income of
25%
Additional
deduction from
taxable income of
25-75%. Approved
by Ministry of
Finance, in
consultation with
MTI and Ministry of
Labour and Human
Resource
Development.
Available at 50% of
cost
Factory buildings
written off at 20% in
first year and 8%
per annum for 10
years
Normal treatment
Export promotion
allowance
Incentive for
training
Industrial studies
Special building
allowance
Stamp and
transfer duty
Transportation
allowance
VAT
Allowance for landbased transport by
road or rail of 25%
deduction from total
cost
Exemption on
purchase and
import of
Exporters
manufactured
goods
Not eligible
of
EPZ enterprises
Not eligible
80% allowance on
income from
exporting
manufactured
goods
Enterprises that
export
manufactured
goods whether
produced in
Namibia or not;
application and
approval by
Ministry of Finance
Exempt
Not eligible
Not eligible
Enterprises in
manufacturing,
assembly, and
exporting mainly
outside of SACU
markets apply to
the EPZ
Committee
through ODC or
EPZMC
Not eligible
Not available
Not eligible
Not eligible
Not eligible
Not eligible
Normal treatment
Exempt
Not eligible
Not eligible
Normal treatment
Exempt
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Registered
manufacturers
Exporters
manufactured
goods
of
EPZ enterprises
manufacturing
machinery and
equipment
Establishment tax
package
Where an investor wishes to establish a new manufacturing venture in Namibia, or
relocate an existing operation to Namibia, a special tax package may be negotiated
through MTI which makes recommendations to the Ministry of Finance. The
Minister of Finance may grant, in consultation with the Minister of any line Ministry,
special conditions to certain manufacturing enterprises the rate of tax payable, and
the terms under which this rate shall apply.
A feasibility study must be presented showing that existing industry will not be
unfairly disadvantaged, and the enterprise will contribute positively to Namibia’s
long-term economic growth. The package and conditions that are approved by the
Minister of Finance are published in the Government Gazette.
2.5
International Trade & Export
Promotion
Export licences are required for all products but in most cases, these are readily
obtained. Exports of diamonds are subject to export taxes and a quantity of
diamonds has to be made available to domestic polishers and cutters. Exports of
some agriculture products are contingent on providing specified quantities for
domestic processing. There is a 10% tax on unprocessed diamond exports. Export
levies apply to live exports of slaughter-ready cattle. Export levies include 15%
VAT. Raw hides and skins (wet and dry salted), and pickled hides and skins are
subjected to an export levy of 60% and 15% respectively.
Proposed Export
Promotion Agency
and Board of Trade
In the 2010 State of the Nation Address the President stated that “A Concept
Paper on the National Export Strategy was developed and plans are underway to
establish an Export Promotion Agency. Plans are also at an advanced stage for the
establishment of the Namibia Board of Trade (NTB) in keeping with a standing
SACU obligation. The Board will be responsible for tariff setting and investigating
cases of dumping of goods into the Namibian market.”
Namibia Facilities in
Other States
The President also stated that “We have identified lack of warehousing and
distribution facilities in neighbouring export markets as an impediment for Namibian
traders. Thus, Government plans to facilitate the construction of such facilities in
Angola, DRC and the Republic of Congo. Once completed, they will be leased to
Namibian exporters. This is in keeping with Namibia’s commitment towards deeper
regional economic integration and enhanced intra-Africa trade.”
2.6
Other Issues
Namibia does not have Black Economic Empowerment legislation but a
Transformation Economic and Social Empowerment Framework was produced in
2007 which proposed a Wealth Creation Scorecard.
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3
ACCESS AND ADMISSION OF
FOREIGN INVESTORS
3.1
Foreign Investment & Capital
Mobility
No registration as
investor except for
employment permit
The Foreign Investment Act as amended is the main legislation on foreign
investment but apart from application for a Certificate of Status Investment, which
is not obligatory to obtain, there is no formal registration process that applies to
foreign investors. To invest in Namibia a foreign investor requires an employment
permit under the Immigration Control Act.
Few Requirements
Specific to Foreign
Investor
A foreign investor that wishes to incorporate a company must register with the
Registrar of Companies under the Companies Act in the same way as a Namibian
investor. A branch of a foreign company that is to carry out business in Namibia
must also register with the Registrar of Companies. As seen below, sectors such
as mining and banking are subject to separate licensing arrangements which apply
to citizens and non-citizens. There are restrictions on the involvement of foreign
nationals in the sub-sectors of retailing, hair dressing and intra-Namibia shuttle
transport (taxi).
FIAS Views on
Foreign Investment
Act
FIAS (2006) report Namibia Investment Legislation, Incentives, and Institutions:
Recommendations for Reform states that key recommendations to the
Government of Namibia can be summarised as follows:
 Namibia’s Foreign Investment Act is outdated and needs to be replaced; (the
FIAS report provides detailed guidance on what a new Foreign Investment Act
should look like).
 The tax incentive structure of targeted benefits for certain sectors have not
achieved their objectives and should be removed, preserving appropriate
general tax incentives, most of which already exist in Namibia’s tax legislation
and are much more effective than the tax holidays in improving after tax rates of
return.
 The institutional structures for investment and export promotion need to be
improved, creating autonomous institutions empowered to deliver targeted
services to potential investors and exporters.
Reform of Foreign
Investment Act
The current draft bill is in its final stages and the new law is expected to address
the following:
a)
b)
c)
d)
Defining a domestic and foreign investor, as well as investment;
Restriction of some economic subsectors to foreign investors;
Investor performance requirements;
Ensuring that admission procedures for foreign investors are
transparent;
e) Make investor registration compulsory, and hence introduce a crucial
aspect of investor tracking and management;
f) Clear guidelines for investor dispute procedures.
