Biodiversity in Southern Africa

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Biodiversity is important for sustaining life on Earth yet it is threatened globally. The BIOTA Southern Africa project analysed the causes, trends, and processes of change in biodiversity in Namibia and western South Africa over nearly a full decade, from 2001 until 2010. This book, which is comprised of three volumes, offers a summary of the results 9 7 8 from 3 9 3 3the 1 91 many 77 84 35 98 3and 3 1 diverse 17458

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subprojects during this first period of long-term observation and related research, at both local and regional scales, and with a focus on sustainable land management options for the region.

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2 Patterns and Processes at Regional Scale KLAUS HESS PUBLISHERS

ISBN-Namibia

Biodiversity in Southern Africa

Namibia ISBN Namibia ISBN

Biodiversity in Southern Africa Vol. 2

Patterns and Processes at Regional Scale

© University of Hamburg 2010 All rights reserved Klaus Hess Publishers www.k-hess-verlag.de

ISBN all volumes: 978-3-933117-44-1 (Germany), 978-99916-57-30-1 (Namibia) ISBN this volume: 978-3-933117-46-5 (Germany), 978-99916-57-32-5 (Namibia) Printed in Germany

Suggestion for citations: Volume: Schmiedel, U., Jürgens, N. (2010) (eds.): Biodiversity in southern Africa 2: Patterns and processes at regional scale. Göttingen & Windhoek: Klaus Hess Publishers. Article (example): Petersen, A., Gröngröft, A., Mills, A., Miehlich, G. (2010): Soils along the BIOTA transect. – In: Schmiedel, U., Jürgens, N. (eds.): Biodiversity in southern Africa 2: Patterns and processes at regional scale: 84–92. Göttingen & Windhoek: Klaus Hess Publishers. Corrections brought to our attention will be published at the following location: http://www.biota-africa.org/biotabook/

Cover photograph: Giraffes on the game farm Omatako Ranch (Observatory S04 Toggekry) in the Namibian Thornbush Savanna. Photo: Jürgen Deckert, Berlin/Germany. Cover Design: Ria Henning

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Article III.5.2 – Author’s copy – Please cite this article as follows: Hinz, M. O., Mapaure, C. (2010): Traditional and modern use of biodiversity – customary law and its potential to protect biodiversity. – In: Schmiedel, U., Jürgens, N. [Eds.]: Biodiversity in southern Africa. Volume 2: Patterns and processes at regional scale: pp. 195–199, Klaus Hess Publishers, Göttingen & Windhoek.

MANFRED O. HINZ* & CLEVER MAPAURE

Summary: This article presents an evaluation of legal anthropological research focusing on the interface between statutory and customary law. Customary law is the law owned by the people and therefore holds great potential for the protection and conservation of biodiversity. However, although relevant statutory enactments are necessary to complement customary law, they have failed in many instances to recognise customary law in a way that would allow it to perform to its full potential in protecting and conserving biodiversity. There is a challenge to consider amendments to existing statutory enactments as a component of legal reform. There is also a need for training programmes to build capacity amongst biodiversity policy-makers and legislators who often have a weak understanding of customary law.

Introduction The environment and human beings are closely linked in traditional communities. While customary law generally reflects this holistic approach to the environment, the majority of the laws made by the state do not, resulting in conflict between customary law and the laws of the state (see Article III.5.1). Research conducted by BIOTA Southern Africa has shown that navigating the interface between traditional and statutory biodiversity conservation requires an understanding of the concept of legal pluralism. Hinz & Ruppel (2008) gave an account of the research done at the Faculty of Law at the University of Namibia within the ambit of the BIOTA project. This article takes note of the conclusions drawn by Hinz & Ruppel but concentrates on research conducted thereafter. The research has shown that African customary law has the potential to influence policies, which would improve conservation and the protection of biodiversity.

