1.       When this August House adjourned during April 2003, the motion under discussion was the ratification of the Reciprocal Investment Promotion and Protection Agreements between the Republic of Namibia and the Republics of Cuba, Finland,  the Kingdom of Netherlands and the Kingdom of Spain.

2.       I listened very carefully to the introduction speech of the Honourable Deputy Minister of Trade and Industry, Honourable Bernard Esau.  It tempted and provoked me to look at the wording of the agreements again.  That not only has as a result a lot of questions but also the fact that I suddenly recognised that this was perhaps one of the more important speeches, [in this august House since independence] about economic and financial investments and involvement, My main and dominant conclusion was that there is no sense in reaching new agreements if there is no proof that old agreements are honoured. Let me try and explain my way of thinking.

3.          Agreements between states are something different than agreements between persons and parties.  At least every new government is inheriting agreements and laws of a previous government.  It should only be changed by way of new agreements and laws in a legal and trustworthy way.  That is for example why it is said, by way of joking, that President Robert Mugabe,  is still in some cases making use of former President Ian Smith’s suppressing legislation.  He has not yet changed the legislation, because it suits him.

4.       In the case of interstate or international agreements, change by mutual agreement,  is even more important, otherwise a new government may lose the trust of the international (now a days, global) community and will have no integrity in any attempt to reach new agreements.  Even more so in the case of Namibia that has it stipulated in its constitution and more in particular Art. 140 and Art. 144.

          “Art. 140(1)          Subject to the provisions of this Constitution, all laws which were in force immediately before the date of independence shall remain in force until repealed or amended by Act of Parliament or until they are declared unconstitutional by a competent Court.

          Art. 144          Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.”

5.       Let us now look at a few questions about which I am seeking clarity, arising from both the introductory speech of the Honourable Deputy Minister as well as the agreements.  Because the contents in connection with all four agreements are basically the same I am only looking at the wording of the agreement with the Republic of Cuba.

          Question no. 1

          Visits to and discussions were with five and not only four countries, but apparently no agreement was simultaneously  reached  with Austria.  My question is why not?  In the meantime I took note that it was done in Windhoek during the last week of May 2003.

          Question no. 2

          In Art. 1(1) of the agreement with Cuba the words “laws or regulations of the latter” are used.  It reads as follows,

          “For the purposes of this Agreement:

          1.          ‘Investment’ means every kind of asset invested in regard to economic activities

by an investor of either Contracting Party in the territory of the other Contracting Party pursuant to the laws and regulations of the latter, and in particular, though not exclusively, includes:

1.(a)   movable and immovable property, as well as any other rights in rem such as mortgages, liens, pledges and any other similar rights;

(b)             shares in and stock and debentures of a company and any other form of participation in a company;

(c)              …

(d)             ….

(e)              Rights or permits conferred by law or under contract, including concessions to search for, cultivate, extract or exploit natural resources;”

The Honourable Deputy Minister in his speech (p.3) then made the following statement:

“However, for success of this process of trade and investment attraction, it is critical

that the appropriate policy and legal framework should be in place.  Without exception

investors are comfortable with relevant legislation and agreements, which do not only

safeguard their business interest but also facilitate the free flow of goods and services

between their countries of origin and host countries.”

My question is whether the expression “relevant legislation” means the legislation in force when the agreement was concluded, or whether it will also include unilateral changes in future?

Question no. 3

My third question, still in connection with Art. 1 of the agreement is whether the reference in Art. 1(a) to “movable and immovable property, as well as any other rights in rem such as mortgages, liens, pledges and any other similar rights” also includes property rights on agricultural land and communal land and if not why not?  If so, will for example land tax also be applicable to them?

Question no. 4

Art. 2 and more in particular paragraph 2 of the agreement with Cuba reads:

“Investment by investors of a Contracting Party shall, at all times, be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party.”

Notwithstanding the assurances of the Honourable Deputy Minister in his speech (p.4) my question is, why not all of the national priorities and interests such as the affirmative action policy, economic empowerment, the drive towards value addition, environmental, protection and judicious utilization of Namibia’s national resources have  been incorporated more specifically in the agreements?  Why did the Honourable Deputy Minister only referred to “most” and not “all”.

Question no. 5

Art. 3 is about “National and Most favoured Nation Treatment”.  My question is whether this is not creating the possibility especially, through regulations according to the Foreign Investments Act 27 of 1990, that the international contracting parties, will be or may be better off than local investors?

