In a pioneering case, the indigenous Hai//om are suing the Namibian government to have their ancestral land rights recognised
By Kim Harrisberg
TSUMEB, Namibia, April 13 (Thomson Reuters Foundation) - Clouds of dust, barking dogs, bow and arrows snapped and thrown into a raging fire.
These are the earliest memories that 73-year-old Jan Tsumib has of being uprooted from what is now the Etosha National Park in Namibia by the apartheid-style government in the 1950s, which was under South African administration.
Now Tsumib, an elder of the indigenous Hai//om people - a minority group of about 18,000 people - is one of eight applicants in a pioneering court case that could see them granted the right to own land in Etosha and have a say in the park's management.
About 3,000 Hai//om, considered some of the original inhabitants of southern Africa, have given signed support of the legal battle to have their ancestral land rights recognised, and compensated for their past displacement.
"We are a landless people," said Tsumib, sitting on a chair outside his home in the rural Ondera settlement, some 30km (19 miles) east of Etosha.
Like Tsumib, thousands of Hai//om have been resettled several times since they were made to leave Etosha, according to legal documents seen by the Thomson Reuters Foundation.
"The wind just blows our voices away, no one hears it," he lamented, adjusting his cap as dusk fell and children's laughter was heard alongside the bleating goats.
This is the first time in Namibia that an indigenous group has taken on the government through a representative class-action lawsuit, according to legal experts.
In other parts of the world, land is often at the centre of court battles between governments and displaced indigenous groups, from the Meriam people of Australia to the Amazon and the Andes in Peru, with varying results.
According to the United Nations, indigenous lands make up about 20% of the earth's landscape, and host 80% of the world's biodiversity.
International legal frameworks such as the United Nations Declaration on the Rights of Indigenous Peoples back up the collective rights of indigenous people, but the battle for land ownership can be decades long.
"We value indigenous communities in Namibia," said Colgar Sikopo, head of the government's Wildlife and National Parks directorate.
"We are in the process of granting tourism rights to the Hai//om so that they can benefit financially from the park in some way," he said in a phone interview.
But the government is not supportive of labelling the park as anyone's ancestral land, he added. "If we do this, then everyone else will want to claim a part of the park," he said.
The expulsion of the Hai//om from Etosha took place over many decades, but research in the Nomadic Peoples academic journal shows that by 1982 most had moved, some by choice and others by force, to farms east and south of the park.
"If we had land, or were compensated for our ancestral land, we would be free. We would own something, take loans, build and farm," said Tsumib, as his grandchildren gathered around him.
"My last breath will be used fighting for this case."
According to the motion filed by the Legal Assistance Centre, the legal aid charity in Windhoek representing the applicants, the Hai//om have lived in northern and central Namibia "since time immemorial".
"I have memories of hunting jackals, swimming in water sources, foraging for wild berries and ground nuts, eating sweet tree gum. I miss those things," said Tsumib, warming his hands around a fire.
Etosha was classified as a national park in 1907 under German colonisation, with the Hai//om granted rights to live in the park, visit their ancestors' graves and hold rituals.
The park's estimated 20,000 sq km (7,722 sq miles) is rich in wildlife, drawing tourists from around the world.
About 50 Hai//om were employed in the park as domestic workers, game scouts and road crew members, according to research in the Nomadic Peoples journal.
Others settled around tourist areas performing dances or selling crafts to visitors.
Namibia was later colonised by the South African apartheid government in 1919.
Then, in 1954, all members of the Hai//om who were living in the reserve - apart from a dozen families working in the park - were instructed to leave, receiving no compensation, according to legal documents.
Nicodemus Hawaseb, a former teacher and one of the main applicants, estimates there are a few hundred Hai//om still living and working in the park.
Peter Watson, a legal consultant on the case, said the Legal Assistance Centre was contacted in 2007 by Hai//om elders when those living in an informal settlement inside the park were told to leave by government.
"They did not end up being evicted, but it started the beginning of our case. It took us more than 10 years to organise meetings, gather testimonies and formulate an argument," said Watson, pointing to a legal file thick with papers.
If the class action is accepted, then remedies - such as land or financial compensation - will be discussed, said Watson.
The Hai//om say they are in favour of the park's existence, but want to be allowed a share in its profits and the right to determine the use of land.
The lawsuit was meant to be the first step in getting the government to acknowledge that Etosha was Hai//om ancestral land and for the group to be included in the decision making and financial gains the park brings to the country's economy.
But in November 2019, after multiple delays, the court dismissed the case when the Hai//om chief, David //Khamuxab, filed his own affidavit stating that the applicants did not represent the whole group.
Any lawsuit should be headed by him as the community's leader, he said.
"We agree that we deserve rights to our ancestral land," said //Khamuxab, dressed in a grey suit and brown leather hat as he sat in a restaurant in Outjo, some 316km (196 miles) north of Windhoek, alongside seven of his council members.
"What I disagree with is that they are using the community as head of the argument, not me,"
Tsumib and Watson said the chief was originally in support of the case with the eight applicants representing the community.
As the Legal Assistance Centre awaits an appeal date, Watson said he and his team are prepared to take the case to the African Court on Human and Peoples' Rights in Tanzania, established in 2004 to protect human rights on the continent.
"This is a slow process," Watson said. "But where there is a right, there is a way."
Hawaseb, the former teacher, is determined to stick with the case.
"We don't only want to be seen as 'marginalised people', we want to be seen as humans. We want to be asked what we want, not to have ideas thrown at us by others," he said.
"If we win this case, we do not want to get rid of Etosha, we just want to be included in it. We want to showcase our culture to the world."
(Reporting by Kim Harrisberg @KimHarrisberg, editing by Jumana Farouky and Zoe Tabary. Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers the lives of people around the world who struggle to live freely or fairly. Visit http://news.trust.org)
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