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African tradition, law, and biodiversity conservation The research on traditional communities in Namibia has shown that traditional societies have their own unique visions for the use of natural resources. These often differ from the generally held vision of biodiversity that developed under the auspices of European biological philosophy and which has found its way into the national legislation of many African states. Before describing our recent findings from the BIOTA project, it is important to note that most African countries have established a legislative system governing the various branches of industry, including biodiversity conservation. Namibia has enacted several pieces of legislation concerning the conservation and utilisation of biodiversity, including the constitution itself. These state laws stipulate that the state is the owner of all natural resources in Namibia. However in reality, these laws remain merely a claim, as a real juridicial prerogative would not be accepted without great resistance from the users of natural resources under customary law.

Therefore, what effectively characterises Namibian natural resource laws, like elsewhere in Africa, is the existence, parallel to written laws, of a body of customary laws and ethical commands, which originated largely in pre-colonial times. In a country where the majority of the population is living under the guidance of customary laws, official written legislation tends to be overridden by customary laws with regards to the exploitation of the natural resources by the local inhabitants. Research in traditional communities of Namibia has shown that the laws of the state will not achieve the objectives of biodiversity conservation without the involvement of those who are in charge of the traditional laws. Namibian traditional authorities and members of the traditional communities act as the intermediaries between the largely rural population and the central state administration. Connected to this and in the light of the views of traditional authorities in Namibia, nobody with the ambition of creating acceptable juridicial norms can ignore the essential contribution of customary law to biodiversity conservation and utilisation. If law disregards them, then such law is bound to be rejected. Any government programme based on such state law is bound to encounter many setbacks in its implementation at the traditional community level.

Biodiversity conservation and traditional norms: the Namibian experience Several dissertations and theses have been produced in the context of the BIOTA project in the Faculty of Law at the University of Namibia. This research has generally focused on the exploration of the interface between customary law 195

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Traditional and modern use of biodiversity— customary law and its potential to protect biodiversity

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economies ethnology botany law others

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Fig. 1: Simplified model of traditional forestry. Source: Mapaure (2008) as adapted from Domptail & Hecht (presentation at the BIOTA congress, Würzburg, 2005).

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Fig. 2: Simplified model of forestry framework under legislation. Source: Mapaure (2008).

and state laws with regard to the conservation of biodiversity (for more detailed explanations of previous research, see Hinz 2008). In doing so, the research has paid special attention to the shortcomings and limitations of both customary and statutory law. The orientation and 196

some of the results of the research are summarised below. Research conducted by Clever Mapaure on community forests in the Kavango Region showed that there is a discrepancy between state laws and customary laws regarding the ownership of

forest resources (Mapaure 2008). Whereas state laws stipulate that all natural resources belong to the state, local communities regard themselves as the owners of the natural resources surrounding them. The perception and position of the community that they own the trees on communal land emanates from the concept of aboriginal title to land, which is an ancient right held by the pre-colonial occupants of land. Because this title predates and supersedes any right granted under colonial or current state laws, it poses an obvious threat to the success of state conservation laws and policies being implemented in these communities. This is a clear case of the internal conflict of laws. This internal conflict of laws places biodiversity conservation at a crossroads particularly in terms of natural resource utilisation. For example, the state classifies the harvesting of trees by local communities as ‘illegal logging’ whereas communities believe they are acting ‘legally’ under their customary laws and traditional beliefs and that they are utilising their ‘god given’ resource (see also Hinz 1998). Fig. 1 shows a simplified model of traditional forestry. Under customary forestry laws, the major stakeholders are the communities. Decisions regarding the utilisation of trees are made at the traditional level and customary law is the supreme law. These decisions affect landuse systems, which in turn has an impact on biodiversity in general, and in particular on the quantity and quality of the elements of biodiversity regulated by such laws. This is a learning process, which produces traditional knowledge necessary for further planning and hence feedback. This is a simplified summary of the concept of traditional forestry adapted from Domptail & Hecht’s (2005) ideas. The idea of traditional forestry is reflected in the Forest Act of 2001 but there are certain elements alien to traditional forest management introduced by the Forest Act. These include state enforcement institutions including the Directorate of Forestry and the national police force, which fall outside of the traditional forest management system (Ensminger 1996:194). The approach of the government is summarised in the simple diagram

