Cabinet Resolution On Epangelo Legal [opinion]

IN AN opinion piece that appeared in the Windhoek Observer of 28 March 2014, it was argued that “Aocate Peter Koep sparked an interesting debate this week when he charged that state-owned mining company Epangelo basically operates illegally.

He argues that the 2008 Cabinet resolution that created Epangelo Mining and gave it preferential rights to so-called ‘strategic minerals’ has no legal basis.”

This statement is devoid of any truth. The creation of private companies can be effected by either the executive or the legislative arm of government. The Cabinet resolution that operationalised Epangelo is not illegal.

Within the same opinion piece it was claimed that Cabinet gave Epangelo preferential rights over diamonds, uranium, copper, gold and coal, which is virtually everything worth anything. To my knowledge Epangelo never received any preferential rights as claimed. Epangelo applied for all its EPL’s like any other entity. The claim that the strategic minerals policy has been implemented should thus be dismissed. Nevertheless, it is my opinion that Epangelo should get preferential treatment. It was further claimed that “… in practice the law seems to be whatever cabinet says at any given time in our country, although that is not really how it should be.” If that were the case then why should the President request parliament to enact laws to effect the proposed strategic minerals resolution, in his State of the Nation address of 2012.

The idea that the government should simply instruct parliament to “legalise Epangelo retroactively” is thus naiumlve, as Epangelo Mining was formed under the Companies Act. Furthermore, the claim that the Namibian judiciary is “simply handpicked to ensure it goes along with government” is an insult to the judiciary.

Epangelo was formed in 2008, the cabinet resolution that operationalised Epangelo took place in 2009 while the cabinet resolution on strategic minerals took place in 2011. The three should not be confused. Yet again, an experienced lawyer should have picked that up.

The ideological debate on why the state should or should not own “anything” is welcome. The Windhoek Observer commentary is aocating a purely capitalist approach, as opposed to the mixed economy that Namibia has adopted. It argues that those who own surface rights should also be the ones to own the mineral rights underneath.

How will the rest of the Namibians derive benefits from such mineral rights once they have been privatised? The author of the Observer commentary referred to “capital formation” as an ideal end result that should be brought about by some kind of “property ownership” manifesto.

In the same opinion piece, it was argued that Article 16 of the Namibian Constitution should be emphasised to protect such “property rights”. Article 16 made its way into the Constitution through the 1982 Principles, but not after a lengthy debate. It was argued in the 1982 Principles by the so-called Five Western Powers (USA, Britain, Germany, France and Canada) that those who owned property prior to independence should be protected under this specific clause, which later formed the basis for the willing-seller willing-buyer dogma.

In my opinion, Article 16 of the Namibian Constitution was not meant to protect the property of the majority of Namibians, who were not allowed to own property under the apartheid dispensation thus had nothing to protect. It is a pity that our progressive brothers at the Observer are using the same clause to protect imaginary property rights in defense of people who may have been part of the cabal that ensured that such clauses made it into the Constitution, via Resolution 435, in the first place (for their own future benefit).

To my understanding, Article 16 leaves out the current communal areas, as they do not qualify as private property. In short, the de facto application of Article 16 of the Constitution is different from its simple de jure meaning. It has contributed to entrenchment of pre-independence-acquired property in the hands of a few together with the phrase “unless otherwise legally owned”.

The government has not forgotten about the de jure meaning of this this phrase. Perhaps, they simply don’t like its de facto application.

For example, the willing-seller willing-buyer has led to the inflation of prices of farms and property thereby making the land and property issue highly divisive. If the same owners are given mineral rights on top of what they already own, as proposed by the Observer, then how will the rest of the Namibians access such mineral rights? Is it through the willing-seller willing-buyer dogma? That will be a recipe for revolution. The ideological debate, and the fight beyond the debate, between those who own landropertyminerals on one hand, and the dispossessed, was the main cause for the war of liberation. It is a contest that can plunge any country into turmoil. If the State does not intervene, through properly constituted public enterprises, working side by side with private entrepreneurs in a mixed economy then such turmoil is guaranteed.

The UNIN report on Namibia, with regards to public enterprises, was not about one sector or about Epangelo. It encompassed all the sectors, especially those sectors where SOEs have been established such as minerals development, water and energy provision, oil and gas, transport and telecommunication, public works and infrastructure development etc. The Observer commentator is thus aised to read the entire UNIN report.

State ownership of mineral rights is not a myth. It is a deliberate, ideologically-backed policy complemented by legislation, including section 100 of the Namibian Constitution as well as section 2 of the Minerals (Prospecting and Mining) Act Regulations, Act 33 of 1992.

Source : The Namibian