IN THE HIGH COURT OF NAMIBIA

(Main Division)

CASE NO: A206/15

In the matter between:

JAN TSUMIB 1st Applicant

MANNET JIE GABISEB 2nd Applicant

BANDU KOMOB 3rd Applicant

DAWID WILLEM 4th Applicant

ANNA AIS 5th Applicant

ELIAS !AOKOEOB GUXAB 6thApplicant

ALEXANDER ARAEB 7th Applicant

NIKODEMUS HABUE HAWASEB 8th Applicant

And

THE GOVERNMENT OF THE REPUBLIC 1st Respondent

OF NAMIBIA

NAMIBIA WILDLIFE RESORTS LTD 2nd Respondent

HAIIIOM TRADITIONAL AUTHORITY 3rd Respondent

NAMIBIA DEVELOPMENT CORPORATION 4th Respondent

IGOABAUB HAIIIOM ASSOCIATION 5th Respondent

NAMIBIA POWER CORPORATION (PTY) LTD 6th Respondent

WEXFORD INVESTMENTS (PTY) LTD 7th Respondent

JOACHIM LENSSEN 8th Respondent

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NAMIBIA HD MINING AND INVESTMENT (PTY) LTD 9th Respondent

ANDREAS TUTA RUNONE 10th Respondent

NAMIBIA WATER CORPORATION LIMITED 11th Respondent

EHIROVIPUKA CONSERVANCY 12th Respondent

SHEYA SHUUSONA CONSERVANCY 13th Respondent

KING NEHALE CONSERVANCY 14th Respondent

EXPERT AFFIDAVIT
___________________________________________________________________

I, the undersigned
S. JAMES ANAYA

hereby make oath and state as follows:

1. I served as the United Nations (UN) Special Rapporteur on the rights of

indigenous peoples from 2008 until 2014. I am currently the Dean of the

University of Colorado Law School and the Charles Inglis Thomson Professor

at the same universityfaculty.

2. The facts deposed to in this affidavit are within my personal knowledge and are
true and correct.
3. I completed a Bachelor of Arts in Economics from the University of New Mexico
in 1980 and a Juris Doctor from Harvard Law School, Cambridge,
Massachusetts in 1983. A comprehensive summary of my qualifications and
various positions held over the span of my career can be found in my
Curriculum Vitae attached hereto, marked SJA1.

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4. I have published widely on the rights of indigenous peoples and have been
involved in legal advocacy on behalf of indigenous peoples from North, Central
and South America as legal counsel.
5. From 2008 to 2014 I was appointed by the United Nations Human Rights
Council to work as its Special Rapporteur for the United Nations on Rights of
Indigenous Peoples. In the role of Special Rapporteur, my duties involved
examining and reporting on conditions of indigenous peoples worldwide and
responding to allegations of human rights violations against them, including
through country visits and direct contacts with the different governments.
Accordingly, I wrote numerous reports on the rights of indigenous peoples,
including reports on country situations, specific cases of alleged human rights
abuse, and crosscutting issues of concern to indigenous peoples.1
6. In 2012, at the invitation of the Government, I visited the Republic of Namibia
in my capacity as Special Rapporteur, in order to conduct research and
examine the human rights situation of indigenous peoples in the country. In that
capacity, I became familiar with the Hai||om people and their struggles for
recognition of their rights to their ancestral land in the Etosha National Park.
7. While conducting my investigations in the capital city of Windhoek in 2012, I
met with various Government representatives, including the Prime Minister, the
office of the Prime Minister and its Division of San Ddevelopment; the Ministry
of Environment and Tourism; the Ministry of Justice; the Ministry of Lands and
Resettlement; and the Ministry of Education. In addition, I conducted field visits
to various parts of Namibia and met with representatives of a number of
indigenous peoples, including the Hai||om San living in and around the Etosha
National Park. The report that I produced and submitted to the UN Human
Rights Council on 25 April 2013 following that visit and dated 25 April 2013 is
attached marked SJA2.

The present matter

1 The various reports are available at: http://unsr.jamesanaya.org/.

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8. The Applicants in this matter have asked me to comment on some of the
allegations that they have made and that have been disputed by one or more
of the RespondantsRespondents. I do so in my capacity as an expert on
indigenous rights generally and based on my knowledge of the Hai||om’s
circumstances as set out in my 2013 report.
9. I am advised that in paragraph 88 of her answering affidavit the Prime Minister
denies that there is any merit in any of the claims the Hai||om people seek to
prosecute. These include claims based on infringements of constitutional
rights, the common law and international law (the latter incorporating claims to
the Etosha National Park based on cultural and religious rights and the rights
to natural resources and development in terms of the African Charter on Human
and People’s Rrights). In addition, in paragraph 89.2 of her affidavit the Prime
Minister contends that “there is a lack of cohesive community identity and
insufficient commonality, solidarity and continuity among Hai||om people in their
affiliation to the subject land and traditional culture” for them to be regarded as
an “indigenous people” or a “minority group” under international law. In a
related argument, the Prime Minister argues that membership of the Hai||om
cannot be objectively established and that this is an obstacle to their recognition
as an indigenous people or a minority group under international law.