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in Fig. 2. This diagram indicates that the concept of forestry under the Forest Act is centered around natural resource management and community development. Subsequent research conducted by Mapaure (2010) in the Kavango, Otjozondjupa and Ohangwena Regions of Namibia demonstrated that communities also regard themselves as the owners of water, which is contrary to the position of government officials who say that water is owned and administered by the state for the benefit of the traditional communities who have user rights only. The position of government officials is based on the Constitution and the Water Act, No. 54 of 1956. This act provides for water to be owned privately or publicly and takes a monistic position that all water in the republic should be utilised in terms of the Act itself. Although this is the position of the statute, communities apply both customary laws and the Act in the conservation and utilisation of water. This dualism, which has caused differences in perceptions has resulted in conflicting institutional relations regarding water management and utilisation and proves that the plurality, or at least the duality of legal systems, is a reality, which needs to be recognised and dealt with in regard to the management of natural resources. Research conducted by Emilia Namwoonde in Kavango around the registration of communal land rights as required by the Communal Land Reform Act, No. 2 of 2002, (cf. Section 25 of the Act) has shown that traditional communities apply both state- and customary laws in the use and allocation of land (Namwoonde 2008). They navigate between the two types of law by limiting the application of either whenever they feel it is appropriate to do so. In this sense, the traditional communities in the Kavango Region have rejected the statutory requirement to register their land because such registration is said to be in conflict with their customary land laws. This is an interesting relationship between the application of customary law and statutory law in land management. It is interesting in the sense that, whereas Article 66 of the Constitution states that statutory law overrides customary law when the two are in con-

Photo 1: A hand dug traditional well in Ohakane Village, Otjozondjupa Region. The community decided to dig for water because of the inconsistent supply of water by the government. Photo: Ndilimeke Amunyela.

flict, according to the traditional communities, customary law takes precedence. In subsequent research in the Caprivi and Kavango Regions, Namwoonde (2010) discovered that the land allocation procedures on communal land found in these regions are twofold. Firstly, there are allocations performed according to the Communal Land Reform Act, and secondly there are allocations performed according to customary law. Although there was an attempt to incorporate customary land law concepts into the Communal Land Reform Act, it became clear from her research that traditional communities preferred to manage communal land under customary land law as opposed to state laws. The contracts signed by traditional authorities when handing over large tracts of land to investors in the biofuel industry have clauses, which are at variance with community land laws. Namwoonde’s research concludes that the current rush to produce biofuel on a large commercial scale on communal land is ill-conceived and under-researched, and could contribute to unsustainable utilisation of natural resources, which will not solve the problems of climate change, poverty, and energy and food security (see similar comments in Hinz 1998). Therefore, questions arise regarding the nature

of the land tenure created when chiefs use their customary law powers to give areas of communal land to investors who then manage the land outside the realm of customary law. Namwoonde concluded that if the community members in Kavango entered into farming contracts with private investment companies, the application of the customary laws of traditional communities would be limited by such contracts and they would not be able to implement or enforce such laws on these companies (Namwoonde 2010). This is because once the contract is signed the companies operate according to the terms of the contract and state laws, both of which do not incorporate customary law. This will have a serious impact on the effectiveness of customary law as a biodiversity protection mechanism. Research conducted by Aubrey Ndlovu in the Kavango region analyses the relevance and contribution of indigenous knowledge systems to the conservation of wildlife (Ndlovu 2009). The research indicates that without indigenous knowledge systems there would not be effective conservation of wildlife, especially in the area of community based natural resource management. Ndlovu discovered that traditional communities used to retain a sufficiently high level 197