6.       What am I aiming at?  I am very unhappy because I get the feeling that the government of Namibia is not consistent; is in particular not consistent when they are bargaining for investments of foreign states in comparison with the approach and treatment of their own citizens more in particular those who are revered to as “advantaged”.  In the process they are not honouring agreements; agreements with exactly, in many cases, the same states or international community.  The hard fact is that if they are not going to honour agreements of the past, what guarantee is there that they will honour agreements of the present like these that we are now being asked to ratify.

7.       A hard fact is that Namibia, although it could be seen as a de facto colony, always, according to League of Nations, the United Nations and its judicial instruments, was a de jure mandated territory with a international character based on specific international agreements.  That is the most important reason why, according to its own recognition the United Nations helped the inhabitants of Namibia to achieve self-determination and independence.

8.       Art. 22 para. 5 of the Covenant of the League of Nations inter alia stipulated that the Mandatory would guarantee freedom of conscience and religion and secure equal opportunities for the trade and commerce of other members of the League.  Naturally it would also include the Mandatory, in our case South Africa, itself.

9.          Needless to say that it should have happened by way of agreement with the mandatory power and the consent of the organised international institutions and opinion.  Also needless to say that with minor exceptions no other country except South Africa ever rushed to help financially or to invest on a big scale in the former S.W.A. to help and develop the country and its inhabitants.

10.     It was for that reason that during the first ten years and more, of the mandate period, South Africa, as the Mandatory power, informed the League of Nations that they are going to encourage experienced farmers to invest and settled in the former South West Africa.  Believe it or not, and the documentary proof is there, the reasons they advanced were for all practical purposes exactly the same as that mentioned by the Honourable Deputy Minister, Hon. Esau in his motivation now.  To quote the Honourable Deputy Minister, “The total sum of these strategies is the creation of employment in Namibia, poverty alleviation and the generation of foreign currency, to create a wealthy and prosperous Namibian nation.”

11.     Let me just interrupt myself at this stage, to remind Honourable Members that my late father and others were accused inter alia in this august House of being criminals because they bought alleged “stolen” land.

12.     But let me make it categorically clear that my father and others sold everything they possessed in the Union of South Africa and bought agricultural land at market price in Namibia with their own money without a single penny of help from anybody or any government.  They made this investment on the basis of what we may call a “Reciprocal Investment Promotion Agreement”, and that is exactly what we are now begin asked to ratify in connection with other advanced investors.

13.          Notwithstanding the severe drought and depression of those years they, the farmers, got the green light, the guarantee of the international community in 1931 to go ahead with their investments in the former S.W.A..

14.     In 1931, the Council of the League of Nations on the advise of the Permanent Mandates Commission laid down inter alia, without being complete in my quotations, the following guidelines as pre-requisites for the emancipation of any mandated territory including “C” mandates and therefore also including the former South West Africa.  I am quoting from the minutes of the League of Nations, 31 November 1931, pages 2057 and 2058:

“………that the guarantees to be furnished by the new State before the mandate can be brought to an end should take the form of a declaration binding the new Sate to the League of Nations, or of a treaty or a convention or of some instrument formally accepted by the Council of the League as equivalent to such an undertaking.”

“…….that, without prejudice to any supplementary guarantees which might be justified by the special circumstances of certain territories or their recent history, the undertaking of the new State should ensure and guarantee:

(a)              The effective protection of racial, linguistic and religious minorities;

(b)             The privileges and immunities of foreigners (in the Near-Eastern territories), including consular jurisdiction and protection as formerly practised in the Ottoman Empire in virtue of the capitulations and usages, unless any other arrangement on this subject has been previously approved by the Council of the League of Nations in concert with the Powers concerned;

(c)              The interest of foreigners in judicial, civil and criminal cases, in so far as these interests are not guaranteed by the capitulations;

(d)             Freedom of conscience and public worship and the free exercise of the religious, educational and medical activities of religious missions of all denominations, subject to such measures as may be indispensable for the maintenance of public order, morality and effective administration;

“(e)          The financial obligations regularly assumed by the former mandatory Power;

“(f)          Rights of every kind legally acquired under the mandate regime;

“(g)    The maintenance in force for their respective duration and subject to the right of the denunciation by the parties concerned of the international conventions, both general and special, to which, during the mandate, the mandatory Power acceded on behalf of the mandatory territory.”

“……..that it would be desirable that the new State, if hitherto subject to the economic equality clause, should consent to secure to all States Members of the League of Nations the most-favoured-nation treatment as a transitory measure on condition of reciprocity.”

