Namibia

Namibia is a sovereign and democratic state founded on the supremacy of the Constitution of the Republic of Namibia and the rule of law. Any law or conduct inconsistent with the Constitution is invalid, and the obligations imposed by it must be fulfilled.

Article 95 of the Namibian Constitution, under Chapter 11 on State Policy, provides that the State shall actively promote and maintain the welfare of the people by adopting policies aimed, inter alia, at the maintenance of ecosystems, essential ecological processes and biological diversity of Namibia and utilisation of living natural resources on a sustainable basis for the benefit of all Namibians both present and future, in particular, the Government shall provide measures against the dumping or recycling of foreign nuclear and toxic waste won Namibian territory.

Various policies and laws have been introduced by the Namibian Government which seek to address the impacts of climate change, as well as create a framework in terms of which adaptation and mitigation projects can be developed. These include the National Policy on Climate Change, 2011 and the National Climate Change Strategy and Action Plan (2013 – 2020).

The First Update of Namibia’s Nationally Determined Contributions, 2021 as well as the Second Update, dated 2023, further detail the country’s adaptation and mitigation needs and ambitions. In terms thereof, Namibia committed to reduce its GHG emissions conditionally by at least 90.713% of its business as usual (“BAU”) scenario.

Namibia is a net sink and its share in global aggregated emissions weighs only 0.000026%. Subject to sufficient foreign funding and aid, Namibia aims at increasing this sink potential by 5.7% in 2030.

To meet their greenhouse gas emission reduction goals, the country has also set aggressive plans to boost the penetration of renewable energy through various initiatives. The renewable energy sector in Namibia is governed by the Electricity Act, 2007, and its various regulations and codes. Further policies such as the National Renewable Energy Policy, 2017, the National Policy for Independent Power Producer Policy, 2018, the Net Metering Rules: Electricity Act, 2007 and the Modified Single Buyer Model Market Rules, 2023 all serve to govern and encourage the development of renewable energy projects in Namibia, as well as for electricity consumers to independently procure electricity from independent power producers for up to 30% of their total energy demand. Financial incentives to develop these type of projects at a large-scale are, however, not provided.

Successful projects include the REFIT (Renewable Energy Feed-in-Tariff) programme which was initiated by the Electricity Control Board in 2015, to incentivise the development of small 5MW photovoltaic solar plants. A total of fourteen power purchase agreements were entered into by

NamPower, as the national power utility, with various independent power producers. This programme has showcased the business case for the development of renewable energy facilities and has since been followed by the development of various larger solar, biomass and wind projects.

In addition to the generation of renewable electricity, there has in the recent years been an increasing interest globally to produce green hydrogen (and its derivatives, such as green ammonia) in Namibia. A Namibian Green Hydrogen and Derivatives Strategy, 2022 was published by the Ministry of Mines and Energy, and a Synthetic Fuels Act is set to be developed and promulgated to govern the emerging industry.

Energy projects and most other large-scale projects are further governed, from an environmental perspective, by the Environmental Management Act, 2007, which identified certain “listed activities” which cannot be conducted unless an environmental clearance certificate has been obtained in respect thereof. The listed activities include, inter alia, the construction of facilities to generate electricity and the mining or extraction of resources. The Environmental Management Act, 2007 and its regulations set out the processes to be followed in applying for such a certificate, which includes conducting an environmental assessment and engaging with interested and affected parties.

Environmental liabilities are dealt with in the sector-specific legislation, such as the Petroleum (Exploration and Production) Act, 1991 and the Minerals (Prospecting and Mining) Act, 1992. These include procedures to be followed in the event of an environmental disaster, as well as obligations relating to rehabilitation and decommissioning.

To address Namibia’s ambitions and commitments to reduce carbon emissions in the country, as well as create opportunities for net zero wealth, the Namibian government is currently a Carbon Market Framework (“CMF”) and related guidelines, to lay the foundation for carbon trading in Namibia. It is poised to attract foreign direct investments through carbon credit sales and promote climate resilience via eco-friendly technology investments. A national carbon registry was also launched in late 2023.

As Namibia sees more investment into the country in respect of numerous growing industries – including renewable energy and green hydrogen, agriculture, mining and, more recently, petroleum – there is a growing emphasis placed on the revision of Namibia’s investment laws. The promulgation of anticipated legislation could require investors to partner with Namibian companies and persons, as well as to procure good and services locally and hire Namibian employees.

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Overview: Namibia

Namibia is situated in the southwestern part of Africa. It shares borders with Angola to the north, Zambia and Zimbabwe to the northeast, Botswana to the east, South Africa to the south, and the Atlantic Ocean to the west.

GDP, Economic Wealth, and Capital Wealth

The Namibian dollar is pegged to the South African rand, resulting in many economic trends (including inflation) closely following those in South Africa.

In an economic outlook report published in August 2024, the Bank of Namibia cautioned that Namibia’s GDP growth was projected to slow down in 2024, mainly due to subdued growth in the global economy, affecting demand for Namibia’s mineral exports, and the prevailing drought conditions. The domestic economy is expected to grow by 3.1% in 2024 and  expand by 3.9% in 2025.¹

The growth in Namibia's domestic economy is anchored by upbeat activities in the natural resources sector, including the residual impact of ongoing petroleum exploration on domestic economic activities and the surge in uranium production following price increases. In addition, sentiments have broadly improved across many other sectors of the economy such as tourism, transport and storage, financial services, and electricity generation.²

Socio-economic problems, inequality, and unemployment levels

Since its independence in 1990, Namibia has made progress in reducing poverty by halving the proportion of Namibians living below the national poverty line to 28.7% in 2009-2010 and to 17.4% in 2015-2016.³ Despite the progress, deep underlying challenges persist, undermining the prospects for further advancement.

Namibia ranks as one of the world’s most unequal countries. Globally, its Gini coefficient stands at 64.2, as most recently measured in 2019, and was second only to South Africa. Geographical disparities in both economic opportunities and access to services are large and widening. High levels of inequality result in starkly different poverty rates across different groups, including by age and gender. Namibia’s poverty rapidly declined from 1993/1994 to 2015/2016, but it remains high for the country’s level of development. Despite recent progress, Namibia ranked only 117th among 157 countries on the Human Capital Index in 2020.

The duality of the labour market, combined with slow job creation and low primary-sector productivity, results in very high unemployment. The challenge of unemployment is particularly dire with about 38% of young people being unemployed. Moreover, the lack of an informal sector, which often provides employment opportunities in other African countries, poses a major challenge for Namibia's future development.

Population dynamics

In March 2024, the Namibia Statistics Agency (“NSA”) unveiled the preliminary findings of the 2023 Population and Housing Census. According to the report, Namibia's population has surged to 3.02 million, nearly doubling since the inaugural 1991 census, which tallied 1.4 million people. Preliminary figures indicate a population increase of 909,324 individuals since 2011, reflecting an annual growth rate of 3.0%. Namibia has a youthful population, with 71.1% of the population under 35 years of age, and nearly 60% of the population are of productive age, being between the ages of 15-59 years.

Namibia having a geographical area of 825,419 square kilometres, population density is reported at 3.11 persons per square km, making it one of the most sparsely populated countries in the world.

Namibia is divided into 14 regions, with most of the population living in the north central regions, while the south is the least inhabited region with less than 10% of the population residing there. Since independence, Namibia has seen a particularly rapid increase of the population in urban areas due to rural-urban migration, caused by skewed development and limited opportunities in rural areas.⁴ According to the recent census results, urban areas have experienced a 65.5% population increase since 2011, while rural areas have seen a 26.3% rise during the same period.

It is noted that among African countries, Namibia is one of the most rapidly urbanising countries with an urban growth rate estimated at 4.96% in comparison to 3.3% for the African continent in 2017.⁵ It is projected that by 2030 more than half of the population will be living in urban areas with a third residing in the Khomas and Erongo regions.

Natural wealth in the Mining Sector

Over the past five years (2019-2023), diamond and uranium were the most significant mineral commodities contributing to Namibia’s economy. In 2023, the Kimberley Process Certification Scheme (“KPCS”) revealed that Namibia (having the richest known marine diamond deposits in the world, estimated to total more than 80 million carats)⁶ is among the top five African diamond exporters, ranking fourth behind Botswana, Angola, and South Africa. According to the World Nuclear Association, Namibia was the fourth-ranked producer of uranium in 2023, accounting for 10% of world production.⁷ Metals produced in Namibia include gold, copper, iron ore, lead, manganese, silver, tantalum, tin, and zinc. In addition to arsenic trioxide and diamond, industrial minerals produced include cement, salt, and sulfuric acid.⁸ There has, in recent years, also been an increasing interest in the mining of lithium in Namibia.

In 2023, the Namibian economy expanded by N$ 6.8 billion from N$ 52.9 billion to N$ 59.7 billion. Mining and quarrying were the key drivers to GDP growth and contributed 6.6% to the country’s GDP. The mining sector (including refined metals and cut and polished diamond) contributed 14.4% to Namibia’s GDP in 2023, and accounts for about 64% of Namibia’s total exports of goods by value.⁹ The diamond sector make up between 7 and 8% of the country’s GDP.

Natural Wealth in the Renewable Energy and Green Hydrogen Sector

Renewable Energy

With about 2600 to 2800 full load hours, Namibia’s solar power potential is almost three times that of Germany. An average wind speed of more than 10 m/s onshore adds to its competitive advantage. Only very few countries in the world are characterised by similar conditions, where green energy – and green hydrogen – can be produced most economically in locations that have an optimal combination of abundant renewable resources, available land, access to water and the ability to transport and export energy to large demand centres.

Due to the growing demand for electricity, and in order to reduce electricity imports, according to the National Integrated Resource Plan (“NIRP”) of 2016, power plant capacities are to be expanded to 1,677 MW by 2035. At 708.5 MW, renewables account for the larger share of planned power plant capacity, providing 4,947 GWh or about 60% of electricity generation in 2035.

According to their Integrated Annual Report of 2023, Namibia’s state-owned power utility, Namibia Power Corporation (Proprietary) Limited (“NamPower”), aims to bring several large-scale renewable power projects online in the coming years.¹⁰ In this respect, NamPower is planning to implement 300 MW distributed Solar PV plants (with battery energy storage systems) and 300 MW Wind Plants in collaboration with independent power producers. This ambitious expansion will largely be driven through the competitive Independent Power Producer (“IPP”) tenders that will be subject to power purchase agreements (“PPAs”) with NamPower, as well as through regional energy distributors.

The introduction of the Modified Single Buyer Market model by means of the Modified Single Buyer Market Rules, 2002 has further driven continued investment into the Namibian renewable energy sector, by enabling large power users (referred to as contestable customers) to procure up to 30% of their total energy demand from IPPs (referred to as eligible sellers), thereby allowing for the generation and supply of electricity by IPPs directly to customers.

According to NamPower’s Integrated Annual Report, 2023, market liberalisation has attracted private sector investments in solar and wind, bringing 300 MW of PV and 200 MW of wind power to the national grid.

Green Hydrogen

On the back of Namibia’s renewable energy potential, the country is emerging as a global destination for green hydrogen investment and production. Namibia has made tremendous strides towards establishing a green hydrogen economy. The Namibia Green Hydrogen Derivatives Strategy, 2022, envisions that Namibia could achieve a levelized cost of hydrogen (“LCOH”) of just US$1.2-1.3/kg for production by 2030.

Model calculations indicate that green hydrogen in Namibia can be produced at a cost between US$1.40 and $1.85 per kg, demonstrating the country’s competitiveness on the international market. Namibia aspires to create an at-scale green fuels industry with a production target of 10-12 million tons per annum hydrogen equivalent by 2050. To this end, it will develop three hydrogen valleys; in the southern region of Kharas, the central region including Walvis Bay port and the capital, Windhoek, and the northern region of Kunene. Namibia also aspires to establish an integrated, thriving green ecosystem across Southern Africa by creating synergies in shared infrastructure, manufacturing collaboration and power exports, e.g., with South Africa, Botswana, Zambia, and Angola

The Strategy further envisions that green hydrogen projects could generate an additional US$6.1 billion by 2040, being 32% higher than current GDP estimates. By 2040, the green hydrogen industry is further expected to add 600,000 jobs to the Namibian economy.

Since the Conference of Parties (“COP”) 26, Namibia has secured support from various countries and the European Union, aimed at establishing energy partnerships, enabling Namibia not only to become increasingly energy independent but also to supply and sell green molecules to energy-hungry markets like Europe. These partnerships entail a wide variety of aspects, including government-to-government cooperation, tertiary education programmes between European and Namibian academic institutions, the establishment of vocational training facilities, and pilot projects between local and international private sector entities. The Namibian government has, for example, signed cooperation agreements with the governments of Belgium,¹¹ Germany¹² and the Netherlands (including the Port of Rotterdam),¹³ as well as with the European Union,¹⁴ with a view to exporting to these countries once first production comes online.

In November 2021, the Namibian government announced Hyphen Hydrogen Energy as the preferred bidder to develop a vertically integrated hydrogen project near Lüderitz. The project is estimated to commence with construction in 2026. Preliminary estimates suggest that the project will be capable of producing up to 300,000 tons of green hydrogen and ammonia and will have 3 GW of electrolyser capacity, powered by 7 GW of renewables. By 2030, the $10-billion project will be poised to export 3 million tons of green – or renewable energy-produced – hydrogen products to Europe.¹⁵ In May 2023, the Namibian government and Hyphen Hydrogen Energy – an incorporated joint venture ultimately owned by Nicholas Holdings Limited and Germany’s ENERTRAG SE – signed a feasibility and implementation agreement for the next phase of development.