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of internal cohesion when it came to the application of traditional knowledge concerning the conservation and utilisation of wildlife. However, this cohesion and systematic use of traditional knowledge were undermined when state or corporate bodies established control over the natural resources (Ndlovu 2009) through law or administrative discretion. This ‘interference’ by the state or corporate bodies led to the gradual wasting away of traditional knowledge and beliefs as instruments of biodiversity conservation and has led to the degradation of natural resources and the disappearance of wildlife around the villages. Nowadays, the people do not hunt anymore, not because their customary laws do not allow them to but because the state prohibits hunting without a license. Because the Nature Conservation Ordinance, No. 4 of 1975 requires anybody who wants to hunt to do so with a licence issued by governmental officials, some traditional knowledge systems, which guided how animal species should be conserved are being eroded. The erosion of traditional hunting knowledge systems has caused traditional communities to change their survival patterns (Hinz 2003). Such shifts in survival patterns highlight the social adaptive capacity of traditional communities (Mapaure 2009). Ndlovu (2009) observed that traditional knowledge systems remain in the memories of the older generation, although they are unable to apply this traditional hunting knowledge due to the conflicts that exist between their traditional knowledge systems and the Nature Conservation Ordinance. In light of the above, many indigenous peoples are seeking new ways of adapting their traditional beliefs to modern realities, often using a combination of animism and formal religion as source of inspiration for their new way of natural resource management. This has been demonstrated by Mapaure (2010) who conducted research on the management and utilisation of water in the Kavango River. Some of the people who live along the Kavango River believe that the way they use the water is closely monitored by a mystical creature called ‘ekongoro’ (a mermaid), which can punish polluters 198

and abusers of the water resource (Mapaure 2010). Because people claim to have seen ‘ekongoro’ and there is a belief that it has drowned people who defecated in the water some residents of Kapako and Sivara villages went to the extent of saying that ‘ekongoro’ owns the water in the Kavango River. Interestingly, they believe that while God (the Christian God) created water, Ekongoro holds more power in controlling its conservation and utilisation. The findings of Ndlovu (2009) were also reflected in the research by Prisca Anyolo who investigated the relationship between customary law and state laws in the conservation of wildlife in the Uukwaluudhi Conservancy (Anyolo 2010). The Namibian government decided to create a platform through which traditional communities could be directly involved in management of their wildlife. This platform included in situ conservation of natural resources through the establishment of communal conservancies. The creation of conservancies was meant to conserve biodiversity as an output with community development as an incentive. With this in mind, the Namibian Parliament passed the Nature Conservation Amendment Act, No. 5 of 1996, which now stands as the main state law concerning the management of biodiversity in conservancies. Although this piece of state law is the main guideline for the management of conservancies, Anyolo (2010) showed that traditional norms of biodiversity conservation play a vital role in the conservation of wildlife in the Uukwaluudhi Conservancy. Even though most of the legal instruments used by the communities are inclined towards the application of state laws only, traditional communities always turned to their customs for controlling the utilisation of natural resources such as game and trees. This reversion to their own customs by applying customary law took place either when there was a loophole in the state law, or when state law was silent, or when traditional authorities invoked their powers under section 3 (2) (c) of the Traditional Authorities Act, No. 25 of 2000. This act stipulates that the Traditional Authority must “ensure that the members of his or

her traditional community use the natural resources at their disposal on a sustainable basis and in a manner that conserves the environment and maintains the ecosystems for the benefit of all persons in Namibia”. Conservancies are largely governed by the statute and other legal instruments required under the Act. In this light, because state law is regarded as superior to customary law and because of the top-down approach in the management of conservancies, some local people have lost their customary rights over the land and it’s wildlife to the conservancy without being compensated. Therefore, Anyolo (2010) concludes that although some customary laws are applied in the management of natural resources in conservancies located on communal land, the Nature Conservation Amendment Act does not offer protection to those traditional community members affected by the change in the land tenure system from communal land to conservancy.