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3.2
Foreign Investment Establishment,
Registering and Licensing
Processes
Approval for CSI
Foreign investment approval is only required where the investor is applying for a
Certificate of Status Investment (CSI) under the Foreign Investment Act. This
requires minimum investment of N$2 million (US$250,000) or acquisition of not
less than 10% of the share capital of a Namibian company. The project must be
assessed as contributing to Namibia's development, employment, or workforce
training. A CSI provides exemption from a future decision to reserve activities to
Namibians, and the right to international arbitration in a dispute with Government.
Is CSI Redundant?
The Services Group (2006) states: “Certificate of Status Investment is provided for
in the Foreign Investment Act. Its principal benefits all relate to the certificate
bearer’s enhanced access to foreign currency and greater facility of remitting
profits, fees, royalties, and dividends. The NIC considers the Act to have been
rendered obsolete by progressive liberalisation of currency controls since its
enactment in 1990. The NIC also reports that many, possibly a majority, of new
foreign investors show no interest in obtaining the Certificate of Status. Despite the
liberalisation of controls, however, there is some evidence that officials at the BON
and at some of the Authorized Dealers apply different rules to Certificate holders
than to other foreign investors.”
Registration
Before starting operations an investor should obtain approval for a business name
from the Registrar of Companies and register the company. To operationalize the
business an investor need to register with the local municipal health department
and obtain a health certificate or trading license, the Workmen’s Compensation
Commission, the Department of Inland Revenue (VAT and employment issues),
Receiver of Revenue as an employer (PAYE), the Social Security Commission and
apply for a Town Planning Certificate.
Mining
The Ministry of Mines and Energy (MME) is responsible for mining. The Minerals
Policy 2003 aims to attract investment and enable the private sector to take the
lead in exploration, mining, mineral beneficiation, and marketing, while ensuring
the responsible development and sustainable utilisation of mineral resources. All
mineral rights are vested in the State and are regulated under the Minerals
(Prospecting and Mining) Act (No. 33 of 1992), which provides for the
reconnaissance, prospecting, mining, disposal, and exercise of control over
minerals in Namibia. Licences and permits are authorised by the Minister on
recommendation of the Mining Commissioner. Namibia's mining industry is also
regulated by the Minerals Development Fund of Namibia Act (No. 19 of 1996) and
the Diamond Act (No. 13 of 1999). Applicants for licences and permits must be
Namibian citizens or companies registered in Namibia. Although not currently
required by law the participation of Namibians is encouraged prior to a licence
being granted. There is no requirement that the Government should hold equity
participation in mining ventures. Apart from the 50:50 joint venture between
Government and De Beers in Namdeb, the only Government equity holding in
mining is a 3% shareholding in Rössing uranium mine.
Diamonds
Diamonds are the largest mining activity. The main producer is the Namibia
Diamond Corporation (Pty) (Namdeb), which produces about 85% of Namibia's
diamonds. It is a 50:50 joint venture between the Government and De Beers. A
2007 agreement between the Government and De Beers led to the formation of the
Namibia Diamond Trading Company (NDTC), a 50:50 joint venture formed to
promote value added processing within Namibia. NDTC manages the Beneficiation
Programme which ensures a supply of diamonds in Namibia for sorting, valuing,
cutting, and polishing. 16% of Namdeb's production of cuttable diamonds are to be
sold to local diamond-cutting and polishing factories.
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The Diamond Act (No. 13 of 1999) controls the possession, purchase and sale,
processing and import and export of diamonds. The Diamond Board advises the
Minister on matters relating to the diamond industry and is funded by a percentage
levy paid by producers on annual gross sales. Licence holders are to give
preference to employing Namibians, with due regard to efficiency, economy and
practicability, unless the qualifications, expertise, and experience are not
obtainable locally. They are also to extend preferences to procurement of local
products and services and to train Namibian citizens. Imports and exports of
unpolished diamonds require permits in accordance with the Kimberly Process
Certification Scheme.
Communications
Sector
The Government's policy is set out in Namibia Vision 2030, and developed in the
draft Telecommunications Policy for Namibia and the Communications Act 2009.
The broad aim is to increase competition and to change the direction of regulation.
The Communications Act 2009 provides for the regulation of telecommunications
services and networks, broadcasting, postal services and the use and allocation of
radio spectrum. It establishes the Communications Regulatory Authority of Namibia
(CRAN) and provides for its powers and functions, the granting of special rights to
telecommunications licensees and the creation of an Association to manage the na
internet domain name space.
The Ministry of Information, Communication, and Technology is responsible for
public policy and establishing the legal framework. CRAN is the regulatory
authority responsible for issuing operating licences, promoting competition
between service providers and operators, and ensuring compliance with the legal
framework.
Banking and
Financial Services
The Bank of Namibia (central bank) regulates commercial banks, and the Namibia
Financial Institutions Supervisory Authority (NamFISA) regulates the non-banking
financial industry, including the Stock Exchange.
Banking Regulation
The Bank of Namibia issues licenses to banks. Banking licence applications must
meet statutory requirements, such as a minimum capital requirement of an
equivalent to 10% in terms of risk-weighted assets and the size of the business
model as determined by the Bank of Namibia. The business plan and strategies
must be financially viable, set out the structure and shareholding of the applicant,
and have permission from the home country prudential supervisor to expand its
business to Namibia. The owners, principal officers and board members must be
fit and proper persons to conduct banking business. Branches of foreign banks are
allowed to operate in Namibia since December 2010.
The Bank of Namibia Banking Supervision Division is responsible for prudential
regulation of the banking institutions, banking groups and micro finance banking
institutions such as FIDES Bank. The legislative basis for the Bank and its role and
responsibilities are the Banking Institutions Act, 1998(No. 2 of 1998), as amended (
Currency and Exchanges Act (No. 9 of 1933), Prevention of Counterfeiting and
Currency Act (No. 16 of 1965), Banking Institutions Act (No. 2 of 1998), Payment
Systems Management Act (No. 18 of 2003) and Financial Intelligence Act (No. 3 of
2007).
The Banking Institutions Act of 1998 laws relating to banking institutions, provides
for the authorisation of persons to conduct business as a banking institution, and
for the control, supervision and regulation of banking institutions. It protects the
interests of persons making deposits with banking institutions. The Act provides for
the winding-up or judicial management of banking institutions and for the
cancellation of authorisations.