Hyphen Hydrogen Energy is one of a handful of projects currently under development – another is the Daures Green Hydrogen Village (“DGHF”), a joint venture between Fortescue Future Industries and Enersense Energy Namibia. DGHF has received funding from the German Federal Ministry of Research and Education to construct a 1 GW renewable energy generator and 500 KW electrolyser as proof of concept for large-scale green hydrogen production, to be developed by 2032.¹⁶ Further, Hydrogène de France (“HDF”) Energy seeks to develop Namibia’s first green hydrogen-to-power plant, featuring 85 MW of solar capacity and a green hydrogen production unit.¹⁷ Four other German-funded pilots are exploring hydrogen dual-fuelled vehicles and refuelling stations, valued at roughly $33 million.¹⁸

Dubbed the “fuel of the future”, green hydrogen is therefore expected to dramatically transform Namibia’s economy.

Nevertheless, achieving production goals and integrating green hydrogen into the global energy mix are different, equally complex tasks. Only 56% of Namibians have access to electricity, which critics claim point to the infeasibility of supporting large-scale green hydrogen production. According to the Namibia Green Hydrogen and Derivatives Strategy, 2022, the Namibian government estimates the total capital requirement to be nearly USD$190 billion by 2040. Beyond domestic concern, establishing green hydrogen as an economically viable energy vector faces its own challenges, particularly in transport and lack of suitable major infrastructure, such as ports, railways, and gas pipelines. While estimates place fully actualised Namibian green hydrogen production among the world’s most affordable energy sources, some analysts claim shipping costs for liquefied green hydrogen will be at least five times more expensive than liquified natural gas, though end user costs are estimated to be reduced by 60% by 2030 due to economies of scale and advancements in technology.

To this end, the development, implementation, and enforcement of a sound and transparent regulatory framework, in line with international standards and best practices, will likely represent the underlying and most critical key to a successful introduction of a green hydrogen industry in Namibia. In addition, aspects such as energy trade, taxation, technical and product standards, migration, health and safety, environmental concerns as well as human security would need to be factored in.

Requirements: Regulatory framework for Renewable Energy and Green Hydrogen

Importantly, and although Namibia’s legislative framework for energy makes provision for renewable energy regulation, there is, at present, no specific piece of legislation that specifically governs renewable energy or green hydrogen.

Specific industry codes which govern renewable energy regulation and, marginally, certain aspects of green hydrogen include:

(1) Electricity Act, 2007, and its various regulations, including Electricity Regulations: Administrative; and Electricity Regulations: Technical Rule;

(2) Environmental Management Act, 2007;

(3) Applicable land and environmental legislation, depending on the locality of a project;

(4) Water Resources Management Act, 2013;

(5) Hazardous Substances Ordinance, 1975; and

(6) Atmospheric Pollution Prevention Ordinance, 1976.

Although the current energy policies reveal the intention to develop renewable energy, these policies have not been adequately translated into legislation that would serve to regulate and incentivise renewable energy generation. In relation to green hydrogen, currently residual legislation can be utilised to develop the different elements and components comprising of green hydrogen production. These laws, however, are not sufficient for the development of green hydrogen as they not only fail to define how oversight would be exercised, but also fail to incentivise the development of the sector and to provide the means to fast-track the approval processes. Furthermore, the current framework does not cater for standardisation of hydrogen technology and development of key common user infrastructure.

To defray the foregoing legislative paucity of green hydrogen, the Namibian lawmakers have since undertaken to enact a so-called “Synthetic Fuels Act” which is currently being developed. The enactment of such Act was envisaged in the Namibia Green Hydrogen and Derivatives Strategy published by the Ministry of Mines and Energy in November 2022, which, in addition, provided for the establishment of an implementation authority office, that has since been established.

The envisaged Synthetic Fuels Act is expected to define standards that conform to international guidelines to reduce operational uncertainty for developers and set quality levels to comply with international export market requirements.

It is also understood that the proposed Act will define oversight activities, e.g. transparent access to land and permit processes for renewables and green hydrogen that guarantee fair treatment of investors and local populations while protecting the environment and ensuring safety. In addition, the proposed Act is set to advance development with private and public sector stakeholders, e.g. by modifying transmission and distribution fees for green hydrogen producers to reflect ancillary services provided for the grid, or by introducing mechanisms to compensate developers for overbuilding renewable energy capacity in a specific area. The Act is also expected to introduce frameworks for pilot projects where regulation is not yet in place.

Until the envisaged Synthetic Fuels Act is introduced, the current laws in place relating to each of the different components of green hydrogen production (e.g. electricity generation, desalination and ammonia production, transport, and storage) will remain applicable.

Carbon removal or reduction wealth

A determination of Namibia’s net carbon removal or reduction wealth is presently unchartered. However, Namibia has placed an emphasis on the agriculture and forestry sectors as key sectors in which carbon credits can be traded in Namibia. Agricultural practices such as conservation tillage and soil carbon sequestration can effectively remove carbon from the atmosphere and store it in the soil.

The 2015 Paris Agreement on climate change, to which Namibia is a party, allows, under article 6.4, for state parties to voluntarily cooperate to reach more ambitions targets by exchanging carbon credits. In this regard, Namibia has committed itself to participate in this cooperation and has, through the United Nations Development Programme (“UNDP”) office in Namibia, received funding from the government of Japan to establish carbon markets in the country as a way of addressing climate change and thus achieving its goals set out in its Nationally Determined Contributions (“NDCs”). The development of a carbon market framework is part of the initiatives taken under the project titled “Promotion of Carbon Markets in Namibia for an Enhanced Implementation of the NDCs Towards Net-Zero Emission and Climate Resilience Development in Responses to the Climate Emergency” funded by the Japanese government in the amount of US$ 1 million. The development of a carbon market framework is still underway.

As a whole, Namibia requires US$ 3.61 billion to implement its NDCs and therefore, carbon markets may be a key avenue for mobilising finance and building reduction wealth.

_{1. Economic Outlook, August 2024, Bank of Namibia. Available at: BoN Economic Outlook.}

_{2. Budget statement for the 2024/25 financial year by Mr. Ipumbu Shiimi, MP. Available at: HOME - MFPE - Portal Ariel (gov.na); last accessed on 5th March 2024.}

_{3. The World Bank, 2023, Available at: Namibia Overview: Development news, research, data | World Bank.}

_{4. Government of the Republic of Namibia and United Nations Population Fund, 2022, Evaluation of the United Nations Population Fund (UNFPA) Namibia 6th Country Programme (2019 – 2023), pp15-16.}

_{5. City of Windhoek (COW), 2017, Rate of Urbanization to the Capital City, Windhoek, The Namibian Newspaper 03 March 2017.}

_{World Diamond Council, From the Sand and from the Sea: The Namibia Case Study, July 2024. Available at:  From the sand and from the sea: The Namibia Case Study – World Diamond Council.}

_{Available at: https://world-nuclear.org/information-library/country-profiles/countries-g-n/namibia.}

_{8. Barry, J., 2019, The Mineral Industry of Namibia, US Department of the Interior & US Department of Geological Survey, pp1-8.}

_{9. World Bank – Country Overview. Available at: Namibia Overview: Development news, research, data | World Bank.}

_{10. Integrated Annual Report, 2023 at page 70. Available at: NamPower_Integrated_Annual_Report_2023.pdf.}

_{11. Available at: Belgium-Namibia MoU on green hydrogen – Policies - IEA.}

_{12. Available at: Karliczek: Germany and Namibia form partnership for green hydrogen - BMBF.}

_{13. Available at: Namibia and the Netherlands work together in the field of green hydrogen | Port of Rotterdam.}

_{14. Available at: EU and Namibia agree on next steps of strategic partnership (europa.eu).}

_{15. Available at: Projects - Hyphen Hydrogen Energy (hyphenafrica.com).}

_{16. Available at: Daures Green Hydrogen Village Secures N$220m German Funding - Daures Green Hydrogen.}

_{17. Available at: RSWK | RENEWSTABLE SWAKOPMUND (renewstable-swakopmund.com).}

_{18. Available at: Namibia: Four Green Hydrogen Pilots Awarded €30M in German-Funding (energycapitalpower.com).}

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Nationally Determined Contribution

In line with Article 4 of the Paris Agreement and decision 1/CP.21 of the United Nations Framework Convention on Climate Change (“UNFCCC”), Namibia submitted a revised version of its First NDC in July 2021 during COP26. A second update of the country’s NDC’s were further published in 2023, in terms of which Namibia committed to reduce its GHG emissions conditionally by at least 90.713% of its business as usual (“BAU”) scenario.

Namibia is a net sink and its share in global aggregated emissions weighs only 0.000026%. Subject to sufficient foreign funding and aid, Namibia aims at increasing this sink potential of 2030 by 5.7% in 2030. To meet the greenhouse gas emission reduction goals, the country has also set aggressive plans to boost the penetration of renewable energy through various initiatives.

Mitigation contributions proposed include –

(1)   the introduction of new emissions reducing technologies and encouraging healthier practices that are more energy efficient;

b) climate-friendly and energy-efficient refrigeration and air conditioning (“RAC”);

c) Low Global Warming Potential technology options, particularly technology with natural refrigerants, as an alternative to hydrofluorocarbon for almost any RAC appliance;

d) reduction of the deforestation rate by acknowledging that reforestation, agroforestry, and urban forests are vital to both carbon and timber productivity through best forest management practices; and

e) introduction of energy utilisation measures such as municipal solid waste transformation into compost and electricity.

Further, Namibia’s NDCs put equal emphasis on further improving adaptation and developing future climate resilience to reduce climate threats to Namibian people and their livelihoods. The sectors of agriculture, tourism and fisheries sector are identified as critical for adaptation. In this regard, Namibia’s aim to pinnacle resilient growth is evidenced by a range of ongoing projects, such as the community-based adaptation programmes focusing on agricultural and pastoral communities in the north-central and far north-eastern region of the country, undertaking community-based projects to build resilience to climate change by increasing resilience against climate-induced land degradation.

In its first NDC, Namibia pledged US$ 0.53 billion of funding for unconditional measures (10%), with US$ 4.8 billion required for conditional measures (90%).

To implement the measures set out in its NDC, Namibia has introduced its NDC-ISAP (Implementation Strategy and Action Plan). The document has been developed by reviewing past and present strategic documents, both focusing on climate action, economic development, and the implementation of sustainable development goals (SDGs) and stakeholder consultations to ensure specific strategies and objectives are in line with the NDC-ISAP. It covers the period 2023-2030, with a focus on the period up to 2025.

The NDC-ISAP is expected to guide climate action in-country, both in terms of priorities, monitoring and reporting. The NDC-ISAP therefore outlines activities to be carried out within each sector for each of the NDC measures. Stakeholders (lead and partner agencies) will carry out the activities and actions in a coordinated, collaborative, and integrated approach. The NDC-ISAP will be used to plan, design, prioritise and coordinate the next steps for successful implementation of the country’s NDCs. The document is also a useful tool to reflect the ongoing efforts to develop, monitor and evaluate the performance of the First NDC second update measures. It is expected that this will be a ‘live’ document and may be updated over time. During its future updates, new sectors and activities may be added.

Use of net-zero wealth for own targets

Namibia has established key institutional arrangements to aid the country in achieving its own targets set in its NDC. These include:

(1) The National Climate Change Committee (“NCCC”), which oversees the implementation of the climate change policy, including the preparation of the reports for submission to the Convention and also plays an advisory role to Government on climate change issues. It comprises representatives of the various ministries and other stakeholders, such as the private sector and NGOs amongst others. The NCCC is chaired by the Ministry of Environment, Forestry and Tourism and the deputy chair is the National Meteorological Service of the Ministry of Works and Transport. The NCCC established working groups and sub-committees which oversee and provide guidance on the different thematic areas during the preparation of this national communications.¹⁹

(2) A Climate Change Unit, which has been established in the Ministry of Environment, Forestry and Tourism, as this is the climate changing coordinating ministry.

(3) A National Committee on the Rio Conventions, which reports to the Parliamentary Standing Committee on Natural Resources and Economics.

Various programmes and initiatives have also been introduced to aid Namibia in achieving its climate change goals. These include, but are not limited to, the following -

(1) A greenhouse gas emission inventory has been set up, where a number of large Namibia companies have pledged to report their emissions, so as to allow the country to effectively measure its total greenhouse gas emissions.

(2) The REFIT programme (Renewable Energy Feed-in-Tariff) was initiated by the Electricity Control Board in 2015, to incentivise the development of small 5MW photovoltaic solar plants. A total of fourteen power purchase agreements were entered into by NamPower, as the national power utility, with various independent power producers.

(3) Namibia has launched its Nationally Appropriate Mitigation Action on Rural Development through Electrification with Renewable Energies” (“NAMA”). The overall target of the NAMA is to support Namibia in achieving the goal defined in the Off-Grid Energisation Master Plan, namely, to provide access to appropriate energy technologies to everyone living or working in off-grid areas. The NAMA aims at giving access to electricity for regions, households and companies which are currently without access to electricity, as well as improving the share of renewable energies (mainly using solar energy). The NAMA will reduce greenhouse gas emissions through the replacement of fossil fuels with renewable energies and will provide the conditions for income generation and new business opportunities.²⁰

(4) The Green Climate Fund and the Environmental Investment Fund of Namibia has funded various projects which aim to address climate change in Namibia, which includes:

(i) Empower to Adapt: Creating Climate-Change Resilient Livelihoods through Community-Based Natural Resource Management in Namibia.

(ii) Building resilience of communities living in landscapes threatened under climate change through an ecosystems-based adaptation approach - This project will use Ecosystem-based Adaptation as cost effective and low risk approach to build climate resilience across eight targeted landscapes in Namibia.

(iii) Improving rangeland and ecosystem management practices of smallholder farmers under conditions of climate change in Sesfontein, Fransfontein, and Warmquelle areas of the Republic of Namibia - To reduce the vulnerability of smallholder farmers, this project will address the impacts of increasing temperature and higher water evaporation on crop production and bush encroachment on land and livestock productivity. It will increase the efficiency with which rainfall is used to maintain agricultural and rangeland production.

