The Flexible Land Tenure System Experience
in Namibia: an affordable, secure and
sustainable solution for low-income
households?
Willem Odendaal
“Integrating Land Governance into the Post-2015 Agenda:
Harnessing Synergies for Implementation and Monitoring
Impact”
World Bank Conference on Land and Poverty, Washington,
DC,
24-27 March 2014
1. Introduction
• Namibia, no large urban centres – environmental conditions
unfavourable to support large population, country susceptible to
sporadic droughts
• Namib Desert in West, Kalahari Desert in East. Namibia is SubSahara Africa’s driest country.
• Population estimated at 2 113 077 million people; geographical
area of approximately 824,000km²
• Population density of approximately 2.5 persons/km²
• German colonial rule from 1885 to 1915 – created two land use
sections. The Police Zone - white settlement held under freehold
title. Outside the Police Zone, comprised of the northern and northeastern parts of the country created for the indigenous African
population, whose movements outside these areas were restricted
by legislation. All land outside Police Zone is communal land, held
communally by mostly blacks.
Introduction (2)
• Namibia became British Protectorate during WWI; League of
Nations subsequently gave mandate to South Africa.
• Urban town planning policy of German and South African
administrations established town centres as exclusive white
residential, recreational and business areas
• Public and private investment concentrated in these “white”
town centres.
• The black population moved to centres as contract labourers,
lived in separate areas (townships); housing and other social
services inferior to “white areas”; permanent black
urbanisation discouraged
• “Pass laws” , contract labour system and prohibition of urban
land ownership, controlled most aspects of black residents’
lives.
2. The Urban Land Issue at and after
Independence
• With abolishment of apartheid at Independence
(1990) Namibian Constitution introduced the
right to all Namibians to move freely, to reside
and settle in any part of the country
• Increases of informal settlements followed,
especially around the traditionally black township
of Katutura in Windhoek - the capital and
economic focal point of Namibia
• People living in overcrowded conditions and
migrants from impoverished rural areas in
Katutura moved onto vacant municipal land
Urban Situation after Independence
Capacity challenges
Many local authorities are unable to plan,
survey and register land rights, due to
lacking technical expertise; accessing credit
for investment and development in low
income housing are difficult to obtain
Urban Situation after Independence
(2)
Legal Challenges
Freehold title and leasehold title remain
Namibia’s most secure titles because both titles
can be used as collateral
But, majority of Namibians cannot afford these
titles.
2.1 From Project to Bill
• To address these problems, town planners
suggested the development of a parallel
interchangeable property registration system
for Namibia, where the initial secure right is
not only simple and affordable, but also
upgradeable according to what the resident,
local authority and government need and can
afford at a given time.
Project to Bill (2)
• In 1994 MLR launched a pilot project investigating a parallel
interchangeable property registration system
• MLR and partners collaborated with informal settlement
communities throughout the country. The project benefitted from
funding and technical cooperation agreement between IBIS and
MLR.
• In 1997 MLR produced a policy document, Cabinet approves, called
it Flexible Land Tenure System (FLTS).
• FLTS designed to be maintained locally in a land rights office by
fewer skilled personnel than present system, making it simpler and
affordable.
• Recommendation that two new types of tenure, the starter title
and the landhold title, be introduced in parallel to the existing
freehold title
2.2 From Bill to Act
• 1st draft produced in 1999 and 4th final bill was completed
in Feb 2004. But since then process lost momentum.
• Reasons;
• - difficulties getting the bill onto Parliament’s agenda,
government had prioritized other legislation, i.e. the
commercial agricultural land reform programme.
• - financial investment in FLTS dependent on government
budget allocations. External assistance from donors for
financial and technical support, i.e. a computer-based
registering system, was sought soon after the bill was
finalized in 2004, but could not be secured at the time.
Bill to Act (2)
• Nevertheless, in 2004, in line with the requirements of the
proposed system, a land rights office was established in Oshakati - a
rapidly growing town in northern Namibia.
• Over 2 000 plots surveyed catering for low-income housing
communities. Surveyed plots were allocated to people already
residing on the land. Their names were put on a list as a means of
identifying them.
• But, it was not possible to issue starter and landhold title
certificates in absence of legislation.
• In any case, people upgraded existing corrugated houses to brick
houses.
• The fact that the land rights office has placed their names on a list,
apparently presented enough security to the community to invest
in upgrading new informal housing structures.
3. The Passing of the Flexible Land Act
in 2012
• While the final draft of the bill was completed
in 2004, it took Parliament 8 years to pass the
Act.
• Currently the Act is not yet enforced, because
its regulations are not yet in place.