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Non-Banking
Financial
Institutions
NAMFISA is established under the Namibia Financial Institutions Supervisory
Authority Act No. 3 of 2001) with responsibility for regulating and supervising nonbanking financial institutions in Namibia. The main functions are:
 To exercise supervision in terms of this Act or any other law, over the business
of financial institutions and over financial services; and
 To advise the Minister on matters related to financial institutions and financial
services, whether of its own accord or at the request of the Minister
Tourism
Government policy is based on the White Paper on Tourism, approved in 1994,
and the National Tourism Policy, approved by the Cabinet in December 2008. The
Ministry of Environment and Tourism is responsible for tourism policies. The
Namibian Tourism Board was established under the Namibia Tourism Board Act
(No. 21 of 2000) to implement tourism policy, regulate the industry, promote
Namibia as a tourist destination, promote training, provide advice and guidance to
persons in tourist industry, promote sustainable tourism and to assist in formulating
tourism policies. The Board regulates the industry by setting and enforcing
minimum standards.
State of Nation
Address 2010 &
Proposed Tourism
Legislation
The President stated that “In order to achieve effective regulation of the industry,
the Ministry of Environment and Tourism launched the Tourism Policy and has
commenced with drafting the Tourism Bill. Once enacted, the law will, among other
things, facilitate the entry of previously disadvantaged Namibians into the tourism
sector, in addition to the conservancies where they are currently benefiting.”
3.3
Immigration
Foreign Employment & Residence
The Immigration Control Act regulates the issuing of visas and permits in Namibia
by the Immigration Selection Board. Immigration policy is the responsibility of the
Ministry of Home Affairs.
The Immigration Board may not authorise the issue of an employment permit or
visa unless satisfied that the applicant (investor or employee):
 Is positively contributing to the economic development and growth of the
country as envisaged in Vision 2030; and
 The employment, business, profession or occupation concerned is not or is not
likely to be any employment, business, profession or occupation in which a
sufficient number of persons are already engaged in Namibia to meet the
requirements of the inhabitants of Namibia.
Employment Permit
The following documents are normally required to obtain a employment permit that
is valid for 1-2 years:
Documents required
1.
2.
3.
4.
5.
6.
7.
8.
9.
Two Passport –type photographs of each applicant;
Highest Educational qualification;
Previous work references;
Police clearance certificates from country of origin and each country of
residence for more than twelve months [All applicants 18 years and older];
Marriage Certificate
Proof that the position was advertised [Copy of advert to be attached];
A motivating letter providing a synopsis of the application;
A comprehensive business proposal [business people];
Proof of financial resources/bank statement, list of assets, equipment &
machinery imported into Namibia, auditor reports;
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10. Proof that the business was registered in Namibia [Copy of registration
certificate as well as share certificates to be attached];
11. Copy of lease agreement of business premises or proof of ownership of
business property [Deed of Transfer];
12. Copy of CV.
13. N$80,00 handling fee to be paid at the Ministry of Home Affairs and
Immigration
B. Forms to be completed;
1.
2.
3.
4.
5.
6.
7.
8.
9.
Main application form;
Radiological report;
Medical report;
Deed of surety /Repatriation
Representation by employed/Work Offer [employees only];
Business questionnaire [all business people];
Multiple visa entry form;
Outline for business plan
Payable fees
All documents must be translated into English by an official translator.
Temporary
Residence Permit
This permit is required by a spouse of a foreign investor and the application should
include:
Documents Required :
1.
2.
3.
4.
5.
6.
Letter of motivation/undertaking by husband or wife;
Police Clearance certificate from country of origin;
Copy of marriage certificate;
Copies of passport;
Copy of husband’s residence status in Namibia;
N$80.00 handling fee.
B : Forms to be completed :
1.
2.
3.
4.
Employment Visa
Application form for Temporary Residence or Study Permit;
Application for a Visa;
Deed of Surety;
Medical and Radiological Reports
This visa is normally valid for 3-6 months and the documents required for
application are;
Documents required;
1.
2.
3.
4.
Permanent
Residence Permit
Application form for a Visa (Sections 12 and 13/ Regulation 11);
Motivation letter;
Copy of passport;
N$80,00 handling fee to be paid at the Ministry of Home Affairs and
Immigration
To qualify an investor must proof that:
 Holds an initial valid employment permit and has applied for renewal of the
same permit;
12
 Has proven reinvestment in the economy or shows extensive growth of the
current business, permanently employs Namibians who are registered with
Social Security Commission, and owns property in Namibia.
3.4
Foreign Investor Access to Land
and Property Rights
The description of land transactions is drawn from the Services (2006) report.
Land Ownership and
Occupation
Some 37% of Namibia’s land is owned by the State, and largely occupied by
subsistence farmers and traditional communities, and 43% is in privately held large
farmsteads. The remaining 20% of land is either private land within municipal
boundaries or land which has been restricted for specific purposes. While privately
held land is secure of tenure and its sale, transfer, and registration are relatively
straightforward, the issues around communal land are more complex.
Private Land in a
Municipality
An investor seeking property within municipal boundaries can complete a zone
search in under an hour at the municipal offices. Once negotiations are underway,
the buyer obtains a Clearance Certificate from the city Cash Office indicating that
the land is free of debt obligations. The next mandatory process is for the title
transfer to be registered with the national Lands Registry, and in Namibia it is
compulsory for an investor to retain a lawyer to prepare and notarise documents. A
conveyancer, who collects the required taxes and fees from the investor, presents
the following documents on behalf of the investor:




Municipal Land
Bank guarantee or proof of deposit of funds;
Passport or official Namibian identification card;
Marriage certificate, if applicable; and
Local certificate of incorporation, if applicable.