Existing collaboration among countries and opportunities for future collaboration

Notably, the Japanese government funded the development of a carbon market framework for Namibia in mid-2023 in the amount of US$ 1 million. The framework is part of the initiatives taken under the project titled “Promotion of Carbon Markets in Namibia for an Enhanced Implementation of the NDCs Towards Net-Zero Emission and Climate Resilience Development in Responses to the Climate Emergency”, which is a project led by the United Nations Development Programme (“UNDP”).²¹ In 2023, a final report was issued jointly by the UNDP and the Japanese Government.²² According to the report, the project developed a Carbon Market Framework (“CMF”) and related guidelines developed, laying the foundation for carbon trading in Namibia. It is poised to attract foreign direct investments through carbon credit sales and promote climate resilience via eco-friendly technology investments. The framework is scheduled for submission to the cabinet for endorsement in October 2023 after final review by the Minister of the Ministry of Environment, Forestry and Tourism (“MEFT”). By August 2024, such framework and guidelines have not been published yet.

The report also sets out that a national carbon registry and transparency system was developed for carbon credit registration and issuance. The national carbon registry was launched late 2023.

_{19.   World Bank Group, Climate Risk Country Profile, Namibia. Available at: 15931-WB_Namibia Country Profile-WEB.pdf (worldbank.org).}

_{20. Available at: NAMA on Rural Development in Namibia through Electrification with Renewable Energies | United Nations Development Programme (undp.org).}

_{21. Available at: Namibia shares efforts for carbon markets at COP28 - Business - The Namibian.}

_{22. Final Report, Namibia, Nationally Determined Contributions (NDCs) to achieve net-zero emissions and climate-resilient development, in response to the climate emergency. Available at: doc_7220717279833461678FNRforClimatePromise_JSB_Namibia_FINAL29September2023.pdf}

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Mitigation projects

The Second Update of Namibia’s National Determined Contribution dated 2023 (the “Updated NDCs”) identifies four sectors in respect of which mitigation measures and actions are to be implemented.

In the energy sector, the Updated NDCs identifies eight mitigation measures comprising nineteen actions aim at substituting fossil fuels with renewables and increasing efficiency. A total mitigation potential of 3.613 Mt CO2 e is estimated, inclusive of 0.332 Mt CO2 e of emissions already avoided since the base year 2010 to date. These mitigation measures include:

(1) Energy Industries - Electricity production – Substitute fossil fuel with renewable resources.

(2) Energy Industries – Electricity Use – Energy Efficiency Measures.

(3) Transport – Road Transportation - Substitute fossil fuel with green H2 and convert fossil fuel powered vehicles to electric ones.

(4) Transport – Rail - Replace all diesel/HFO powered locomotives with new ones running on green H2.

(5) Commercial and institutional – Increase use of RE for lighting and water heating.

(6) Residential - Reduce fuelwood and fossil products with electricity generated from renewable sources and replace water electric heaters with solar energy ones.

(7) Agriculture - Substitute fossil fuel with solar energy.

(8) Fishing – Substitute fossil fuel with green H2 in fishing vessels.

In the Industrial Processes and Product Use (“IPPU”) sector, the Updated NDCs identifies three measures with four actions are identified which could have a total mitigation potential of 0.178 Mt CO2 e at a cost of US$18 million. These include:

(1) Mineral industry – Cement production – Substitute clinker.

(2)     Non-energy product use – Reduce use of paraffin wax, candles, and lubricants.

(3)    Product Uses as Substitutes for Ozone Depleting Substances – Refrigeration and air conditioning – Reduced use of HFCs.

Examples of mitigation projects which have been implemented in this sector includes the Namibia Energy Efficiency Programme (“NEEP”) in buildings and the Barrier Removal to Namibian Renewable Energy Programme (“NAMREP”), as well as the development of various renewable energy projects, such as the Omburu PV (20MW) plant (commissioned) and the anticipated Otikoto biomass (40MW) plant and the Baynes Hydro project (600MW).

In the Agriculture, Forestry and Other Land Use (“AFOLU”) sector, removals, and emissions reduction in the land sub-sector amount to 53.0% and 46.5% of the mitigation potential while livestock contributes the remaining 0.5%. The Updated NDC’s identifies three measures and eleven actions for a total mitigation potential 7.986 Mt CO2 e for all measures at a cost of US$ 857 million. These include –

a) Livestock – Other Cattle – Enteric fermentation – Reduce enteric fermentation.

(2)     Land – Forestland – Wood removal – Reduce wood removal.

(3)     Land – Cropland, grassland, and settlements – Increase carbon sequestration.

An example of a carbon sequestration project which has been introduced includes the Kelp Blue project, which has cultivated 30 hectares of kelp forests along the coastline of Namibia. The project seeks to boost Namibia’s blue economy and also won the Zayed Sustainability Prize for Climate Action in 2023.

In the Waste sector, the Updated NDC estimate that total emissions up to 0.125 Mt CO2 e may be avoided with the implementation of three measures and four actions retained for a cost of US$ 499 million. These include –

a) Solid waste – Solid waste disposal system– Recycling, composting and recovery of landfill gas for production of electricity.

b) Incineration and open burning of waste – Open burning– Reduce open burning.

c) Wastewater treatment and discharge – Domestic wastewater – Improve wastewater management.

Adaptation projects

The Updated NDCs identify a prioritised list of 36 measures comprising 84 actions on the following eight sectors: agriculture and food security, water resources, biodiversity, and ecosystems; fisheries and aquaculture; health; cross-cutting issues; infrastructure; and coastal zone.

With regards to agriculture and food security, and despite its modest contribution to national GDP, agriculture impacts directly on the livelihood of 70% of the population. Approximately 48% of Namibia’s rural households depend on subsistence agriculture according to Namibia’s fifth National Development Plan (“NDP5”). Agriculture and food security are an adaptation priority for Namibia and nine measures comprising twenty-five actions at a total cost of US$1,514 have been identified in the Updated NDCs to ensure food security. These measures and actions include –

(1) The improvement of livestock disease control, prevention and treatment including facilities, which includes constructing additional veterinary clinics and provision for equipment; developing inspection centres at border control; and improving animal health and marketing in the North Central areas.

(2) Development of climate resilient livestock species, which includes the promotion of adoption of resilient species through small stock distribution preferentially to women and youth, in the rural communities, and setting up a breeding programme for development of adapted breeds more resilient to higher temperatures.

(3) Improve fodder production and create fodder banks, which includes issuing hydroponics to develop fodder production.

(4) Value chain development or agricultural products, which includes the value chain development schemes for cereals, horticulture, beef, dairy, poultry, and agro processing; setting up 20 units for meat agro processing and 10 units for vegetable/fruit; and capacity building of key stakeholders for value chain development.

(5) Upgrading of soft and hard infrastructure for improved monitoring of climate impacts on agricultural production systems, which includes to develop ICT facilities for intranet expansion in Ministry of Agriculture, Water and Land Reform (“MAWLR”); to construct MAWLR regional offices; to provide ICT facilities to the network of surveillance system; and capacity building of extension officers and producers, especially the communities.

(6) Promote conservation and organic agricultural practices, which includes comprehensive conservation agriculture program, and capacity building program for extension officers and farmers on new practice.

(7) Improve support to enhance adaptation through better adapted crops, crop husbandry practices and alternate crops, which includes, inter alia, to rehabilitate green scheme irrigation projects to diversity activities and production; to support development of mechanization; rice production pilot project; to improve grain and seed storage facilities; to drip irrigate 5000 ha of mechanized cropland; and capacity building of farmers on new practices.

(8) Introduce new technologies to enhance / maintain crop productivity, which includes to develop 400 ha of net-house vegetable production systems, as well as capacity building and support to farmers to adopt new production systems

(9)     Diversity from traditional crops to perennials, by the conversion of 10,000 ha of cropland set-aside to perennial cropland.

With a view on water resources, Namibia is a water scarce country and lack of good quality and restricted availability undermine socio-economic development with climate change expected to exacerbate the situation. Five measures comprising twelve actions have been identified for implementation up to the year 2030 at a total cost of US $3,505 million. These include:

(1) Integrated Water Resources Management Plan, which includes to quantify hydrological (surface and ground water) resources and to develop a water resources management plan.

(2)    Water Infrastructure Development, Maintenance and Rehabilitation, which includes to rehabilitate existing waterpoints; to construct new water points – boreholes; to extend the water supply infrastructure; to improve coverage of rural water supply; and to construct reservoirs and dams.

(3)    Water recycling, which includes to develop reticulate systems for secondary treatment of wastewater in 10 town of 40,000 people; to use the treated water for agriculture or industry or recharge of aquifer; and stand-alone water treatment system for 100,000 households.

(4)   Establishment and restoration of riparian buffers, by establishing and/or restoring 5,000 ha area of the Okavango river riparian buffer.

(5)    Desalination, by commissioning six coastal / inland systems to treat sea or brackish water.

Biodiversity and Ecosystem services are of prime importance to the communities and contribute substantially to the economy of the country. Ecosystems, hosting a very rich biodiversity, are fragile and could fail under the projected increased temperature and reduced rainfall regime. Adaptation of the ecosystems for preserving the biodiversity and services encompass six measures for eight actions at a total cost of US$ 371 million until 2030 have been identified. These include:

(1) Sustainable land management, which includes thinning of encroacher bush and biomass utilisation and integrated natural resource management.

(2)    Management of State Protected Areas, which includes to fence highly exposed conservation areas, and to upgrade tourists’ sanitation facilities, particularly water supply and sewage points to prevent ecosystem degradation.

(3)     Environmental Management, by developing and implement wildlife translocation schemes.

d) Fire management plans, by developing 5,000 km of firebreaks.

e) Green spaces and urban corridors, by developing 5,000 ha of green spaces and urban corridors.

f) Adaptive management of fragile natural habitats (Karoo, Wetlands and Desert), by developing and implementing a management strategy.

Fisheries and aquaculture are also key drivers of the Namibian economy. Commercial fishing, fish processing and inland fishery significantly contribute to the economy in terms of employment and export earnings, as well as to the GDP while enabling women empowerment through their participation in the chain of activities. Five adaption measures and eleven actions with the potential for further expansion within the blue economy development engine have been proposed and is estimated to cost US$ 85 million. These include:

a) Support by sustainable use of fisheries resources by local communities, by supporting viability assessments for small scale fisheries in all regions and to identify and implement responsive adaptation actions.

(2)  Adaptive management and protection of aquatic ecosystems / biodiversity, which includes to establish community participatory (fisheries reserves and marine protected areas) in selected areas and to develop adaptive management plans.

(3)    Develop mariculture within blue economy, which includes to develop two pilot farms of two ha each for prawns’ culture and to develop five farms of 150,000 units each for oysters.

d) Strengthen aquatic food systems, which includes to develop five aquaculture farms; to support establishment of small-holder fish farms; and supporting infrastructure (boreholes and ponds).

(5)    Building climate change resilience in both marine and freshwater fishing and aquaculture communities, which includes to support sustainable aquaculture models and practices, and to strengthen research, extension, and advisory services

With regards to health, the Updated NDC notes that Namibia ranks 168 of 193 countries in 2022 with an average life expectancy of 64.86 years. The five leading causes of inpatient deaths (all age groups) are HIV/AIDS, diarrhoea, tuberculosis, pneumonia, and malaria. Namibia is highly vulnerable to the adverse health implications from projected future climates which may have direct and indirect impacts on human health through impacts on water quality and availability, extreme weather events, nutritional status of humans, as well as distribution and abundance of vector organisms due to changing temperature and rainfall patterns and heat stress. Three adaptation measures, comprising twelve actions aim at improving health facilities coupled with enhanced monitoring and management of diseases. These include –

(1) Health security, which includes to improve health facilities (infrastructure – three district hospitals); to develop an appropriate surveillance/EWS; and capacity building.

(2) Eradication of malaria, which includes the elimination of the vector in endemic areas; to improve control; to increase prevention; and to enhance treatment.

(3) Improve disease management, which includes to improve prevention; better control; to improve treatment; and capacity building of medical staff; and sensitization of communities.

In respect of adaptation measures and actions listed above, a monitoring, evaluation and learning (“MEL”) system is under development, which will enhance the collection of climate related data by the Ministry of Environment, Forestry and Tourism, the National Statistics Agency and the National Planning Commission.

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Namibian legal system

Namibia is a hybrid jurisdiction: Uncodified Roman-Dutch common law forms the main body of the civil law, but Namibian law has also absorbed various principles and institutions from English law, predominantly in the areas of corporate and mercantile law. In addition, the Namibian law is further constituted by parliamentary legislation (both of pre-and post-independence origin), subordinate legislation as well as customary law of the indigenous people of Namibia.

It should be noted that Roman-Dutch law was made the common law of the area by Proclamation 21 of 1919, which among other things, stated that it was to be implemented in the territory “as existing and applied in the Province of the Cape of Good Hope”.²³ This position was affirmed by Article 66(1)²⁴ of the Constitution, which provides that both the customary law and the common law of Namibia in force at the date of independence remain valid to the extent to which such customary law or common law does not conflict with the Constitution or any other law passed by the Namibian Parliament. Accordingly, various South African statutes (as amended in Namibia) continue to apply, and South African case law up to 1990 is generally binding, and after 1990 has persuasive authority.

Namibia also adheres to the principles of the rule of law, the supremacy of the Constitution and the independence of the judiciary.

_{23. Amoo, SK. 2008. Introduction to law: Materials and cases. Windhoek. Macmillan Education Namibia.}

_{24. Article 66 (1) of the Constitution of the Republic of Namibia.}

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Structure of the judiciary

The Supreme Court

The Supreme Court is to be presided over by the Chief Justice, according to Article 79(2) of the Constitution.

Article 78(4) of the Constitution provides for the general jurisdiction of the Supreme Court. It vests the Supreme Court with the inherent jurisdiction that was vested in the Supreme Court of South West Africa immediately prior to the date of independence. The appellate jurisdiction covers appeals emanating from the High Court, including appeals which involve the interpretation, implementation and upholding of the Constitution and the fundamental rights and freedoms contained therein. In terms of section 17(1) of the Supreme Court Act, 1990, the Supreme Court is the highest court of appeal and as such its decisions are final and binding. In accordance with section 17(2) of the Supreme Court Act, 1990, the Supreme Court is not bound by any judgment, ruling or order of any court that exercised jurisdiction in Namibia prior to or after independence.