15.     In 1989 when the Constituent Assembly of Namibia had to decide upon their point of departure in writing a new constitution,  it was unanimously decided to use the so-called 1982 principles as a definite “framework” or guideline.   These principles were a joint agreement between the Western Five, SWAPO and South Africa.

          These principles eventually materialized mainly in Art. 16, 98, 99, 100 and 101 of the Constitution of Namibia.  It was also not only a clear confirmation of the conditions by the League of Nations for mandates to become independent, but also in line with SWAPO’s own proposed wording for a constitution.

16.     It also did not escape my attention that the agreements reached between our Cabinet and the governments of Cuba, Finland, Netherlands and Spain are even more generous, comprehensive and detailed as the treatment meted out to certain sections of Namibia’s own citizens, including their treatment of so-called “immaterial property”.

17.     Just in passing.  The Honourable Deputy Minister of Environment and Tourism, Honourable P. Iilonga, in particular, at several occasion in the past, campaigned in this August House for the far-reaching change of the principle of Art. 100 of Namibia’s Constitution, that is about “Sovereign Ownership of natural Resources”.  Not at a single occasion was he ruled out of order, reprimanded, or contradicted.

          I am wondering whether the Government of Cuba, Finland, Netherlands and Spain are aware of this?  During its last meeting in April 2003 it was, however said in this August House by the Honourable Minister of Lands, Resettlement and Rehabilitation, Honourable Pohamba that “land is the most important resource of Namibia”.  In other words the agreements before us are also mainly about the most “important resource” in Namibia and that is agricultural land.

18.     It is often said that the intention of the lawmaker is playing a big role in the interpretation of laws.

          So let me put it above all doubt that when the Sub-Committee, which compiled the wording of the Namibian Constitution, discussed the whole question of expropriation of property, whether it would be the property of their own citizens or investors from abroad and for that matter including Cuba, Finland, Netherlands and Spain, it was decided by consensus that that expropriation of property should be connected to “market” value.

I am challenging anybody to prove me wrong!

19.     In effect that means that if my father had bought a farm in the former S.W.A. at market price with his own money, I as his heir-in-law, have according to every condition of the League of Nations, The United Nations, The Constitution of Namibia and all concerned inter national agreements the fullest right to sell my property at market price.

20.     Just in passing, but also a very important example and lesson.  After the Zimbabwe government had chased away thousands of white farmers from their farms, they have now also as a result of a, let we call it, a “reciprocal protection investment agreement”, awarded a tender to a state-supported Chinese company, “China International Water + Electric Corporation” to develop approximately 100 000 hectare undeveloped land in Zimbabwe to try and improve food production.

21.     When I first learned about it, another question was provoked.  I was now uncertain about what is paramount to Namibia’s government.  Is it landownership, land development, investment or production?  Yes, I am now even doubting whether Namibia’s government’s land policy is not in contradiction with the agreements that the Trade and Industry Ministry wants us to ratify?

22.     To conclude.  After 13 years of independence and reconciliation, it is a sad and a heart-sore story to me to listen to unchecked propaganda about “stolen land”, about alleged “inflated prices”, about unqualified accusations of “not proving my willingness to reconcile by giving away my property”, or “some of my property”, ect. ect. According to Namibia’s Constitution the State should in the first place secure to its own citizens justice, liberty, equality and fraternity, instead of giving only foreigners that advantage.

          As a born and loyal Namibian citizen I cannot see my way open to ratify the various investment promotion and protection agreements with Cuba, Finland, the Netherlands and Spain without the assurance that my investments as a citizen, will at least be dealt with in the same way and in the same spirit as those of foreigners.  While I have done everything according to law, in line with international agreements and with the consent of international institutions, there is no logic for me in being called a “criminal” because I allegedly bought “stolen property” ,  only for this August House to continue and immediately thereafter to invite foreigners to do exactly the same but covered by a Promotion and Reciprocal Protection Investment agreement.

23.          Furthermore, the Secretary-General of SWAPO, Minister dr. Tjiriange recently said that although Namibia is “positively disposed” to Nepad, it would not accept any foreign imposition from outsiders.  My question is whether this is not in contradiction with what we are now being asked to ratify?

24.     If I can get the assurance from the Honourable Deputy Minister of Trade and Industry that I, as a born and bred Namibian will not be treated worst than foreigners, who are even sometimes called neo-colonialists, I shall support and ratify the agreements.  Otherwise I do not see my way open.

 

 

 

* * * * *