An investor may wish to purchase land owned by the municipality. The Local
Authorities Act of 1992 sets out the powers and responsibilities of municipalities in
Namibia. Municipalities occasionally offer land for sale through public tender but
most investors will be involved in an unsolicited purchase. These are the main
steps for acquiring municipal land in Windhoek and there may be variations
between municipalities.
 The investor sends a written request specifying the proposed use and the
zoning required and the city responds in writing describing land available that
corresponds to the zoning needs specified.
 The investor chooses a plot and prepares a development proposal and a site
development plan along with the price he or she is prepared to offer.
 If indicated by city guidelines, an investor will be required to obtain an EIA prior
to completing the sale. The technical committee will then make a
recommendation to the City Council’s Management Committee whose
recommendations are submitted once a month to full Council. Among the
Council’s criteria for making a decision are the feasibility of the project, potential
for job creation, and offer price for the land.
 Once a land sale is approved by the City Council, the investor must advertise
twice in the local media and allow for a public objection period of ten days.
 If there is no objection, the investor will execute the sale by signing a contract
with the City Council and paying a deposit for the land. (After furnishing the 10%
deposit, previously disadvantaged persons are able to pay the balance of the
purchase price in 36 monthly instalments plus 5% interest.)
 The investor registers the sale in the local Deeds Office. The registration
process takes about 14 to 15 days.
13
 The investor, through a conveyancer, registers the title deed at the National
Title Deeds Registry in Windhoek.
Acquiring Land from
State
The Agricultural (Commercial) Land Reform Act of 1995 and the Communal Land
Reform Act of 2002 governs the process for individuals, including foreigners, to
obtain rights of usage under communal or traditional jurisdiction. An investor
wishing to obtain public land for a manufacturing or tourism project outside
municipal boundaries should contact the Ministry of Lands, Resettlement, and
Rehabilitation (MLRR). A foreign investor seeking to purchase a farm or rural land
needs to obtain approval from the Minister. Foreign investors are prohibited from
acquiring majority ownership of a close corporation farm business without prior
approval from the Minister. If acquiring rural land that is still in government hands,
in most cases, an investor will be offered a lease but the term of the lease may
extend to 99 years.
Acquiring Rural
Land from a Private
Owner
Foreign ownership restrictions apply to agricultural land. To redress the inequitable
distribution of fertile land Government has the first option to buy agricultural land
that becomes available for sale.
Foreign and domestic investors may seek to purchase privately owned land in rural
areas for a project e.g. a tourism project. Having identified the property and
negotiated a preliminary sales agreement with the owner, approval must be
obtained from the MLRR. The application must contain certain forms, available
from the Ministry, and a business plan. The MLRR reviews the application and
discusses it with other ministries responsible for agriculture or tourism or when the
applicant is a foreigner. If approved, the MLRR issues a certificate of approval to
the investor. The process takes about four months. Once approved, the sale may
take place and the transfer and registry of title follows with steps similar to those
described above for other land transactions.
Acquiring Land
Leases in
Communal
Conservancies
Conservancies have been established to find solutions to the management of
natural resources in lands held by several owners or by subsistence farmers
governed by traditional authorities. A communal conservancy consists of areas of
communal land on which members have pooled resources to use wildlife
sustainably. Private investors can secure leasehold property from traditional
authorities. The lands are under the custodianship of traditional authorities, but
there is no ownership of the land, either by the authorities, the farmers and
inhabitants, or the conservancy. Business use of communal lands requires the
consent of local authorities as well as permission from the MLRR. Successful
applicants receive a Permission to Occupy the designated land under a leasing
agreement. No minimal terms are prescribed for the length of the lease.
Land for Tourism
Activity
The Services Group (2006) Tourism Investor Road Map states that clear and
reasonable procedures exist for acquiring urban and municipal land. But it points
out that security of land tenure in Namibia may be subject to misunderstandings.
The Services Group further states that foreign investors are likely to be confused
by the fact that there is no formal ownership in communal lands and disputes are
frequent. Advertisement of the benefits Namibia offers in acquiring urban and
municipal land need not hide issues surrounding communal land. The NIC and the
NTB together should combat perceptions grown out of misunderstandings.
Namibia’s attractiveness to foreign investors in tourism projects will improve if the
security of ownership in municipal boundaries is outlined in promotional documents
and campaigns.
14
4
FOREIGN INVESTMENT
OPERATIONS
4.1
Employment
Employment
Standards and
Conditions
The Namibian labour law is governed by the Labour Act (11 of 2007). The Labour
Act prescribes basic conditions of employment, to which all employees are entitled.
The Act regulates industrial relations between employers, employees and trade
unions, the registration of trade unions and employer organisations and regulates
the prevention and settlement of labour disputes. Basic conditions of employment
include a maximum working week of 45 hours per week, overtime payment for
work done outside the normal working hours, weekends or public holidays, a
certain number of consecutive days of annual leave, provisions for sick leave,
maternity leave and compassionate leave, the right to belong to a trade union and
the right not to be unfairly dismissed. The Namibian courts use the principle of
fairness in determining if a dismissal is lawful. An employee dismissed without a
valid and fair reason, and not in compliance with fair procedure, shall be regarded
to have been dismissed unfairly.
Affirmative Action
The Affirmative Action (Employment) Act 1998 (as amended) aims to achieve
equal opportunity in employment in accordance with Article 10 and Article 23 of the
Namibian Constitution. It provides for the establishment of the Employment Equity
Commission and seeks to redress through appropriate affirmative action plans the
conditions of disadvantage in employment experienced by persons in designated
groups arising from past discriminatory laws and practices. The Act institutes
procedures to contribute towards the elimination of discrimination in employment.
The Act designated the following groups of Namibian citizens as previously
disadvantaged persons and as the target group for preferential treatment:
 Racially disadvantaged persons;
 Women; and
 The physically disabled.
Employers with fifty or more employees are obliged by law to comply with the
Affirmative Action Act. Compliance means demonstrating efforts to reach specific
targets in the employment of previously disadvantaged persons as reflected in
mandatory Affirmative Action Reports. Reports must be submitted annually and
comprise the following elements:





A Statistical Report;
An Affirmative Action Plan;
A Summary of goals, benchmarks, objectives;
Names of non-Namibian employees and their understudies; and
Records and documents used in preparation of the reports.