Review jurisdiction of the Supreme Court

The Supreme Court has review jurisdiction over the proceedings of the High Court, any lower court, or any administrative tribunal or authority established or instituted by or under any law. The Supreme Court may exercise this jurisdiction on the court’s own accord should it come to the notice of the court or any judge of that court that an irregularity has occurred in any proceedings, regardless of the fact that that such proceedings are not subject to an appeal or other proceedings before the Supreme Court. This review jurisdiction, however, does not entitle any person the right to institute review proceedings in the Supreme Court as a court of first instance.

The High Court

In terms of Article 80(2) of the Constitution, the High Court is a superior court of record, and its jurisdiction is provided by both the Constitution and the High Court Act, 1990. It enjoys both original and appellate jurisdiction and all the proceedings in the High Court are to be carried in an open court. The High Court is situated permanently in Windhoek, and since 2009 also in Oshakati.²⁵

In terms of section 16 of the High Court Act, 1990, the High Court shall have the jurisdiction over all persons residing or being in Namibia, as well as in relation to all causes arising and offences triable in Namibia. The High Court further has the power -  

“(a) to hear and determine appeals from all lower courts in Namibia;

(b) to review the proceedings of all such courts

[…]

(d) and in its discretion and at the instance of an interested party, to inquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination.”²⁶

Furthermore, Article 80(2) of the Constitution grants the High Court with its appellate jurisdiction to hear and adjudicate upon appeals from the Lower Courts.

Under its original jurisdiction, the court shall have the power to hear and adjudicate upon all civil disputes and criminal prosecutions, including cases which involve the interpretation, implementation and upholding of the Constitution and the fundamental rights and freedoms guaranteed thereunder, including the power to overrule legislation where legislation is inconsistent with either the Constitution or enabling legislation. The inherent jurisdiction to overrule applies also in the case of subsidiary legislation where it is uncertain or unreasonable, or it contains an improper delegation.

The Labour Court

One of Namibia's higher courts, the Labour Court was founded by Section 15 of the Labour Act, 1992 and reaffirmed by Section 115 of the new Labour Act, 2007. Under the Labour Act, 1992, there are two courts formed for each area where a Magistrate's Court has been established: a Labour Court and an area Labour Court. That is why district labour courts are situated among the lesser courts in the Namibian judicial structure. The Labour Court has appellate jurisdiction under Section 18 of the old Labour Act, 1992. Therefore, the court alone has the authority to a) decide appeals from any district labour court; and b) any appeal mentioned under Sections 54(4), 70(6), 95(4), 100(2), or 114(6) of the Labour Act, 1992.

Section 115 of the Labour Act, 2007 expands the jurisdiction of the Labour Court. It grants the court the authority to hear appeals from the following sources: a) decisions made by the Labour Commissioner under the Labour Act, 2007; b) awards made by arbitration tribunals under Section 89 of the Labour Act, 2007; and c) compliance orders issued under Section 126 of the Labour Act, 2007.

The Lower Courts

The Lower Courts are responsible for administering justice. In accordance with Article 78 of the Constitution, the Lower Courts form part of the judiciary which is one of the three branches of the state. Section 2(1) of the Magistrates’ Courts Act, 1944²⁷ establishes the Lower Courts. Magistrate Courts and Community Courts (as described in more detail below) fall within the category of the Lower Courts.

There are thirty-two (32) permanent courts and more than thirty (30) periodical courts in Namibia. Lower Courts are divided into regional divisions, spread across five administrative districts, namely, Windhoek, Oshakati, Otjiwarongo, Keetmanshoop and Rundu.

The Magistrates Court

The Magistrates’ courts are divided into regional, district, sub-district division and periodical courts in terms of section 2(f) and (2)(a)-(iv) of the Magistrates’ Courts Act, 1944. Section 29 of the Magistrates’ Court Act, 1944 provides for the jurisdiction of the Magistrates Court in respect of what claims it can hear.

The Magistrates’ Courts have jurisdiction over liquid claims not exceeding N$100,000.00 and illiquid claims not exceeding N$25,000.00. Conversely, the financial jurisdiction of the High Court is limited in terms of the minimum matters of first instance, but there is no ceiling as to the amount that can brought in front of the court. The Magistrates’ Courts are presided over by judicial officers, and advocates or attorneys of any division of the Supreme Court may appear in any proceeding in any court.

A magistrate's court's territorial jurisdiction is the district, subdistrict, or area for which it was established; a court that was established for a district is not able to adjudicate cases in a subdistrict. The territorial jurisdiction of the periodical courts is governed by similar provisions, and periodical courts have concurrent jurisdiction with any district court which is situated in the periodical’s courts territorial jurisdiction.

Except for treason, murder, and rape, all magistrates' courts—aside from the court of a regional division—have jurisdiction over all offences. All crimes, with the exception of treason and murder, fall within the jurisdiction of a regional division court. Regarding the possible penalties, the court's jurisdiction is restricted. In accordance with Section 92 of the Magistrates’ Courts Act, 1944, as modified by Section 6 of the Magistrates’ Courts Amendment Act, the court may impose an imprisonment sentence of no more than five years in cases where it is not a regional division court or no more than twenty years in cases where it is.

Each district has a seat for a regional magistrate court that presides on all criminal matters except high treason but has no jurisdiction on civil matters.²⁸

The Community Courts

Community Courts are established by the Community Courts Act, 2003. Magistrates’ Courts have the jurisdiction to hear and determine any appeal against any order or decision of a Community Court. The Community Courts Act, 2003, provides detailed procedures and requirements for the establishment and recognition of Community Courts in particular traditional communities. The Community Courts Act, 2003 was drafted to give legislative recognition to and formalise the jurisdiction of the traditional courts that render essential judicial services to members of traditional communities who subject themselves to their jurisdiction and the application of customary law. Formal recognition also brings the proceedings of the erstwhile traditional courts within the mainstream of the judiciary in Namibia and subjects their proceedings to formal evaluation and review by the superior courts.

The Community Courts, being part of the judicial structure of Namibia, are to cater for all forms of proceedings exercised under customary law. This constitutes an effective step taken by the government in protecting and enforcing human rights under the Constitution and preventing all forms of human rights violations under customary practices, as distinct from the pre-independent judicial structure. In line with Article 66(1) of the Namibian Constitution, customary law has to comply with and cannot derogate from Chapter 3, which contains fundamental human rights and freedoms.

Environmental Protection

In 2024, the Prosecutor General of Namibia revealed plans to establish a specialised court dedicated to tackling environmental crime in Namibia by the end of 2024. The court will be located in Otjiwarongo, situated in the Otjozondjupa Region of Namibia.

The Environmental Management Act, 2007 sets out an appeal procedure, in terms of which any person aggrieved by a decision of the Environmental Commissioner in the exercise of any power in terms of the Environmental Management Act, 2007 (such as, for example, the issuing of an environmental clearance certificate for conducting certain listed activities) may appeal to the Minister of Environment, Forestry and Tourism against that decision. In terms of regulation 25 of the Environmental Impact Assessment Regulations, 2012, such an appeal must be made within fourteen days from the date of receipt of notification of a decision. The Minister may consider and determine the appeal or may appoint an appeal panel consisting of persons who have knowledge of, and are experienced, in environmental matters to advise the Minister on the appeal. An appeal does not suspend the operation or execution of the decision pending the decision of the Minister, unless the Minster, on the application of a party, directs otherwise.

Should any person be aggrieved by the decision so made by the Minister as a result of an appeal, such person may appeal on points of law only against that decision to the High Court within the prescribed time period and in the prescribed manner. In terms of the Rules of the High Court of Namibia: High Court Act, 1990, a notice of an appeal to the court from the decision of a statutory body must, unless otherwise provided in an applicable law, be delivered within twenty days after the date of such decision, but where the reasons for the decision of the body are given on a later date the notice may be delivered within twenty (20) days of that later date.

_{25. Section 4 of the High Court Act, 1990 provides that the seat of the High Court is to be in Windhoek, but if the Judge-President deems it necessary or expedient in the interests of the administration of justice, he or she may authorise the holding of its sitting elsewhere in Namibia.}

_{26. Section 16 of the High Court Act, 1990.}

_{27. No. 32 of 1944.}

_{28. Ibid.}

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Legal framework for developing net-zero wealth

Constitution

Article 95 of the Namibian Constitution, under Chapter 11 on State Policy, provides that the State shall actively promote and maintain the welfare of the people by adopting policies aimed, inter alia, at the maintenance of ecosystems, essential ecological processes and biological diversity of Namibia and utilization of living natural resources on a sustainable basis for the benefit of all Namibians both present and future, in particular, the Government shall provide measures against the dumping or recycling of foreign nuclear and toxic waste won Namibian territory.

The Namibian Constitution further includes a list of fundamental human rights and freedoms, which includes the protection of life (Article 6), the respect for human dignity (Article 8), the right to family (Article 14), Children’s rights (Article 15) and Property rights (Article 16), all of which, arguably, could be affected by the impacts caused by climate change.

Climate law framework, including:

(1) Environmental laws

The Environmental Management Act, 2007 (and its Environmental Impact Assessment Regulations, 2012) seeks to promote the sustainable management of the environment and the use of natural resources by establishing principles for decision making on matters affecting the environment, as well as a process of assessment and control of activities which may have significant effects on the environment. In terms of this act, certain “listed activities” may not be undertaken without an environmental clearance certificate having been issued, the application process of which entails an environmental assessment process.

The aforementioned Act further provides that organs of state are entitled to have access to prescribed environmental information held by any person where that information is necessary to enable such organs of state to perform their duties in terms of the Act or any other law concerned with the protection of the environment or the use of natural resources.

(2) Air quality-focused laws

The Atmospheric Pollution Prevention Ordinance, 1976 seeks to provide for the prevention of the pollution of the atmosphere. The aforesaid Ordinance provides for the registration of “scheduled processes,” which have been set out in detail in Schedule 2 of the Ordinance (e.g. sulphuric acid manufacture, manufacture or processing of chlorine, arsenic works, etc).

The Ordinance further includes restrictions on the installation of fuel burning appliances unless such appliance is provided with effective appliances for arresting grit and dust to the satisfaction of the urban local authority or the Director, and unless prior written notice has been given to the urban local authority or the Director.

Procedures where smoke or other products of combustion cause a nuisance, or to prevent pollution of the atmosphere by dust, have further been set out in the Ordinance.

Specific smoke or dust regulations may also be set up by way of regulation by a local authority.

(3) Climate change-specific law(s)

There is no legislative framework in place, yet which specifically deals with climate change. The following policies and plans have however been prepared and published which have a bearing on the topic:

(i) Namibia Vision 2030;

(ii) Fifth National Development Plan (2017/2018 -  2021/2022);

(iii) National Policy on Climate Change, 2011;

(iv) Harambee Prosperity Plan II (2021 – 2025);

(v) National Agricultural Policy, 1995;

(vi) National Renewable Energy Policy, 2017;

(vii) National Disaster Risk Management Policy, 2012; and

(viii) Climate Change Strategy and Action Plan (2013 -2020).

(4) Energy laws that consider climate change issues, including renewable energy

The Electricity Act, 2007 is the primary legal instrument for the provision of electricity in Namibia. However, it does not differentiate between electricity generated by a non-renewable and renewable energy sources. Namibia therefore does not have a specific piece of legislation which relates to the development of renewable energy projects, or which introduces special revenue benefits for these projects.

Section 43 of the Electricity Act, 2007 empowers the Minister to implement regulations for the installation and use of renewable energy technologies. This empowering provision is not sufficient per se to encourage renewable energy generation. However, it is a good place to start in encouraging the use of renewable energy technologies needed for the development of renewable energy sources such as green hydrogen.

A National Renewable Energy Policy was published in 2017 and sought to provide the necessary boost to renewable energy development in Namibia and to serve as a clear signal that the Government of Namibia’s commitment to a clean energy future, powered by renewables. The aforesaid Policy sets out numerous objectives, as well as specific goals and targets. The objectives include:

(i) Making Renewable Energy a Vehicle for Expanded Access to Affordable Electricity in Namibia;

(ii) Confirming the Commitment of Namibia’s Government to Renewable Energy;

(iii) Boosting Investor Confidence in the Growth of Renewable Energy in Namibia;

(iv) Creating an Enabling Environment for Renewable Energy Development in Namibia;

(v) Accelerating Renewable Energy Sector Growth and Enhancing Value Chains in the Sector; and

(vi) Enabling Greater Participation of Namibians in the Renewable Energy Sector.

The goals and targets include:

(i) Namibia to become Energy-Secure by Leveraging its Renewable Resources;

(ii) To optimize the Renewable Energy contribution in the country’s electricity mix;

(iii) To make Renewable Energy a vehicle of Income-generating Opportunities, and Poverty Alleviation through Increased Access to Affordable Energy Services;

(iv) To ensure Transparency of Regulatory Mechanisms and Governance Related to Renewable Energy;

(v) To promote Grid-Connected and Off-Grid Renewable Energy Development;

(vi) To prioritise Renewable Energy Development beyond the Electricity Sector;

(vii) To pursue Climate-resilient Energy Sector Development through Renewable Energy;

(viii) To accelerate Development and Deployment of Energy Storage to Facilitate Renewable Energy Expansion; and

(ix) To ensure Renewable Energy Supports Accelerated Industrial Growth and Competitiveness.

The National Independent Power Producer Policy of Namibia, 2018, the Net-Metering Rules, 2023 and the Modified Single Buyer Market Rules, 2022 also seek to promote and have in practice promoted the development of renewable energy projects within Namibia.

(5) Licensing, authorisation and permitting requirements

Depending on the nature of adaptation and mitigation projects, various licences and permits may be required for the construction, operation, and decommissioning of these projects under various laws.