3.1 The Objectives of the Act
• to create new forms of title to obtain
immovable property;
• to create a register for these new forms of
title; and
• to provide rights granted by these forms of
title.
3.2 Establishing Starter and Land Hold
Titles
• Starter title and landhold title schemes can only be established on land
situated within the boundaries of a local authority area or within the
boundaries of a settlement area. The reason for the establishment of
these rights are;
• it provides starter title holders with a statutory recognised secure title;
• it gives a starter title holder the opportunity to upgrade to a land hold title
as his or her financial circumstances improve.
• The holder of a starter title right may erect a dwelling on the “group
scheme”. The holder is entitled to occupy the dwelling in perpetuity, may
bequeath the dwelling to heirs and lease to another person.
• Starter title rights may also be transferred by agreement to any person
assigned by the transferor.
• The Registrar at the Deeds Office must register starter, holder titles and
the transfer of rights.
3.2.1 Legal requirements
• Juristic persons are not allowed to hold starter title rights;
• no one is allowed to hold more than one starter or if he/she is
already the owner of any immovable property or a land hold
title right in Namibia.
• Reasons –
• to protect and give preference to low-income earners who
truly want to obtain land;
• prevention of speculation in starter titles by juristic persons
such as companies.
• A landhold title holder, has all the rights that an owner of a
landhold title under the common law has; and
• has an undivided share in the common property
3.3 Upgrading of Starter Title Scheme
to Land Hold Title Scheme
• The upgrading of starter title scheme to landhold title
scheme allowed if 75% of the holders of rights in a starter
title scheme consent to upgrading.
• If authority granting application for the upgrading of a
starter title scheme to a land hold title scheme, the holders
of rights in that scheme who do not agree with the
upgrading, must be granted starter title rights in a similar
scheme by the relevant authority.
• When a starter title scheme is upgraded to a landhold title
scheme, every holder of starter title rights must be
allocated a plot in the land hold title scheme which must
correspond as closely as possible to the piece of ground
actually occupied by that person on the group scheme
concerned.
3.4 Upgrading of Starter Title or Land
Hold Title to Full Ownership
• Upgrading of starter title or land hold title to full ownership only
possible if a starter title scheme or land hold title scheme situated
within approved township.
• The following conditions apply;
• the group scheme must be surveyed and subdivided in accordance
with surveying and subdivision of land laws.
• upgrading may only be done when all the holders of rights in the
scheme concerned have agreed in writing to upgrading.
• if 75% of the holders of rights in the scheme agree with an
upgrading, the relevant authority must pay fair compensation to
the holders of rights that do not agree with the upgrading.
• upgrading costs carried by the holders of rights.
4. The Act’s Shortcomings
4.1 Coordination between
Communities and Local Authorities
• Earlier investigations of the FLTS demonstrated the
essentiality of local authority and community discussing the
formalisation process thoroughly before it begins.
• However, current focus of the Act is quite specific on the
role of local authorities in land management and
administration and less on the involvement of the
communities This is a shortcoming of the Act, since the
successful implementation of the Act would depend greatly
on the understanding and cooperation between the
community and the local authority.
4.2 Inter-Ministerial Coordination
• MLR drafted the Act, but local authorities accountable
to the Ministry of Regional and Local Government and
Housing and Rural Development (MRLGHRD), will be
responsible for implementing the Act.
• The crucial issue of how the Ministries will coordinate
their efforts in implementing the Act still unknown. For
this both Ministries must coordinate their efforts and
jointly implement the Act, rather than the MRLGHRD
attempting to do this alone. Without a joint ministerial
effort, the speedy implementation of Act is likely to be
even further delayed.
4.3 Implementing the Act
• Concern about abilities of authorities to implement the Act.
• Act creates a parallel registration infrastructure, which will include
new institutions and organizations that have to be developed,
implemented, funded, administrated and staff that needs
appointed and trained.
• In addition, the creation of new offices, officers, registers,
regulations, hardware and software will be complex and expensive
to implement.
• Cost recovery unclear, i.e. first round studies suggest formalizing an
informal settlement from starter title to freehold title, the current
estimated cost is likely to be double, resulting in the slowing down
of land delivery to the poor.
• Addressing lack of technical capacity-building issues, government
likely to rely on private short- and long-term experts
5. Conclusions
• With the introduction of FLTS in the 1990s, expectations
were raised of improving the overall living conditions of
Namibia’s urban poor, but several obstacles still exist;
• firstly, lack of technical skills; and
• secondly, lack of investment.
• Once communities are more independent from donor and
government support and reinvestments from communities
themselves pay off, the system might be able to cover some
of its own costs.
• The immediate challenge is to speed up the full
implementation of the Act so as to match the hopes and
aspirations of the thousands of poor families living in
informal settlements.