The procedures for preparing the report are stated in the legislation along with the
format of seventeen detailed tables. Compliance with the Act has been found to be
administratively burdensome.
4.2
Corporate Tax
Business Taxation
The standard rate of tax on companies and branches of foreign companies is 35%.
For manufacturing and export companies tax incentives (see above) reduce the
15
burden of tax. Mining companies are taxed at a rate of 37.5% and diamond
companies at a rate of 55%. Insurance companies are taxed on a special basis.
Non-Resident
Shareholder Tax
Dividends declared to non-resident shareholders are subject to 10% withholding
tax.
Royalty and Know
How Tax
There is a withholding tax of 10.5% on payments for royalty and know-how related
to the use of IP in Namibia.
Mining Royalties
and Levies
Following the 2008 amendment of the Minerals Act, royalties levied on gross sales
were set at 3% on precious metals, base and rare metals, nuclear fuel minerals
(Rössing Uranium at 6%), 2% on industrial minerals, non-nuclear fuel minerals and
semi-precious stones. Royalties on diamond production are 10% on rough and
uncut stones and 5% on unprocessed "dimension" stones. The Diamond Act No 13
of 1999 imposed an export tax of 10% on all unpolished diamonds not subject to
the 10% royalty. Exports of polished diamonds must be inspected by the Minister
to ensure that they are actually cut and polished. A higher company tax rate of
55% applies to diamond mining.
VAT
VAT is payable at two rates of zero or 15% on the supply or import of goods and
services by registered persons subject to registration criteria and exemptions.
4.3
Environment, Physical Planning,
Health & Safety, Consumer
Protection
Environmental
Management Act
2007
This Act is to promote the sustainable management of the environment and the
use of natural resources by establishing principles for decision making on matters
affecting the environment. It establishes the Sustainable Development Advisory
Council and provides for the appointment of the Environmental Commissioner and
environmental officers. The Act provides for a process of assessment and control
of activities which may have significant effects on the environment.
NSI and Standards
Under the Standards Act, 2005 (No. 18 of 2005) the Namibian Standards Institution
(NSI) was established. Although in most cases, Namibian standards are based on
South African and ISO standards, the NSI is responsible for standardisation and
conformity assessment, as well as providing certification services for management
systems, products, and persons. The NSI has been notified by the ISO / IEC
Information Centre as a standardising body that has accepted the Code of Good
Practice for the Preparation, Adoption and Application of Standards contained in
Annex 3 of the TBT Agreement with effect from 29 February 2008. NSI participates
in the SADC Standardisation, Quality Assurance, Accreditation, and Metrology
(SQAM) Programme.
4.4
Background
Competition Policy & Law
Namibia has enacted the Competition Act No. 2 of 2003 and issued Competition
Regulations in 2008. The Namibian Competition Commission (NaCC) was formally
launched in December 2009, but had previously been operating. Substantial
capacity building is required to enable the NaCC to carry out its functions. NaCC,is
seeking to enter a memorandum of understanding with the banking and
communications regulators, the Bank of Namibia and the Communications
Regulatory Authority of Namibia (CRAN), to delineate respective roles with respect
to regulation and competition. Article 40 Part 8 of SACU Agreement 2002 states
that each SACU member state shall have a competition policy and requires that
member states cooperate on enforcement of laws and regulations.
16
Competition Act
The Act is to safeguard and promote competition in the Namibian market and to
establish the Namibian Competition Commission (NaCC) and provide for its
powers, duties and functions. The purpose of the Act is to promote efficiency,
adaptability and development of the economy, provide consumers with competitive
prices and product choices, promote employment, and advance the social and
economic welfare of Namibians, expand opportunities for Namibian participation in
world markets while recognising the role of foreign competition in Namibia, ensure
that small undertakings have an equitable opportunity to participate in the
Namibian economy, and promote greater spread of ownership, in particular to
increase ownership stakes of historically disadvantaged persons.
Sectors and
Activities Subject to
Act
The Act applies to all economic sectors and entities except collective bargaining in
labour matters, activities conducted for non-commercial objectives, and goods or
services activities exempted by the Minister for Trade and Industry, with the
concurrence of the NaCC. The binds the State in so far as the State engages in
trade or business for the production, supply or distribution of goods or the provision
of any service, but the State is not subject to any provision relating to criminal
liability. It applies to the activities of statutory bodies, except in so far as those
activities are authorised by any law.
The Act prohibits restrictive business practices, restrictive agreements and
concerted practices including agreements between undertakings to fix prices,
engage in collusive tendering, set minimum resale prices or limit production. The
Act prohibits abuse of dominant or monopoly position by an entity or group of
entities and controls mergers that may reduce or distort competition.
Exemptions
NaCC may grant an exemption from provisions of the Act and undertakings may
apply for an exemption. The factors to be taken into account in granting an
exemption include agreements, decisions or concerted practices that contribute or
result in
 maintaining or promoting exports;
 enabling small undertakings owned or controlled by historically disadvantaged
persons, to become competitive;
 improving, or preventing decline in, the production or distribution of goods or the
provision of services;
 promoting technical or economic progress or stability in any industry designated
by the Minister, after consultation with the Minister responsible for that industry;
 obtaining a benefit for the public which outweighs or would outweigh the
lessening in competition that would result.
An exemption may also be granted in respect of intellectual property or the rules of
a professional association designed to maintain standards.
NaCC Functions
The NaCC is responsible for the administration and enforcement of the Act and
has the powers and functions
 to disseminate information on competition to persons engaged in trade or
commerce and the public
 to liaise and exchange information, knowledge and expertise with authorities of
other countries entrusted with functions similar to those of the Commission;
 to carry out research into matters referred to the Commission by the Minister;
 to advise on matters referred to the Commission by the Minister;
 to implement measures to increase market transparency;
 to be responsible for investigating contraventions of this Act by undertakings
and for controlling mergers between undertakings;
 on its own initiative, or at the request of the Minister, to consult with the Minister
on any matter which is of great economic or public interest;
17
 to advise the Minister, and any other Minister responsible for a relevant
industry, in relation to international agreements concerning competition matters
governed by this Act.