Section 27(3) of the Environmental Management Act, 2007 provides  that a person may not undertake a listed activity unless the person is a holder of an environmental clearance certificate in relation to that activity. Categories of gazetted listed activities include:

(i) Energy generation, transmission, and storage;

(ii) Waste management, treatment, handling, and disposal;

(iii) Mining and quarrying;

(iv) Forestry activities;

(v) Land use and development;

(vi) Tourism development;

(vii) Agriculture and aquaculture;

(viii) Water resource development;

(ix) Hazardous substance treatment, handling, and storage;

(x) Infrastructure; and

(xi) Other (construction of military demonstration and testing sites; cemeteries, camping, leisure, and recreation sites).

The Electricity Act, 2007, for example, imposes licensing requirements (subject to certain exceptions) on operators of generation, transmission or distribution facilities, importers, or exporters of electricity and those involved in electricity trading.

In respect of the extractive industry, the Minerals (Prospecting and Mining) Act, 1992 sets out various types of mineral licences which would have to be obtained prior to conducting any activities relating to minerals (including exclusive prospecting licences and mining licences). The Petroleum (Exploration and Production) Act, 1991 similarly contains different types of licences, including petroleum exploration licences and petroleum production licences.

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Carbon management/mitigation law(s) in Namibia

CCS

Technologies known as carbon capture and sequestration (“CCS”), are essential for cutting down on carbon dioxide emissions from power plants and industrial activities. There is no explicit law regarding CCS technologies in Namibia. A framework for environmental assessments and the obtaining of an environmental clearance certificate is established by the Environmental Management Act, 2007. Depending on the particular CCS technology to be used and the locality of the construction of same, an environmental clearance certificate may be required to be obtained for purposes of a CCS project. Furthermore, the National Climate Change Policy (2011) of Namibia proposes future legal improvements in this field and recognises CCS as a possible mitigation strategy.

Carbon Market

In order to internalise the social costs of carbon pollution and encourage emission reductions, carbon pricing systems, such as carbon taxes, are crucial. Namibia does not currently have a carbon tax in place. The Namibian government is aware of how carbon pricing might help advance sustainable growth and ease the country's transition to a low-carbon economy.

The introduction of a carbon tax in Namibia has encountered opposition as well as support from different stakeholders. A carbon tax, according to its proponents, would raise money for climate mitigation initiatives, promote investment in renewable energy sources, and encourage reductions in emissions. However, issues have been brought up about how a carbon price may affect certain industries, especially those that depend on fossil fuels, and the necessity of taking steps to address social equality and lessen potential financial burdens.

Compliance with Carbon Markets

Namibia has ratified the UNFCCC, the Kyoto Protocol and the Paris Agreement. Namibia is a non-Annex I country and does not have binding emission reduction targets under the UNFCCC and the Kyoto Protocol, but is required to submit a biennial update report every two years. As a Party to the Paris Agreement, Namibia is committed to contribute to the global efforts towards meeting Article 2, paragraph 1(a) of the Paris Agreement by reducing its emissions and increasing its removals.

The updated NDCs submitted under the Paris Agreement outline Namibia's commitment to exploring carbon market opportunities. These NDCs acknowledge the potential of market mechanisms to support sustainable development and emissions reduction efforts. Additionally, Namibia is a member of the African Carbon Market Initiative, indicating its interest in developing a regional carbon market within Africa.

On 29 August 2022, the United Nations Development Programme in collaboration with the Ministry of Environment, Forestry and Tourism held a seminar on the “Promotion of Carbon Markets in Namibia for an enhanced implementation of the nationally determined contributions (NDC) towards net-zero emissions and climate-resilient development, in response to the climate emergency”, an initiative to prepare Namibia to enter into carbon markets under Article 6 of the Paris Agreement.. In 2023, a final report was issued jointly by the UNDP and the Japanese Government as a result of this initiative. According to the report, the project developed a Carbon Market Framework (“CMF”) and related guidelines developed, laying the foundation for carbon trading in Namibia. It is poised to attract foreign direct investments through carbon credit sales and promote climate resilience via eco-friendly technology investments. The framework is scheduled for submission to the cabinet for endorsement in October 2023 after final review by the Minister of the Ministry of Environment, Forestry and Tourism. By August 2024, such framework and guidelines have not been published yet.

The report also sets out that a national carbon registry and transparency system was developed for carbon credit registration and issuance. The national carbon registry was launched late 2023.

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Laws on climate mitigation and adaptation

Climate Mitigation Laws

Namibia has committed to lowering emissions and transferring to a low-carbon economy as outlined in its NDCs. However, it has not promulgated any specific climate change laws or included any carbon reduction requirements or other climate mitigation measures in any specific legislation.

A National Policy on Climate Change was published in 2011. The policy seeks to outline a coherent, transparent and inclusive framework on climate risk management in accordance with Namibia’s national development agenda, legal framework, and in recognition of environmental constraints and vulnerability. It sets out various guiding principles, as well as strategies relating to specific sectors (sch as access to water, food security, agriculture, etc). One of the objectives of this policy is the development of action and strategies for climate change mitigation. The policy specifically notes that this will be achieved through the development and implementation of renewable energy and energy use efficiency, Clean Development Mechanism (“CDM”) and enhanced carbon sinks.

A thorough framework for planning and implementing climate change mitigation and adaptation measures is provided by the National Climate Change Strategy and Action Plan (“NCCSAP”) (for 2013 – 2020), which identifies (i) sustainable energy and low carbon development and (ii) transportation, as mitigation thematic areas, and highlights the mainstreaming of climate change into policies, legal framework and development planning as a guiding principle of the plan. It is not clear whether a more recent plan is currently under development.

Climate Adaptation Laws

The first objective of the National Policy on Climate Change, 2011 is to develop and implement appropriate adaptation strategies and actions that will lower the vulnerability of Namibians and various sectors to the impacts of climate change

The NCCSAP also sets out action plans relating to the introduction of adaptation measures, with a focus on matters such as disaster management, water resources, and agriculture.

Mechanisms for coordinating disaster response and recovery operations are established by the Disaster Risk Management Act, 2012 (and the accompanying National Disaster Risk Management Policy, 2012), although the aforesaid Act does not specifically include climate-change related occurrences in the definition of “disaster”, and rather makes a broad reference to “natural disasters”.

Policies that are sector-specific, like the National Policy on Integrated Water Resources Management and the National Agriculture Policy, also address adaptation strategies in industries that are susceptible to the effects of climate change.

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Finance legal regime

Broadly speaking, three important pieces of legislation underpin Namibia’s finance legal regime: the Banking Institutions Act, 2023; the [impending] Financial Institutions and Markets Act, 2021 and the Namibia Financial Institutions and Supervisory Authority Act, 2001.

The Banking Institutions Act, 2023 represents a significant update to Namibia’s financial regulatory framework. It specifically aims to address various shortcomings of the previous legislation, ensuring that banking institutions are effectively regulated, as well as introducing comprehensive measures for modern banking supervision and regulation.

The Financial Institutions and Markets Act, 2021 was passed on 7th July 2020 and assented to by the President on 11th June 2021. However, it has not been implemented yet due to ongoing formal public consultations in respect of a certain regulation made under this Act  dealing with the ‘Preservation of Retirement Benefits.’ The overall object of the Financial Institutions and Markets Act, 2021 is to consolidate and harmonise the laws regulating financial institutions, financial intermediaries, and financial markets in Namibia. The Act further aims to repeal the Stock Exchanges Control Act, 1985 (amongst others), which is an outdated piece of legislation that lacks adequate provisions for electronic exchanges or alternative forms of securities.

The Namibia Financial Institution Supervisory Authority Act, 2021 establishes the Namibia Financial Institution Supervisory Authority (“NAMFISA”) as the regulatory authority responsible for the supervision and regulation of financial institutions in Namibia. Its key objectives include ensuring the stability, fairness, and efficiency of the financial system; protecting consumers; and reducing systemic risk. The Act details NAMFISA's powers, duties, and functions, including licensing, monitoring compliance, enforcing regulatory measures, and promoting financial literacy. It plays a pivotal role in overseeing insurance companies, pension funds, micro-lenders, and other non-banking financial institutions.

Merger control

The Competition Act, 2003 sets out the laws regulating mergers and acquisitions in Namibia and is applicable when the requisite change of control occurs – i.e. when one or more undertakings directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another undertaking.

The merger control regime is mandatory, provided the necessary thresholds set out in the Competition Act, 2003 are met. If a merger is implemented in contravention of the Competition Act,  the Competition Commission may make an application to the court for –

a) an interdict restraining the parties involved from implementing the merger;

(2)    an order directing any party to the merger to sell or dispose of in any other specified manner, any shares, interest, or other assets it has acquired pursuant to the merger;

(3)    declaring void any agreement or provision of an agreement to which the merger was subject; or

(4)     a fine not exceeding 10% of the global turnover of the undertaking (in respect of which merger approval is sought) during its preceding financial year.

A transaction will be notifiable to the Competition Commission if two thresholds are met,²⁹ namely, that:

(1) the combined value of the undertakings involved (which can include any combination of assets and/or turnover) is equal to or exceeds N$ 30 million; and

(2) the value of the transferred or target undertaking’s assets or turnover is equal to or greater than N$15 million.

Disposal finance legal regime

The primary legislation on the sale, management, and disposal of assets (such as shares or assets owned by a company) is the Companies Act, 2004. It outlines the framework for corporate governance, including asset management and disposal.

The Companies Act, 2004 read with a particular company’s articles of association and shareholders agreement (if any), set out the procedures to be followed in relation to the sale of shares held in a company by a shareholder to another shareholder or third party. The disposal of shares may be subject to the pre-emptive rights of the remaining shareholders to acquire the shares so being disposed.

Section 236 of the Companies Act, 2004 provides for the disposal of [an] undertaking or the greater part of the assets of a company, which disposal is required to be approved by a general meeting of shareholders.

Further, the Companies Act, 2004 defines “investing activities” as those activities relating to the acquisition and disposal of fixed assets and investments, including advances not falling within the definition of cash. Additionally, the Namibian Stock Exchange (“NSX”) regulations and the Financial Institutions and Markets Act, 2021 contain specific provisions regarding the handling of stocks and other securities.

Joint ventures

Incorporated joint ventures in Namibia are governed by the Companies Act, 2004 and, where relevant, the Competition Act, 2004. These laws ensure that any incorporated joint venture complies with national legal standards and competition regulations.

The Competition Act, 2004 specifically, is designed to safeguard and promote fair competition in the Namibian market, establishing the Namibian Competition Commission to oversee these aspects.

Unincorporated joint ventures are regulated in terms of the agreement by which the unincorporated joint venture was established, in addition to the common law principles of contract law.

_{29. As per Clause 2 of the Determination of Class Mergers to be excluded from Chapter 4 of Competition Act, 2003.}

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Contractual provisions on climate and environmental protection (agreements for natural resource exploitation)

The State grants rights for the exploitation of natural resources through the issuing of licences or permits in terms of the applicable pieces of legislation, including, but not limited to, the Minerals (Prospecting and Mining) Act, 1992, the Petroleum (Exploration and Production) Act, 1991, the Marine Resources Act. 2000, the Aquaculture Act, 2002 and the Forest Act, 2001 and the Water Resources Management Act, 2013.  Entities engaging in natural resource exploitation will be bound by the provisions relating to environmental protection in the applicable legislation and regulations. The common features contained therein may include:

1. Environmental Impact Assessments (“EIAs”):

EIAs are required to be undertaken before the commencement of any activity which has been identified as a “listed activity” in terms of the Environmental Management Act, 2007.

Thus, EIAs are a critical first step in the development of any project. In Namibia, the requirement for conducting EIAs is grounded in both legislation and best practice guidelines within, inter alia, the mining, energy, industrial, agriculture, fishing, and water sector. This legislation includes, inter alia, the Mining (Prospecting and Minerals) Act, 1992, the Electricity Act, 2007, the Petroleum (Exploration and Production) Act, 1991, Marine Resources Act, 2000, the Aquaculture Act, 2002 and the Water Resources Management Act, 2013 The process ensures that potential environmental and social impacts of proposed projects are understood and addressed before the commencement of a particular activity. The Environmental Management Act, 2007 provides the legal framework for EIAs in Namibia, ensuring that all projects comply with the principles of environmental management which are set out in section 3(2) of the Environmental Management Act, 2007, which are as follows:

(a)    renewable resources must be used on a sustainable basis for the benefit of present and future generations;

(b)    community involvement in natural resources management and the sharing of benefits arising from the use of the resources, must be promoted, and facilitated;

(c)    the participation of all interested and affected parties must be promoted and decisions must take into account the interest, needs and values of interested and affected parties;

(d)    equitable access to environmental resources must be promoted and the functional integrity of ecological systems must be taken into account to ensure the sustainability of the systems and to prevent harmful effects;

(e)    assessments must be undertaken for activities which may have a significant effects on the environment or the use of natural resources;

(f)     sustainable development must be promoted in all aspects relating to the environment;

(g)    Namibia’s cultural and natural heritage including, its biological diversity, must be protected and respected for the benefit of present and future generations;

(h)    the option that provides the most benefit or causes the least damage to the environment as a whole, at a cost acceptable to society, in the long term as well as in the short term must be adopted to reduce the generation of waste and polluting substances at source;

(i)     the reduction, re-use and recycling of waste must be promoted;

(j)     a person who causes damage to the environment must pay the costs associated with rehabilitation of damage to the environment and to human health caused by pollution, including costs for measures as are reasonably required to be implemented to prevent further environmental damage;

k)     where there is sufficient evidence which establishes that there are threats of serious or irreversible damage to the environment, lack of full scientific certainty may not be used as a reason for postponing cost-effective measures to prevent environmental degradation; and

(l)     damage to the environment must be prevented and activities which cause such damage must be reduced, limited, or controlled.

