Dead or Alive? Human Rights and Land Reform in Namaqualand Commons, South Africa

Abstract

"Land tenure is emerging as a controversial human rights issue in both local resource conflicts and globalised rhetoric. While access to land is not a human right according to international law, many tenets concerning the right to food and a secure livelihood, to redress for past violations, to rule of law, non-discrimination and democracy apply to land governance.

"The relevance of the human rights talk for development is contested. Harri Englunds notion of 'the dead hand of human rights ' refers to the gaps between global and local discourses. Land, particularly the commons, may be a problematic human rights issue because local idioms of ownership are embedded, elusive and flexible, and therefore difficult to codify and protect by national or international regimes. Furthermore, the economic pressures of globalisation may contradict civil-political rights and opportunities, leading Upendra Baxi to discuss whether and how there is a future for human rights.

"Based on fieldwork in two communal areas, the paper examines rights perceptions in a process of reforming communal land governance in Namaqualand, South Africa. In Namaqualand, six former coloured rural reserves make up more than a quarter of the land and is home and partial resource base to a majority of the rural population. The coloured reserves may have been in the shadow of black homelands in terms of public and political attention, but post-apartheid land reform has played a significant role in expanding the commons. More than 275,000 hectares of private farmland have been bought by government and added as 'new commonage', increasing the total communal area by about twenty percent.

"Tenure reform through the Transformation of Certain Rural Areas Act 94 of 1998 (TRANCRAA) is testing the strong land rights manifesto of the South African Constitution (1996): can the New South Africa deliver equitable and secure tenure? TRANCRAA enshrines principles of participation and strengthened local rights, but resource contest, political negotiations and community conflict are delaying and shaping the direction of the implementation. Rights are maintained and changed in specific historically produced constellations of people, power and resources and TRANCRAA is just one of many elements in a process where peoples rights to land are under pressure. For people in Namaqualand new rights and practical outcomes depend on interpretations and negotiations that mediate between the global and the local and thus their ability and power to participate in and affect those processes. TRANCRAA is a silver thread easily broken, between the promises of international and constitutional rights and persistent of poverty.

"Human rights and land reform interface in two major ways. First, they stress the fundamental goal of protecting and enhancing livelihoods, both subsistence use and vitally needed new enterprises. Secondly, human rights address the need for trust and legitimacy in the relationship between people and government. Human rights thus make us sensitive to the limited scope of legal reforms that cannot alone address the structural violence of poverty nor ensure non-discriminatory and transparent local governance. In the TRANCRAA process, the hand of human rights is neither dead nor alive, but struggling - present in the background, sometimes touching debates and practices, sometimes pushed aside. Legal reform is a bridge between human rights principles and local practice in so far as it resonates with lived realities and perceptions. Within the severe constraints of land shortage and extreme levels of unemployment, secure ownership to common land still appears a necessary, though not sufficient, element in the process of democratisation and rural empowerment. Land rights as human rights become alive and have a legitimate future when they are ingredients in economic development and democratisation."