Administered
Prices
The Government sets prices of petrol, diesel, and paraffin (Petroleum Products and
Energy Act, 1999). The Namibian Agronomic Board has authority to set producer
prices for wheat and maize but it has not done so since 2001. The Electricity
Control Board is responsible for electricity tariff structures, which must be approved
by the Minister for Mines and Energy.
4.5
Bank of Namibia
Monetary Policy, Foreign Exchange
and Foreign Investors
Under the Bank of Namibia (BON) Act 1997 the BON is to:
 promote and maintain a sound monetary, credit and financial system in
 Namibia and sustain the liquidity, solvency and functioning of that system;
 to promote and maintain internal and external monetary stability and an efficient
payments mechanism;
 foster monetary, credit and financial conditions conducive to the orderly,
balanced and sustained economic development of Namibia;
 serve as the Government's banker, financial advisor and fiscal agent; and
 assist in the attainment of national economic goals.
Monetary Policy
Namibia is a member of the Common Monetary Area along with South Africa,
Lesotho and Swaziland. The South Africa Rand is legal tender in Namibia and may
be exchanged on a one for one basis for the Namibian dollar. The BON monetary
policy objective is the maintenance of price stability through targeting and
supporting the fixed exchange rate parity of the Namibian dollar with the South
African rand. The parity link means that monetary policy is largely set by the South
African Reserve Bank (SARB), and Namibian interest rates closely track South
African levels. Because of capital controls, the BON has some autonomy to deviate
its repo rate from the SARB rate.
Exchange
Controls
The Minister of Finance has, delegated to the BON all the powers, functions and
duties assigned to and imposed on the Treasury under the provisions of the
Exchange Control Regulations made under the Currency and Exchanges Act, for
the purpose of carrying out the functions of exchange control. The BON has in turn,
delegated several of the exchange control functions to certain commercial banks
that were appointed by the Minister of Finance to act as Authorised Dealers in
foreign exchange to assist the BON with the administration of controls. These
banks are permitted to buy and sell foreign exchange, subject to conditions and
within the limits prescribed by the BON. Exchange control measures directly control
or influence cross border flows of capital to discipline the local demand for foreign
currency, to protect the official foreign currency of the country, and to allocate
available foreign currency in the best interest of the country as a whole. Exchange
controls apply to a Namibian resident, a term which includes a foreign owned
business in Namibia, but different controls apply to a resident and a non-resident of
the Common Monetary Area.
EPZ and Exchange
Controls
An EPZ enterprise operates outside of the normal foreign exchange regime. There
is provision for an EPZ Foreign Current Account (held in foreign currency) and an
EPZ Non-Resident account which is a Namibian dollar account funded by foreign
currency but which is freely convertible and can be used to make Namibian dollar
payments for operations in the EPZ.
18
Foreign Investors
and Foreign
Exchange
Transfers
Non-Residents can invest in equity, operational financing requirements or in capital
equipment and assets through normal banking channels without reference to
exchange controls. Dividends can be freely transferred to non-resident
shareholders, except where local borrowings restrictions have been exceeded.
There is a 10% withholding tax (non-resident shareholders tax) payable on the
repatriation of dividends from Namibia to foreign shareholders and on interest
payments on foreign loans. Royalty payments require approval of the underlying
agreement by MTI. The impact of taxes may be limited through double taxation
agreements.
Restrictions on
Local Borrowing
Where non-residents directly or indirectly control 75% or more of a company’s
capital or earnings, the company may borrow or receive financial assistance up to
an agreed percentage of effective capital from Namibian sources. Effective capital
is share capital, reserves and loans from shareholders approved by Exchange
Control.
Certificate of
Status Investment
See 3.2. above where the question as to whether CSI is redundant is raised.
A person to whom a Certificate of Status Investment (CSI) is issued under the
Foreign Investment Act is granted rights which includes that the Bank of Namibia
shall ensure that there is available for purchase freely convertible foreign currency
to be used
 to repay, in accordance with a schedule approved by the Bank of Namibia, the
principal sum of any loan in foreign currency, the proceeds of which formed part
of the foreign assets invested in the enterprise, and to pay, subject to the prior
payment or the retention of any tax which may be due thereon, the interest and
service charges on such a loan as they fall due;
 to pay licence fees and royalties to persons ordinarily resident outside Namibia
in respect of any intellectual property which is employed in connection with the
enterprise, where such payments are due under an agreement which has been
approved under any law relating to the transfer of technology or under an
agreement approved by the Minister, with the concurrence of the Bank of
Namibia, and specified in the CSI
 for the transfer out of Namibia of the profits of the enterprise or, where the
enterprise is carried on as a branch operation by a company which is a foreign
national, for the payment to the head office of the company of remittances out of
funds representing the branch profits, after deduction or retention in either case
of any tax due;
 where an investment to which a CSI relates is an investment in a company, for
the payment to shareholders or stockholders ordinarily resident outside Namibia
of dividends out of the profits of the enterprise, after deduction of any tax due;
 where the enterprise or any part of the undertaking carried on by the enterprise
is sold to any person ordinarily resident in Namibia, for the transfer out of
Namibia of the proceeds of such sale;
 where the enterprise is a company which has reduced its share capital in
accordance with the provisions of the laws relating to companies, for the
transfer out of Namibia of the sum by which the capital is so reduced.
A CSI may provide for the retention in foreign currency outside Namibia of any
payment, or a proportion of any payment, for goods or undertaking exported from
Namibia.
The Foreign Investment Act reaffirms the Constitutional property rights and grants
the CSI holder to receive just compensation, without undue delay and in freely
convertible currency, for property expropriated by the State.