2. Sustainable Use Principles:

Sustainable use principles are embedded within the Environmental Management Act, 2007 and various sector specific pieces of Namibian legislation (as set out above) and project agreements to ensure that resource exploitation does not compromise environmental integrity or biodiversity. This involves the utilisation of natural resources in a way that meets current needs without jeopardising the ability of future generations to meet their own needs.

In the context of mining, for example, the Chamber of Mines in Namibia has developed a National Environmental Strategy and Action Plan, which includes sustainable use principles as one of its core tenets. This plan is aimed at reducing the negative environmental impacts of mining while enhancing the benefits of Namibia’s biodiversity and its people.

3. Rehabilitation and Restoration:

Applicable legislation and licence conditions may include requirements in relation to the development of plans for the rehabilitation of exploited areas to ensure long-term environmental health and sustainability. Rehabilitation and restoration of exploited areas are fundamental requirements in Namibia's natural resource sector. These measures are critical to ensuring the long-term health and sustainability of the environment post-extraction.

For example, the Minerals (Prospecting and Mining) Act, 1992 provides that, on the abandonment of a mineral licence, licence holders are required to take all such steps to remedy to the reasonable satisfaction of the Minister of Mines and Energy any damage caused by any prospecting or mining operations carried on by such holder to the surface of, and the environment on, the land in question. The aforesaid Act further provides for procedures to be followed in relation to any pollution to the environment or other damages or losses caused by any activities conducted in terms of the Act.

The National Environmental Strategy and Action Plan for the mining sector further stresses the importance of rehabilitating mining sites concurrently with operations and after mine closure to mitigate long-term environmental impacts. This includes the restoration of landscapes, replanting native vegetation, and ensuring that any waste products are treated and disposed of in an environmentally sound manner.

As another example, the Petroleum (Exploration and Production) Act, 1991 contains extensive provisions relating to the decommissioning of facilities on cessation of production operations, which includes the establishment of t5rust funds by holders of production licences for purposes thereof. Notably, these provisions do not apply in respect of petroleum exploration activities, and any obligations in relation to decommissioning or rehabilitation in connection with such activities may be contained in the relevant licence conditions or the petroleum agreement to be entered into between the licence holder and the Minister of Mines and Energy (such agreement containing the terms and conditions subject to which the relevant petroleum exploration licence has been granted).

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Legal regime on the protection of foreign investments

In terms of Article 99 of the Constitution, foreign investments are to be encouraged within Namibia subject to the provisions of an investment code to be adopted by the Namibian parliament. To this end, the Foreign Investment Act, 1990 was enacted. This Act regulates foreign investments within and into Namibia. Section 3 of the Foreign Investment Act, 1990 provides as follows:

a) Foreign nationals may invest and engage in any business activity in Namibia which any Namibian may undertake.

b) For the purposes of any law governing the establishment and carrying on of any business or the taxation of income, foreign nationals shall be in no different position than Namibians.

c) No foreign national engaged in or intending to commence a business activity in Namibia shall be required to provide for the participation of the Government or any Namibian as shareholder or partner, however, it may be a condition of any licence or authorisation to or any agreement with a foreign national for the grant of rights over natural resources that the Government shall be entitled to or may acquire an interest in any enterprise to be formed for the exploitation of such rights.

d) The Minister of Industrialisation and Trade may, by notice in the Gazette, specify any business or category of business which, in their opinion, is engaged primarily in the provision of services or the production of goods that can be provided or produced adequately by persons domiciled in Namibia. Following such notice, no foreign national shall through the investment of foreign assets become engaged in any business so specified or falling within any category of business so specified.

e) Any law relating to natural resources, or any licence or other authorisation granted under such a law conferring rights for the exploitation of such resources may provide for the granting or enjoyment of such rights to or by persons domiciled in Namibia on terms more favourable than those applicable to foreign nationals.

Foreign investments may specifically be protected by making and registering an eligible investment under the Foreign Investment Act, 1990 and being issued with a “Certificate of Status Investment.” In terms of section 5(1) of the Foreign Investment Act, 1990 read with the relevant determination made in a government gazette, an eligible investment is currently an investment of at least N$ 2,000,000.00 (two million Namibian Dollars) or of such other amount as specified in a Certificate of Status Investment.

The primary benefits of a Certificate of Status Investment are set out below:

(1)  In terms of section 8 of the Foreign Investments Act and notwithstanding the provisions of any other law, the Bank of Namibia is required to make available for purchase, by the holder of a Certificate of Status Investment, freely convertible foreign currency to repay (in accordance with a schedule approved by the Bank of Namibia) loans, interest and service charges, and pay licence fees and royalties in respect of intellectual property employed in connection with the enterprise.

(2)  In terms of section 9(1) of the Foreign Investments Act, and notwithstanding the provisions of any other law, the Bank of Namibia is required to make available for purchase, by the holder of a Certificate of Status Investment, convertible foreign currency which the holder may use without any restriction for the transfer out of Namibia of:

a) the profits of the enterprise;

b) the dividends payable to shareholders ordinarily resident outside Namibia;

c) where the enterprise is sold to any person resident in Namibia, for the transfer out of Namibia of the proceeds of such sale;

d) the proceeds of any capital reduction.

(3) Furthermore, in terms to section 9(2) of the Foreign Investment Act, 1990, no provision of any law relating to exchange control shall apply to foreign currency which is the proceeds of the sale by the holder of a Certificate of Status Investment of the enterprise or any part of the undertaking carried on by the enterprise to a person not ordinarily resident in Namibia. This means that the holder of a Certificate of Status Investment is not required to repatriate the purchase price in terms of the Exchange Control Regulations, 1961.

(4) Regarding expropriation, section 11 of the Foreign Investment Act, 1990  provides that no enterprise or part of an undertaking carried on by an enterprise, or interest in or right over any property forming part of such undertaking shall be expropriated, save in accordance with the provisions of Article 16(2) of the Constitution. Furthermore, where an enterprise is so expropriated, the Government shall pay to the holder of the Certificate of Status Investment just compensation for such expropriation without undue delay and in freely convertible currency.

(5) In terms of section 13 of the Foreign Investment Act, 1990  if a person to whom a Certificate of Status Investment has been issued so elects, such certificate shall provide that any dispute between the holder and the Government in relation to any issue relating to the amount of compensation payable for an expropriation or the validity of the Certificate of Status Investment shall be referred for settlement by international arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law (“UNCITRAL”).

There exists some sector specific restrictions on foreign investments in Namibia. These include, most notably:

(1) restrictions in terms of the Agricultural (Commercial) Land Reform Act, 1995 on foreign nationals' ability (whether directly or indirectly through a legal entity) to acquire ownership of agricultural land or enter into any lease over agricultural land in excess of 10 years;

(2) restrictions in terms of the Communications Act, 2009 on foreign nationals' ability to acquire a majority interest in any enterprise involved in broadcasting services or telecommunications services; and

(3) restrictions stemming from practices in the mining and energy sector, where the relevant Minister, regulator, or state-owned enterprise (such as the NamPower impose conditions of local ownership (ranging between 5% to 30%) on licence holders.

In 2016, the Namibia Investment Promotion Act, 2016 was proposed, which was intended to repeal and replace the Foreign Investment Act. Thereafter, the Namibia Investment Promotion and Facilitation Bill was introduced, and is currently still subject to public stakeholder engagement. Thus, the Foreign Investment Act, 1990 continues to apply to foreign investments. Another bill, the National Equitable Economic Empowerment Bill, 2015, would, if promogulated, have a wide-reaching impact on the Namibian business sector. These pieces of legislation would introduce Namibian-ownership and local content requirements on certain sectors, to be identified by the Minister of Industrialisation and Trade.

Repatriation of Funds

In Namibia, the Bank of Namibia Act, 2020 and its Exchange Control Regulations govern the repatriation of funds, controlling the flow of money in and out of the country. This includes the repatriation of investment profits, dividends, sale proceeds and capital by foreign investors.

Access to International Arbitration

The Arbitration Act, 1965 generally governs arbitration in Namibia and includes provisions which cover the settlement and enforcement of disputes by arbitration tribunals through written arbitration agreements. Given the nature of private arbitration, in particular the fact that private arbitration is  a consensual, private process, parties to an arbitration may also agree to submit a dispute to arbitration in another manner other than as provided for in the Act, such as to the rules set out by the Arbitration Foundation of Southern Africa (“AFSA”) or by setting down its own rules, in which case the principles of common law in relation to arbitration shall apply. The principles of common law would be found in case law relating to arbitration.

In the recent judgment handed down by the Namibian High Court in Orano Demantelment S.A v the United Africa Group (Proprietary) Limited (2024) NAHC MD held that the Recognition and Enforcement of Foreign Arbitral Awards Act, 1977 is applicable to Namibia. Therefore – unless this judgment is appealed, and the appeal is successful – this judgment opens up the door for foreign arbitral awards being capable of recognition and enforcement in Namibia. Arbitral awards can also be recognised and made into a court judgment in South Africa, and thereafter be recognised and enforced as a foreign court judgment in Namibia in terms of the Enforcement of Foreign Civil Judgments Act, 1994.

In terms of the Enforcement of Foreign Civil Judgments Act, judgments of designated countries may be registered and enforced in Namibia. Currently, South Africa is the only designated country for the purposes of the Enforcement of Foreign Civil Judgments Act, 1994 (there being no indication that other countries are to be designated in the near future). Only upon a country being declared a designated country, can a party approach the court to register and enforce such judgment in accordance with the provisions of the Enforcement of Foreign Civil Judgments Act, 1994.

A foreign judgment against any person by any court in a designated country should be lodged with the clerk of the court of the Magistrate’s Court in Namibia, and such clerk shall then register such judgment in the prescribed manner..

Protection Against Expropriation

Article 16(2) of the Constitution provides that the State may expropriate property in the public interest, subject to the payment of just compensation, in accordance with the requirements and procedures laid down by an act of parliament. Expropriation in Namibia is regulated under the Expropriation Ordinance, 1978, a statute pre-dating the Namibian Constitution and its property safeguards. Accordingly, the Expropriation Ordinance, 1978 must be read subject to the provisions of the Constitution, the latter being the supreme law of Namibia.

Simplified, the Expropriation Ordinance provides for the following procedure:

(1)   The Government may, subject to the obligation to pay compensation, expropriate any property for public purposes or appropriate the right to use property temporarily for public purposes.

(2)   The term “public purposes” includes any purposes connected with the administration of the provision of some or other law by an authoritative body.

(3)    The term “property” includes both movable as well as immovable property.

(4) Further, the procedure to expropriate under the Expropriation Ordinance involves the following:

(a) an administrative decision to expropriate;

(b) the service of an expropriation notice on the owner, which must specify the property and the date of transfer of ownership, as well as a compensation amount or a request to the owner to institute a claim for compensation within 60 (sixty) days from the date of such expropriation notice; and

(c) the general principle under law is that the expropriated owner should be compensated for the full extent of the loss.

In the case Kessl v Ministry of Lands Resettlement and Others and Two Similar Cases³⁰ the High Court of Namibia has laid down further requirements as to the fairness of the process, particularly in hearing any person affected by any expropriation procedure.

Standards of Treatment and Protection

Namibia has engaged in Bilateral Investment Treaties (“BITs”) with various countries, emphasizing fair and equitable treatment, full protection, and most favoured nation treatment for foreign investments. These treaties serve as a legal foundation for the standards of treatment of foreign investments in Namibia. Namibia has BITs signed with several countries, some in force (Austria, Spain, Netherlands, Finland, France, Malaysia, Switzerland and Germany) and others signed but not yet in force (Russian Federation, Congo, China, Angola, Vietnam and Cuba), reflecting a commitment to secure and promote foreign investments through a framework that encourages equitable treatment and protection.³¹ Namibia further has double taxation agreements in place with Botswana, France, Germany, India, Malaysia, Mauritius, Romania, the Russian Federation, South Africa, Sweden and the United Kingdom.  

Import/Export Controls and Supply Chain Risks

The Import and Export Control Act, 1994, the Customs and Excise Act, 1998 and the Export Levy Act, 2016 regulates the import and export of goods, including the imposition of duties, taxes, and controls.

In terms of the Import and Export Control Act, 1994, the Minister of Industrialisation and Trade may, whenever it is necessary or expedient in the public interest, by notice in the Government Gazette prohibit the import into or export from Namibia entirely or only subject to such conditions as may be imposed in a permit issued by such Minister of any goods of a class or kind specified in such notice or of any goods other than goods of a class or kind specified in such notice. A permit issued in terms of the aforesaid Act may prescribe the quantity or value of goods which may be imported or exported thereunder, the price at which, the period within which, the port through or from which, the country or territory from or to which and the manner in which the goods may be imported or exported, and such other conditions as the Minister may direct, including any condition relating to the possession, ownership or disposal of goods after the import thereof or to the use to which they may be put.

The Customs and Excise Act, 1998 covers the declaration of goods by persons entering or leaving Namibia, procedures for the inspection and examination of goods and specifics on the operation of state warehouses. It also details the conditions under which goods may be removed in bond within the country or exported, emphasizing customs controls based on risk management techniques to safeguard the supply chain.

From a supply chain risk, anecdotal reports suggest that the Namibian customs authorities may be inefficient and may make mistakes in classifying of goods into categories subject to customs and excise duties.

_{30. 2008 (1) NR 167 (HC).}

_{31. Available at: https://investmentpolicy.unctad.org/international-investment-agreements/countries/145/namibia.}

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Laws on Environmental Impact Assessments

The Environmental Management Act, 2007 read together with the Environmental Impact Assessment Regulations form the bedrock of the environmental impact assessment law in Namibia and provides for public consultation prior to the Environmental Commissioner making a decision whether or not to grant an application for an environmental clearance certificate.

The Environmental Management Act, 2007 is based on international law principles relating to sustainable development and environmental management. This piece of legislation gives effect to Article 95(l) of the Constitution by serving as a framework for the management of the environment and natural resources.