Findings in the 2013 report

10. The report that I submitted to the UN in 2013 subsequent to my visit to Namibia
in my capacity as UN Special Rapporteur included the following conclusions
relevant to the Prime Minister’s objections to the Hai||om people’s claims:
a. Indigenous peoples in Namibia have suffered injustices in the past which
leave them disadvantaged, to varying degrees, in the present. While the
Namibian Government had made significant progress since 1990 in rolling
back some of the destructive legacies left by colonialism and apartheid,
certain indigenous peoples, including the San in particular , which include
and the Hai//om in particular, are disadvantaged relative to other groups in
the country and have not seen the promises and benefits brought by the
independence of the country fulfilled for them.

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 b. While the Government has entered into some innovative arrangements with
the San to increase their control over management of lands and natural
resources, much more needs to be done to recognise and respect the rights
of marginalised indigenous peoples over their traditional lands and
resources, and to provide redress for any land that has been confiscated,
taken, occupied, used or damaged without their free, prior and informed
consent.
c. In particular, I found that the Government should give high priority to
purchasing adequate resettlement lands for the Hai//om people living in
Oshivelo and other similarly situated San groups who had been removed
from the Etosha National Park and recommended that the Government
should make all efforts to accommodate the Oshivelo community’s desire to
have access to lands in Etosha National Park for tourism purposes and also
receive lands adjacent to the park suitable for agricultural and other
economic activities. I called for the increased involvement of San people in
the management of park lands and for the Government to minimise any
restrictions that prohibit the San from carrying out traditional subsistence
and cultural activities within these parks (including the Etosha National
Park).
11. I stated in my report that the Hai||om representatives expressed to me their
feeling that the Government is trying to “erase” the Hai||om connection with the
park. In this regard I noted that their concerns appeared to havebe some merit
and, at the very least, there is no official policy or activities to reflect the Hai||om
connection to Etosha or to strengthen that connection.
12. Whilst at the park I discovered that the Government was encouraging San
people living adjacent to the park to move the resettlement farms which they
had purchased. Representatives of the Ministry of Environment and Tourism
informed me that the reason for moving the community is because they make
too much noise, especially wailing during funerals, which according to the
Government, disturbs tourists and wild animals. This was clearly an inadequate
justification for removals from a human rights perspective.

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13. Finally, I noted that the majority of employees in Etosha National Park are not
Hai//om, there is no hiring preference for Hai//om people2 and there is a lack of
Hai//om input into decision making at all levels of the park management. During
a meeting then held between myself, Hai//om representatives and the Ministry
of Environment and Tourism, a proposal was made for the establishment of a
Hai//om advisory body in relation to the Etosha National Park and there seemed
to be a willingness from the Government to consider the proposal. As far as I
have been informed, this did not materialise.
Indigenous people or minority group

14. The Government’s claim that there is insufficient cohesiveness among the Hai||om
people for them to be regarded as an indigenous people or a minority group under
international law is mistaken. The Hai||om are plainly an indigenous people and a
minority group. They share the characteristics of cultural differentiation, attachment
to traditional or ancestral land, and non-dominance vis-a vis the majority that are
common to others considered to be an indigenous people and/or minority within
the contemporary system of international human rights law and institutions. The
standard that the Prime Minister seeks to apply is overly restrictive and has no
basis in international law. It is not a requirement of international law that the
membership of a group must be capable of precise, objective determination. Nor
is it a requirement that each member of the group must wish to live on ancestral
land in accordance with the group’s traditional practices.

______________________
PROF. S. JAMES ANAYA

I certify that the contents of this declaration were explained to the deponent and he
acknowledged that he understood its contents and that I duly administered the oath

2I am advised that the Prime Minister states in her answering affidavit in this matter claims that
preference is given to the employment of members of the Hai//om community living in the park.

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as prescribed by Regulation No R.1258 of July 1972, and thereafter the deponent
in my presence signed the declaration at (place) on this the ___ DAY of October
2016.

________________________
COMMISSIONER OF OATHS