Conclusion: issues for consideration in law reform The general message from the BIOTA research regarding biodiversity legislation in Namibia is that policy and legal approaches that do not involve the traditional community and their customary laws are very likely to fail. All laws that affect biodiversity conservation, especially at the community level, must take customary law and traditional structures into account in order to achieve a sustainable vision for the conservation of biodiversity. The mastery of local knowledge in natural resource management and an understanding of the sources of conflict are necessary for the implementation of sustainable projects, which favour partnerships between traditional and modern biodiversity management. State laws and institutions, on the one hand, and customary law and traditional governance institutions, on the other, are both important for the management of biodiversity. Biodiversity management should not be administered exclusively by the authorities of the state, and neither

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Acknowledgements The authors’ general acknowledgements to the organisations and institutions, which supported this work are provided in Volume 1.

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should it be the sole responsibility of traditional institutions. Cooperation is necessary, but such cooperation is strongly influenced by the way in which biodiversity laws and policies are designed. Emphasis should be placed on the participation of local traditional communities and use should be made of traditional local knowledge. Such measures greatly increase the chances of real success in the implementation of conservation projects. It is important to note that the challenge is not to reproduce old customs, but rather to catch their spirit in order to renew and enhance them and create new collective memories in the field of biodiversity conservation. Knowledge of how property rights regimes function in relation to humans and their use of the environment is critical to the design and implementation of effective environmental protection laws and policies. Government should therefore make balanced decisions, which benefit both the environment and rural communities with regard to poverty alleviation programmes. As long as state laws favour top-down approaches, customary law will not be able to contribute to the conservation of biodiversity to its full potential. The findings of the research confirm that there is a lack of understanding about customary law amongst biodiversity policy-makers and legislators, a weakness, which calls for changes through legal reform, but also through training and a commitment to relevant capacity building.

References Anyolo, P. (2010): An analysis of Uukwaluudhi conservancy: alleviating or advancing poverty? – Degree thesis in Law. Windhoek: University of Namibia. Ensminger, J. (1996): Culture and property rights. – In: Hanna, S.S, Folke, C., Maler, K.G. (eds.) (1996): Rights to nature: ecological, economic, cultural, and political principles of institutions for the environment: 179–204. Washington, D.C.: Island Press. Hinz, M.O. (1998): Communal land, natural resources and traditional authority. – In: D’Engelbronner, M., Hinz, M.O., Sindano, J.L. (eds.): Traditional authority and democracy in southern Africa: 183–188. Windhoek: New Namibia Books. Hinz, M.O. (2003): Without chiefs there will be no game: customary law and nature conservation. – Windhoek: Out of Africa. Hinz, M.O., Ruppel, O.C. (eds.) (2008): Biodiversity and the ancestors: challenges to customary and environmental law. Case studies from Namibia. – Windhoek: Namibia Scientific Society. Mapaure, C. (2008): Biodiversity at crossroads: internal conflict of laws in the conservation of forests in Kavango, Namibia. – Degree thesis in Law. Windhoek: University of Namibia. Mapaure, C. (2009): Jurisprudential aspects of proclaiming towns in communal areas in Namibia. – Namibia Law Journal 1(2): 23–48. Mapaure, C. (2010): “Water Wars”: legal pluralism and hydropolitics in Namibian water law. – Degree thesis in Law. Windhoek: University of Namibia. Namwoonde, E.N. (2008): A rejected import: registration of customary land rights in Kavango. – Degree thesis in Law. Windhoek: University of Namibia. Namwoonde, E.N. (2010): Impacts of biofuels (Jatropha curcas) production on communal land in north-east Namibia. – Degree thesis in Law. Windhoek: University of Namibia. Ndlovu, A. (2009): Traditional knowledge as a tool in the conservation of wild animals in Kavango. – Degree thesis in Law. Windhoek: University of Namibia.

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