Section 3(2) of the Environmental Management Act, 2007 imposes a duty of care on all citizens to prevent environmental degradation. The objectives of the Environmental Management Act are to prevent or mitigate the significant effects of people’s actions on the environment by ensuring that any so-called “listed activity” performed on land or sea, as the case may be, is carefully considered through an approved impact assessment which must be conducted before the relevant listed activity commences.

Section 27(3) of the Environmental Management Act, 2007 provides  that “[…] a person may not undertake a listed activity, unless the person is a holder of an environmental clearance certificate in relation to that activity”. In terms of section 32(1), a person may apply for the requisite environmental clearance certificate. Section 32(1) provides that “a person who is required to obtain an environmental clearance certificate must, in the prescribed form and manner and on payment of the prescribed fee, apply to the relevant competent authority for an environmental clearance certificate in respect of the listed activity to be undertaken.” Categories of gazetted listed activities include:

(1) Energy generation, transmission, and storage;

(2) Waste management, treatment, handling, and disposal;

(3) Mining and quarrying;

(4) Forestry activities;

(5) Land use and development;

(6) Tourism development;

(7) Agriculture and aquaculture;

(8) Water resource development;

(9) Hazardous substance treatment, handling, and storage;

(10) Infrastructure; and

(11) Other (construction of military demonstration and testing sites; cemeteries, camping, leisure, and recreation sites).

The Environmental Impact Assessment Regulations, 2012 in detail set out the procedures to be followed by the Environmental Commissioner in either granting or rejecting an application for an environmental clearance certificate, as well as the obligations of proponents and environmental assessment practitioners.

Depending on the type of listed activity to be undertaken (and the scale of the listed activity), the Environmental Commissioner, after having screened an application for an environmental clearance certificate, may decide to grant an environmental clearance certificate without an assessment being required or require the applicant to undertake the assessment procedures as set out in the Environmental Management Act, 2007.

The environmental impact assessment comprises a process of identifying, predicting, and evaluating all significant adverse impacts of the proposed activities on the environment, as well as the risks and consequences of such activities and their alternatives and options for mitigation with a view to minimizing negative impacts, maximizing benefits, and promoting compliance with the principles of environmental management.

As part of the application process, proponents are further required to conduct a public consultation process, open and maintain a register of all interested and affected parties in respect of the application, the consideration of all objections and representations made by such parties, the preparation of a scoping report and the granting of an opportunity to such parties to consider the scoping report. Further information in respect of this public participation process has been set out in section 13 below.

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Recognizing the rights and involvement of local communities in resource management decisions is a cornerstone of Namibia's approach to natural resource exploitation. Community involvement ensures that the people most directly affected by resource extraction activities have a say in the decision-making processes and benefit from these activities.

Public participation in environmental decision-making

Further to what has been set out in section 12 above, a public consultation process must be carried out within twenty-one (21) days in respect of an application for an environmental clearance certificate in terms of regulation 21(7) of the Environmental Impact Assessment Regulations.

Under regulation 21(2), the applicant conducting a public consultation process must give notice to all potential interested and affected parties of the application for an environmental clearance certificate by –

a) fixing a notice board at a place conspicuous to the public at the boundary or on the fence of the site where the activity to which the application relates is or is to be undertaken;

b) giving written notice to –

(a) the owners and occupiers of land adjacent to the site where the activity is or is to be undertaken or to any alternative site;

(b) the local authority council, regional council, and traditional authority, as the case may be, in which the site or alternative site is situated;

(c) any other organ of state having jurisdiction in respect of any aspect of the activity; and

c) advertising the application once a week for two consecutive weeks in at least two newspapers circulated widely in Namibia.

When complying with this regulation, the person conducting the public consultation process must ensure that information containing all relevant facts in respect of the application is made available to potential interested and affected parties and consultation by potential interested and affected parties is facilitated in such a manner that all potential interested and affected parties are provided with a reasonable opportunity to comment on the application.

Further, the proponent is required to open and maintain a register of all interested and affected parties in respect of the application.

A registered interested or affected party is entitled to comment in writing, on all written submissions made to the Environmental Commissioner by the applicant responsible for the application, and to bring to the attention of the Environmental Commissioner any issues which that party, believes may be of significance to the consideration of the application, as long as comments are submitted within seven days of notification of an application or receiving access to a scoping report or an assessment report, and the interested and affected party discloses any direct business, financial, personal or other interest which that party may have in the approval or refusal of the application.

The proponent is thereafter required to consider all objections and representations made by such parties and must subject the proposed application to scoping by assessing the potential effects of the proposed listed activity on the environment, whether and to what extent the potential effects can either be mitigated or require further investigation. Thereafter, the proponent will be required to prepare a scoping report and give all interested and affected parties an opportunity to comment on the scoping report. The applicant responsible for an application must ensure that the comments of interested and affected parties are recorded in reports submitted to the Environmental Commissioner. Comments by interested and affected parties on a report which is to be submitted to the Environmental Commissioner may be attached to the report without recording those comments in the report itself.

Public participation prior to granting of licences

Sector-specific legislation may include public notification requirements as part of the application process for a particular licence.

For example, the Electricity Act, 2007, requires that any application for the generation, supply, distribution, transmission, supply, or export of electricity is required to be advertised in the prescribed manner, and that any person may submit an objection in respect of the issuing of such licence to the Electricity Control Board. The Electricity Control Board must consider an application and any objection thereto, and may, for that purpose, arrange for a public hearing of the application at a suitable time and place of which not less than fourteen days’ notice must be given to the applicant and every objector. At such hearing, the applicant and an objector may be represented by a person of the applicant’s or objector’s choice and may lead evidence in support of the application or objection.

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The Nature Conservation Ordinance, 1975 is the foremost legislation on the conservation and protection of nature in Namibia. It provides for the conservation of nature, the establishment of game parks and nature reserves and the control of problem animals. It regulates the hunting, harvesting, possession of, and trade in listed species.

The aforesaid legislation further provides utilisation rights over wildlife to community members living on communal land. In this way, communities are permitted to generate an income from wildlife utilisation, while at the same time encouraging the sustainable use of wildlife resources, in accordance with the principles of community-based natural resource management.

The Protected Areas and Wildlife Management Bill, which has been in the making for over twenty years, is expected to repeal and replace the Nature Conservation Ordinance. Its purpose is to consolidate the Nature Conservation Ordinance and its amendments and to bring the management of protected areas and wildlife management in line with Article 95(l) of the Constitution. However, it remains unclear when this Bill will finally be passed.

Besides Namibia’s domestic environmental laws, Namibia is also party to various international environmental covenants, treaties, conventions, and protocols. In terms of Article 144 of the Constitution, international law becomes binding on Namibia once the country has ratified it. Some of the more well-known international environmental agreements that Namibia has entered into include the 1992 Convention on Biological Diversity (“Biodiversity Convention”), the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), the 1992 United Nations Framework Convention on Climate Change and the more recent Paris Agreement of 2015.

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In terms of section 3 of the Environmental Management Act, the principles of environmental management include, inter alia, that “a person who causes damage to the environment must pay the costs associated with rehabilitation of damage to the environment and to human health caused by pollution, including costs for measures as are reasonably required to be implemented to prevent further environmental damage”.

In addition, section 56(1) of the Environmental Management Act, 2007 provides that the Minister may make regulations relating to - the disposal of certain types of waste. A regulation made under section 56(1) may prescribe a penalty for any contravention of, or failure to comply with any provision thereof, not exceeding a fine of N$100 000 or imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment.³²

Further sector-specific environmental liability laws are included, for example in section 130 of the Minerals (Prospecting and Mining) Act, 1992, section 71 of the Petroleum (Exploration and Production Act), 1991 and section 128 of the Water Resources Management Act, 2013, relating respectively to environmental liabilities arising from the production of petroleum and water pollution control.

_{32. Section 56(2) of the Environmental Management Act, 2007.}

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Corporate governance in Namibia

Corporate governance is regulated in Namibia and is informed by common law, international law, codes of good practice and statute. The principal sources of corporate governance in Namibia are the following:

(1) the Companies Act, 2004 which governs the incorporation and management of companies in Namibia;

(2) the Companies Administrative Regulations, 2010;

(3) the company’s constitutional documentation;

(4) the Namibia Stock Exchange Listing Requirements which applies to public companies listed on the NSX;

(5) the NamCode, the Corporate Governance Code for Namibia, prepared by the NSX;

(6) the common law (derived from case law);

(7) sector-specific legislation and/or codes that regulate corporate governance of entities within the same industry;

(8) the Financial Intelligence Act, 2012 which contains governance provisions applicable to accountable and reporting institutions, for purposes of combating money laundering and the financing of terrorism activities.

Company Constitutional Documentation

The key source of a company’s corporate governance requirements is its constitutional documentation of a company (e.g. memorandum of association and articles of association, as well as, if applicable, its shareholders agreement). The Companies Act, 2004 contains a standard table B set of articles which may be adopted by a private company, however a company may also adopt its own articles, as long as these do not conflict with the provisions of the Companies Act, 2004.

NamCode

The NamCode is founded on international best practices and the King Code of Governance in South Africa, 2009. NamCode’s intention is not to force companies to comply with recommended practices, but rather for companies to “apply or explain.” Directors may choose to apply the recommended practices contained in the NamCode. Should directors opt not to apply the international best practice guidelines provided for in the NamCode, they are to explain their reasoning and motivations for not doing so to their shareholders, to whom they remain accountable in respect of matters relating to general corporate governance. The NamCode is a benchmark against which directors must measure themselves at the behest of their shareholders and other stakeholders.

Chapter 9 of the NamCode contemplates integrated reporting, to allow for a holistic and integrated representation of the company’s performance in terms of both its finances and its sustainability. Integrated reporting, according to the NamCode, should be focused on substance over form and should disclose information that is complete, timely, relevant, accurate, honest, and accessible and comparable with past performance of the company. It should also contain forward-looking information. The integrated report should include both financial and sustainability disclosures.

NSX

The NSX issued its NamCode Directive in 2022, which requires companies listed on the NSX to appoint a social, ethics and sustainability committee (“SES Committee”). A SES Committee is a board committee under Principles C2 – 23 of the NamCode The responsibilities of the SES Committee include:

(1) oversight and reporting on organisational ethics;

(2) responsible corporate citizenship;

(3) sustainable development;

(4) stakeholder relationships;

(5) integrating environmental, social, governance (“ESG”) factors into business strategy and organizational culture operational practices by means of policies and practices in a way that supports the long-term profitability and viability of a company; and

(6) oversight and management of ESG-related risks and opportunities.

Company disclosure requirements

Amendments to the Companies Act, 2004 came into effect in 2023. These amendments impose enhanced reporting obligations on all Namibian companies (enhancing regulation around anti-money laundering and the combatting of terrorist financing). These amendments require companies to file certain information in respect of those persons who hold a beneficial interest in, or have effective control over, the Company.

Access to Information law

In November 2022, the Access to Information Act, 2022 was signed into law but has, however, not been brought into force yet. The Access to Information Act, 2022 seeks to provide for the right of access to information held by public and private entities as well as to provide for the promotion, creation, keeping, organisation, and management of information in a form and manner that facilitates transparency, accountability, good governance, and access to information.

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Section 17 of the Environmental Management Act, 2007 provides that the functions of the Environmental Commissioner includes, inter alia, to conduct inspections for monitoring compliance with the aforesaid Act.

Section 19(3) of the Environmental Management Act, 2007 provides that environmental officers, which may be appointed by the Environmental Commissioner to fulfil his or her functions, may , on the authority of a warrant issued –

a) in order to obtain evidence, enter premises where he or she has reason to believe that any provision of the Environmental Management Act, 2007 has been or is being contravened;

b) direct the person in control of or employed at the premises -

(i)    to deliver any book, record or other document that relates to the investigation, and which is in the possession or under the control of that person;

(ii)     to furnish such information as he or she has with regard to that matter; and

(iii)     to render such assistance as the environmental officer requires in order to enable him or her to perform his or her duties or functions under the aforesaid Act;

c) inspect any book, record or other document and make copies of it or excerpts from it;

d) seize any, material, substance, book, record or other document which is or may be relevant to a prosecution under the aforesaid Act and keep it in his or her custody, but the person from whose possession or control any book, record or document has been taken, may, at his or her own expense and under supervision of the environmental officer concerned, make copies of it or excerpts from it; and

e) take samples of any material or substance seized in terms of paragraph (4), for analysis.

An environmental officer may issue a compliance order to a person whom the environmental officer has reason to believe has contravened the Environmental Management Act, 2007 or has contravened a condition of an environmental clearance certificate.

A compliance order must set out -

(1)     the name of the person to whom the order applies;

(2)     the provision or condition which has been contravened;

(3)     details of the nature and extent of the contravention;

(4)     any steps that are required to be taken and the period within which those steps must be taken;

(5)     any penalty that may be imposed in terms of the aforesaid Act if those steps are not taken;

(6)     the procedure to be followed in lodging an objection to the compliance order with the Minister of Environment, Forestry and Tourism; and

(7)     any other prescribed matter.

Any person who, without good reason, fails or refuses to comply with a compliance order commits an offence and is liable on conviction to a fine not exceeding N$500,000.00 or to imprisonment for a period not exceeding 25 years or to both such fine and such imprisonment.

Part IV of the Environmental Management Act, 2004 provides for the preparation of environmental plans and also provides for annual reporting in respect of such plans and monitoring of compliance with such environmental plan by the Environmental Commissioner. However, the environmental plans only to environmental policies, plans, programmes, and decisions of the various organs of state that exercise functions that may affect the environment or are entrusted with powers and duties aimed at the achievement, promotion, and protection of a sustainable environment. Accordingly, these reporting and monitoring requirements do not relate to non-state organs. Other than that, the Environmental Management Act, 2007 only provides that an environmental assessment is to be conducted for purposes of the application of an environmental clearance certificate, but does not provide for any reporting requirements and, other than the powers of the Environmental Commissioner and the environmental officers to search and conduct monitoring activities, the Environmental Management Act, 2007 does not provide for any specific provisions relating to monitoring of the activities of the holder of the environmental clearance certificate. Conditions in relation to reporting and monitoring may be included as conditions of such environmental clearance certificate, the non-compliance of which may lead to the suspension or cancellation of such certificate.