Legislation
Legislation on monetary and foreign exchange matters include:
19











Agriculture Bank of Namibia Act (No.13), 1994;
Bank of Namibia Act, 1997;
Banking Institutions Act, 1998;
Currency and Exchanges Act, 1933;
Financial Intelligence Act, 2007;
Long-Term Insurance Act (No. 5), 1998;
Payment Systems Management Act, 2003;
Pension Funds Act 1956;
Prevention of Counterfeiting and Currency Act, 1965;
Public Accountants and Auditors Act (No. 51), 1951;
Stock Exchanges Control Amendment Act (No. 26), 1992
4.6
Public Procurement
Tender Board
Under the Tender Board of Namibia Act, 1996, the Tender Board awards all
Government procurement contracts above a certain minimum value by public
tender, while Namibian suppliers receive price preferences based on local content.
According to WTO (2009) Namibian-registered domestic suppliers (including
subsidiaries of foreign-owned enterprises) receive price preferences based on local
content.
Local Content
Price Preferences
For Namibian-made goods, price preferences range from 6% where local content
(in production) is between 10% and 25%, up to 20% for local content exceeding
90%. For goods assembled in Namibia, price preferences range from 3% for local
content of 10% to 25%, to 10% if local content exceeds 90%. For services,
domestic suppliers and CSI (Certificate of Status Investment) foreign investors
receive price preferences of 5%, while preferences for small-scale domestic
industries range from 2% to 5%, depending on employment levels. Price
preferences of 2% to 5% also apply for suppliers located in communal or
underdeveloped areas, and of 2% for a fully Namibian owned public company.
Preferences are cumulative, and are applied to tender prices. In rare cases where
tenders are equal after allowing for all adjustments, including price preferences and
socio-economic factors, contracts are awarded based on local content levels.
Objective of Price
Preference
In comparing tenders, the Tender Board gives effect to the policy of the
Government to redress social, economic, and educational differences, to protect
and promote Namibian companies, empowerment groups, vulnerable groups, and
companies based in the regions (including rural and underdeveloped areas, local
manufacturers and producers and SMEs). The objective is to use targeted
assistance to help develop local industry and previously disadvantage groups. The
assistance includes sub-contracting opportunities, allocation of preferences, and
set-aside programmes for small entrepreneurs and youth groups and other groups
mentioned above. The Tender Board has made it a priority to award tenders / bids
to these groups.
Price preferences granted to Namibian-registered suppliers (which can include
foreign owned entities), under the government procurement regime, are based on
local content. Namibianisation policies in fisheries also favour local content. The
policy of developing a horticulture sector includes a domestic purchase
requirement for domestically produced horticulture products under the Market
Share Promotion Scheme.
Appeal against
Tender Decision
Tender decisions may be appealed to the Tender Board, the Office of the
Ombudsman, the Office of the Prime Minister, Anti-Corruption Commission, and
the courts.
20
4.7
Intellectual Property
Proposed
Legislation
The Industrial Property Act, 1 of 2012 was passed and the implementing
regulations are being drafted for gazetting. The new legislation is incompliance
with the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement
and it is to replace the Trade Marks in South West Africa Act, (Act No 48 of 1973),
the Patents Act, (Act No.9 of 1916) and Proclamation 17 of 1923. It may take time
for the bill to be enacted and become operational and it will require a range of
administrative regulations as well as the creation of an Industrial Property Office
and Industrial Property Tribunal and appointments to these two bodies. The new
legislation will regulate all forms of industrial property protection and replace
current legislation.
IP Institutions
The Registration of Companies, Patents, Trademarks, and Designs Division, of the
Ministry of Trade and Industry, administers industrial property legislation and
copyright legislation is administered by the Directorate of Copyright Services of the
Ministry of Information and Broadcasting.
Establishment of
Business and
Intellectual
Property Authority
The Business and Intellectual Property Authority (BIPA) Bill has been drafted and
ready for tabling in Parliament.
Current IP
Legislation
Until now, industrial property in Namibia has been regulated and protected under
legislation, some of which is out-dated. Patents and designs are currently protected
under the Patents and Designs Act (No. 37 of 1952), Patents and Designs Act (No.
9 of 1916), and the Patents, Designs, Trade Marks, and Copyright Proclamation
(No. 17 of 1923). The system of protection is currently based on registration on the
basis of formalities rather than substantive examinations. Trade Marks are
protected under the Trademarks in South West Africa Act (No. 48 of 1973). These
laws provide a degree of protection but fall short of compliance with provisions of
the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.
Copyright is protected under the Copyright and Neighbouring Rights Protection Act
(No. 6 1994 and subsequent amendments).
The object of the Bill is to provide for the establishment of an autonomous body,
the Companies and Intellectual Property Authority, to implement four different Acts
namely, the Companies Act, the Registration of Business Names Act, the Industrial
Property Act and the Copyright and Neighbouring Rights Act.
4.8
Investment Protection and Dispute
Settlement
Constitution
Article 16 Property
(1) 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.
(2) The State or a competent body or organ authorised by law may expropriate
property in the public interest subject to the payment of just compensation, in
accordance with requirements and procedures to be determined by Act of
Parliament.
Foreign
Investment Act
Section 11 provides that no enterprise, or part of an undertaking carried on by an
enterprise, or interest in or right over any property forming part of such undertaking
shall be expropriated except in accordance with the provisions of Article 16 (2) of
the Namibian Constitution. Where an enterprise or any part of an undertaking
21
carried on by an enterprise, or any interest in or right over any property forming
part of such undertaking is expropriated, the Government shall pay to the holder of
the Certificate just compensation for such expropriation without undue delay and in
freely convertible currency.
4.9
International Agreements and
Obligations – Trade and other
Agreements, BITs, DTTs
Namibia is WTO Member and is committed to a liberal trade regime. Namibia is a
member of SADC and was a member of the Common Market for Eastern and
Southern Africa (COMESA) until it withdrew in 2004.
SACU
The 2002 SACU Agreement provides for a national body to be established in each
member country to be in charge of SACU issues (including tariff changes) at the
national level and make recommendations to the Customs Union Commission via
the SACU Tariff Board.
WTO (2009) “As a member of SACU, Namibia applies the trade policy measures
already harmonised at the regional level, including the common external tariff
(CET) and contingency trade remedies. As over 78% of Namibia's imports are from
South Africa and enter Namibia duty free, its purely MFN regime applies to a
relatively small proportion of its imports, mostly transport and machinery equipment
from China, France, Germany, and Spain. Nevertheless, a number of important
non-tariff trade policy measures have not been harmonized within SACU, such as
customs procedures, standards and technical regulations, sanitary and
phytosanitary measures, public procurement, and internal incentives and taxes.”
Other Agreements
including EU and
USA
Namibia receives GSP treatment from Australia, Canada, the EC, Japan, New
Zealand, Norway, Russia, Switzerland, and the United States. The schemes have
been of limited importance to Namibia and have benefited only a few industries,
mainly because most of the schemes are either dormant or unused by the
business community or have been made obsolete by other preferential schemes,
such as the African Growth and Opportunity Act (AGOA) with the United States,
and the preferential arrangements with the EC under the successive Lomé
Conventions and then Cotonou Agreement, in the form of the interim Economic
Partnership Agreements (EPAs). Namibia sees negotiation of an economic
partnership agreement (EPA) with the EC as an opportunity for SACU countries to
harmonise trade relations with the EC and facilitate and support the SACU
integration agenda.
Zimbabwe
The Namibia-Zimbabwe Trade Agreement 1992 provides for reciprocal duty-free
market access, subject to rules of origin requiring at least 25% local content for
manufactured goods, and Namibia or Zimbabwe (as exporter) should be the last
place where substantial manufacturing has taken place.
Bilateral BITs and
DTT
Namibia has signed bilateral investment promotion and protection treaties with
Germany, Malaysia, Switzerland, Austria, Cuba, Finland, France, Italy, the
Netherlands, Spain, Angola, China, Vietnam, the Republic of Congo and Russia.
Namibia has double taxation agreements with France, Germany, India, Malaysia,
Mali, Mauritius, Russia, Portugal, South Africa, Sweden, and the United Kingdom.
ICSID
It has signed accession to the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States.
IP Agreements
Namibia is a member of the WIPO Convention, the Paris Convention
property, the Berne Convention on literary and artistic works,
Cooperation Treaty, the Madrid Agreement and Protocol on
registrations of marks, and The Hague Agreement and Protocol on
on industrial
the Patent
international
international
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deposits of industrial designs. It is also a member of the African Regional
Intellectual Property Organisation (ARIPO), the Banjul Protocol governing Trade
Marks and the Harare Protocol on patents. The WTO contact points under TRIPS
are the Ministry of Trade and Industry for Trade Marks and industrial designs; the
Ministry of Foreign Affairs, Information and Broadcasting for copyright and related
rights; and the Ministry of Agriculture, Water, and Forestry for plant and animal
varieties.
5
SADC RELATED ISSUES
Schlade and Matomba (2006) study for the Friedrich Ebert Foundation “Namibia on
Track to Meet SADC Targets” looked at macroeconomic policy (fiscal and
monetary policy), trade policy, labour market policy and social impact of policy
frameworks aimed at macroeconomic convergence and deepening SADC
integration. It referred to a major threat arising from deepening regional and trade
liberalisation is linked to institutional and capacity constraints in Namibia. The study
found that policies were designed and put in place but that the capacity to
implement, monitor and evaluate the policies is limited and that policy design is not
always well coordinated amongst Ministries. Given the discussions on investment
at bilateral level, SACU, SADC and SADC discussions on a Free Trade Area with
COMESA and EAC, the strains on Namibia’s institutional capacity will increase at a
time when the need for consistent analysis and coordinated action is all the
greater.
Bilateral Investment
Treaties
Bilateral Investment Treaties
Namibia Partner
Date of Signature
Date of Entry into Force
1.
Angola
20 March 04
2.
Austria
28 May 03
3.
China
17 Nov 05
4.
Republic of Congo
17 July 07
5.
Cuba
27 Jun 97
6.
Finland
31 Oct 02
21 May 05
7.
France
25 Jun 98
26 Feb 06
8.
Germany
21 Jan 94
21 Dec 97
9.
Italy
9 July 04
10.
Malaysia
12 Aug 94
11.
Netherlands
26 Nov 02
12.
Russian Federation
25 Jun 09
13.
Spain
21 Feb 03
28 Jun 04
14.
Switzerland
1 Aug 94
26 Apr 00
15.
Vietnam
30 May 03
1 September 08
1 Oct 04
15 signed 7 in force
Double Taxation
Agreements
Double Taxation Treaties
Namibia
Partner
Type of
Agreement
1.
Botswana
Income & Capital
Date of
Signature
Gazette
Publication
16 June 2004
14 Oct 2005
23
2.
France
Income & Capital
29 May 1996
25 Jan 1999
3.
Germany
Income & Capital
2 Dec 1993
25 Jan 1999
4.
India
Income & Capital
15 Feb 1997
25 Jan 1999
5.
Malaysia
Income & Capital
28 July 1998
24 Sept 2004
6.
Mauritius
Income & Capital
4 March 1995
25 Jan 1999
7.
Romania
Income & Capital
25 Feb 1998
25 Jan 1999
8.
Russia
Income & Capital
30 Mar 1998
25 Jan 1999
9.
South
Africa
Income & Capital
18 May 1998
25 Jan 1999
10.
Sweden
Income & Capital
16 July 1993
25 Jan 1999
11.
United
Kingdom
Income & Capital
14 June 1967
11 signed 2 with SACU members, 3 with SADC members
Agreements have been negotiated but not signed with Singapore and Zimbabwe
and negotiations are on-going with Belgium, Seychelles and Zambia.
24