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The principal source of law relating to the exploitation of natural resources in Namibia is the Namibian Constitution, 1990. In terms of article 100 of the Constitution, all natural resources below and above the surface of the land and in the continental shelf and within the territorial waters and the exclusive economic zone of Namibia belong to the State if they are not otherwise owned.

Various sector-specific pieces of legislation set out the obligations and rights of both the natural resource exploitation company, on the one hand, and the relevant public body, on the other hand.

For example, in relation to mining and prospecting activities, section 2 of the Minerals (Prospecting and Mining) Act, 1992 provides that all rights in relation to the reconnaissance, prospecting for or mining and sale or disposal, and the exercise of control over any mineral or group of minerals, vest in the State, notwithstanding any right of ownership of any person in relation to any land in, on or under which such minerals are found. In terms of section 3(1)(a) of the Minerals (Prospecting and Mining) Act, 1992, no person may carry out any reconnaissance operations, prospecting operations, or mining operations in, on or under any land in Namibia, except under and in accordance with a mining claim or a mineral licence.

It must be noted that the holder of a mineral licence granted and issued in terms of the Minerals (Prospecting and Mining) Act, 1992 essentially holds a bundle of rights against and obligations towards the State, but that such rights are not rights in land per se. Since ownership of private land does not vest a landowner with ownership of the minerals found on the land, it is not necessary for a mineral licence holder to be the owner or the lessee of private land on which exploration or mining operations are to take place. The bundle of rights held by a mineral licence holder includes the specific rights to:

(1) conduct exploration and mining operations within the licence area; and

(2) to erect accessory works within the licence area, subject to the prior written approval by the Mining Commissioner.

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Effective enforcement sanctions are essential for ensuring compliance with laws and regulations, deterring unlawful conduct, and promoting accountability in Namibia. Criminal, civil, and administrative enforcement mechanisms are employed to address different types of violations and infringements. However, these enforcement measures are subject to various limitations, which shape their applicability and effectiveness.

Criminal Enforcement Sanctions

Criminal enforcement sanctions in Namibia are designed to punish individuals who violate criminal laws and norms. The Criminal Procedure Act, 1977 outlines the procedures for investigating and prosecuting criminal offences, including arrest, trial, and sentencing. Penalties for criminal offences range from fines and imprisonment to community service and probation (depending on the severity of the offence).

Despite the importance of criminal enforcement, limitations such as justiciability and standing may restrict access to justice for certain individuals or groups. Additionally, the principle of finality ensures that criminal judgments are not subject to endless appeals, contributing to legal certainty and the preservation of judicial resources.

Civil Enforcement Sanctions

Civil enforcement sanctions are used to resolve disputes between parties and provide remedies for civil wrongs or breaches of legal obligations. The Namibian legal system allows individuals and entities to seek civil remedies through litigation in the courts. Civil enforcement measures include monetary damages, injunctions, specific performance, and declaratory relief.

However, limitations such as standing, and justiciability may affect the adjudication of civil disputes. For example, certain categories of courts may only have jurisdiction to adjudicate on matters with a claim up to a certain maximum value  (see section 5 of this Toolkit). Additionally, the principle of exhaustion requires parties to pursue available administrative remedies before seeking judicial intervention in civil matters.

The doctrine of effectiveness further provides that a court’s jurisdiction depends upon the power of the court to give an effective judgment, meaning that a judge has no right to pronounce a judgment, if he cannot enforce it within his or her own territory. This doctrine also places a limitation on matters which are merely academic of nature.

Administrative Enforcement Sanctions

Administrative enforcement sanctions are employed by government agencies to enforce regulatory laws and ensure compliance with administrative rules and standards. Regulatory bodies in Namibia, such as the Environmental Commissioner's Office, the Namibia Financial Institutions Supervisory Authority (“NAMFISA”), and the Ministry of Labour enforce administrative regulations through inspections, licensing requirements, and administrative penalties.

Administrative decisions may be subject to judicial review, ensuring that they comply with legal principles and procedural fairness.

Advisory Opinions

An advisory opinion may be sought from a regulatory authority, such as the Namibian Competition Commission or the Namibia Revenue Authority. However, in the event that the advisory opinion provided by the relevant regulatory authority is incorrect in law, the person or entity which so requested such advisory opinion (and acted upon it) cannot rely on it, as the prevailing law will prevail regardless of the regulatory authority’s advisory opinion. On the determination of a criminal sanction, however, the offender can cite the advisory opinion as a mitigating factor that there was no criminal intent on the part of the offender to violate the applicable law.

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Labour legal regime

The Namibian labour laws are principally constituted both by the Roman-Dutch Common Law and the Labour Act, 2007. Accordingly, there are two principal legal sources to any employment relationship, being:

a) the contractual law aspect, mainly governed by the common law, but affected by the provisions of the Labour Act, 2007; and

b) the employment law aspect, governed extensively by the Labour Act, 2007 and which overrides the contract entered into between an employer and an employee to the extent that it is inconsistent with the Labour Act, 2007.

Common Law

The Common Law still regulates the very basic aspects and assumptions underlying the rights and duties between an employer and an employee. Since, historically, an employment contract was classified as a lease of personal services, these Common Law rights and duties are the following:

(1)     the employee must personally perform his services;

(2)     the employee must serve the employer competently;

a) the employee must act in good faith towards the employer;

b) the employee must accept lawful and reasonable orders from the employer;

c) the employer must provide safe working conditions for the employee; and

d) the employer must pay the employee the agreed remuneration.

Labour Act, 2007

The Labour Act, which is a comprehensive piece of legislation, regulates the following principal matters under the following headings:

(1)     fundamental rights, which include the prohibition of child labour, forced labour, discrimination and sexual harassment,  and the freedom of association in the workplace;

(2)     basic conditions of employment;

(3)     health, safety, and welfare of employees;

(4)     unfair labour practices;

(5)     regulation of trade unions and employer organisations;

(6)     strikes and lock-outs;

(7)     prevention and resolution of disputes through conciliation and arbitration;

(8)     labour institutions, which include the:

(a) Labour Advisory Council;

(b) Committee for Dispute Prevention and Resolution and Essential Services Committee;

(c) Wages Commission;

(d) Labour Court;

(e) Labour Commissioner; and

(f) Labour Inspectorate.

It must be noted that the Labour Act, 2007 constitutes a substantial body of law governing all employment relationships in the Republic of Namibia, with a specific emphasis on the rights of the employee and basic conditions of employment. It is the principal and most important statute on employment matters in Namibia.

Various regulations have been made under the predecessor legislation to the Labour Act, which remain in force. The most important of these are the Regulations on the Health and Safety of Employees at Work, 1997 which regulate various workplace and machinery safety matters.

Related Laws

The following laws are also related to employment matters:

(1)    The Social Security Act, 1994, which inter alia provides for the payment of maternity leave benefits, sick leave benefits, medical benefits, pension benefits and death benefits to employees, and the establishment of relevant funds in this respect and the establishment of the Social Security Commission.

(2)     The Employee’s Compensation Act, 1941, which consolidates the laws relating to compensation for disablement caused by accidents to or industrial diseases contracted by employees in the course of their employment, or for death resulting from such accidents and diseases.

(3)     The Affirmative Action (Employment) Act, 1998, which seeks to achieve equal opportunity in employment by, inter  alia, the establishment of the Employment Equity Commission, the redress through appropriate affirmative action plans the conditions of disadvantage in employment experienced by persons in designated groups arising from past discriminatory laws and practices, and to institute procedures to contribute towards the elimination of discrimination in employment.

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Energy legal regime

Article 95(l) of the Constitution sets out the principles of state policy of Namibia. Article 95(l) confers responsibility on the government to “promote the welfare of the people by adopting policies aimed at (…) maintaining the ecosystems and biological diversity and utilising natural resources on a sustainable basis for the benefit of all Namibians, both present and future”. The government is thus obligated to adopt policies that will lead to the conservation of energy resources for future generations.

The Electricity Act, 2007

The Electricity Act, 2007 is the primary legal instrument for the provision of electricity in Namibia. The Electricity Act, 2007 gave effect to the White Paper on Energy Policy, 1998. The Electricity Act, 2007 provides for the establishment of the Electricity Control Board (“ECB”) as the regulatory authority for the electricity sector.

The ECB has the duty to oversee the functioning of the electricity sector and the security of supply and to promote private-sector investments in the electricity sector. The ECB is further empowered to administer tariffs and licences. Although the Electricity Act, 2007 is predominantly administrative, the Act establishes a foundation for electricity-related activities, including the application for and granting of electricity generation, supply, transmission, distribution, and export licences (with the introduction of a storage licence also being contemplated in the near future). However, the final decision as to whether a licence should be granted lies with the Minister of Mines and Energy.

Namibia does not have a specific piece of legislation which relates to the development of renewable energy projects, or which introduces special revenue benefits for these projects. Section 43 of the Electricity Act, 2007 empowers the Minister to implement regulations for the installation and use of renewable energy technologies. This empowering provision is not sufficient per se to encourage renewable energy generation. However, it is a good place to start in encouraging the use of renewable energy technologies needed for the development of renewable energy sources such as green hydrogen. Further, the introduction of net metering regulations and a modified single buyer model which allows for large consumers to obtain up to 30% of their total electricity supply from an independent power producer has also promoted the establishment of renewable energy projects in Namibia.

The Electricity Act, 2007 may in the near future be repealed and replaced by the new Electricity Bill, 2019 and the Namibia Energy Regulatory Authority Bill, 2019.

Draft Gas Bill, 2001

Namibia’s Draft Gas Bill, 2001 is designed to promote the establishment of a gas transportation and distribution network in the country, both for domestic supply and export purposes. The Draft Gas Bill makes provision for the establishment of a national gas regulator as well as a system of licensing for the gas industry. The Draft Gas Bill defines gas as “all hydrocarbon gases transported by pipeline, including but not limited to natural gas, artificial gas, hydrogen rich gas, methane rich gas, synthetic gas, coal bed methane gas, liquefied natural gas, compressed natural gas, regasified liquid natural gas or any combination thereof”. It is important to note that the Draft Gas Bill is yet to be signed into law and promulgated.

Environmental Management Act, 2007

The construction of facilities for the generation, supply, distribution, transmission, or export of electricity is identified as a listed activity under the Environmental Management Act, in terms of which an environmental clearance certificate is required to be obtained.

The Petroleum (Exploration and Production) Act, 1991

The Petroleum (Exploration and Production) Act, 1991 regulates the reconnaissance, exploration, production, and disposal of, and the exercise of control over, petroleum. Licences granted in terms of the aforesaid Act are subject to the provisions contained therein, as well as the provisions contained in the petroleum agreement which is entered into by the Minister of Mines and Energy, on behalf of the State, and the licence holders.

Green Hydrogen

There is no specific piece of legislation which governs the production, storage, transport, and sale of green hydrogen. Instead, the sector is regulated by the applicability of a range of different remedial statutes, each relating to a particular portion or activity of the production of green hydrogen.

In the Namibia Green Hydrogen and Derivatives Strategy, 2022, the Ministry of Mines and Energy has undertaken to enact a so-called “Synthetic Fuels Act”. The envisaged Synthetic Fuels Act will define standards that conform to international guidelines to reduce operational uncertainty for developers and set quality levels to comply with international export market requirements. It is also understood that the Synthetic Fuels Act will define oversight activities, for example, transparent access to land and permit processes for renewables and green hydrogen projects that guarantee fair treatment to investors and local populations while protecting the environment and ensuring safety, amongst others.

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Dispute resolution law and framework

Namibia's legal system provides mechanisms for the resolution of disputes arising from administrative actions, expropriation of property rights by the state, and lawsuits brought against projects both through judicial processes and alternative dispute resolution.

Annulment and Cancellation of Exploration or Exploitation Permits

The Minerals (Prospecting and Mining) Act, 1992 and the Petroleum (Exploration and Production) Act, 1991 govern the issuance, suspension, and cancellation of licenses in Namibia for mineral and petroleum exploration and exploitation (by way of mining and production), respectively.

In terms of section 55 of the Minerals (Prospecting and Mining) Act, the cancellation of mineral licences occurs where licensees fail to comply with the conditions of their licence or, in the case of a company or a close corporation, is wound up. The aforesaid section requires that the Minister of Mines and Energy by notice in writing informs the relevant mineral licence holder of his or her intention to cancel such licence and provides the mineral licence an opportunity to make the representations setting out the reasons why the relevant licence should not be cancelled or which steps had been taken by the mineral licence older to remedy the failure in question or to prevent the failure from being repeated during the currency of the mineral licence.

Section 19 of the Petroleum (Exploration and Production) Act, 1991 and section 32 of the Electricity Act, 2007 include similar provisions in relation to the cancellation of licences issued in terms thereof.

The Environmental Management Act, 2007 provides that the Environmental Commissioner may, by notice to the holder of the environmental clearance certificate, suspend or cancel an environmental clearance certificate if the holder thereof has contravened any condition of the certificate, has contravene the aforesaid Act or is convicted of an offence in terms of the Act.

Should the relevant licence holder be aggrieved by the decision of the relevant Minister to cancel their licence, such aggrieved person may be entitled to launch review or appeal proceedings in accordance with the relevant piece of legislation or pursuant to article 18 of the Constitution, which requires administrative bodies and officials to act fairly and reasonably and to comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, failing which an aggrieved person shall have the right to seek redress before a competent court.

Expropriation of Property Rights by the State

Article 16(2) of the Constitution allows for the State to expropriate property in the public interest, subject to the payment of just compensation, and provided this occurs in accordance with the requirements and procedures laid down by an act of parliament. Expropriation in Namibia is regulated under the Expropriation Ordinance, 1978, subject to Article 16(2) of the Constitution. See section 11 of this Toolkit for a more detailed description of the procedures to be followed by the State in expropriating any property rights.

Should a party so being expropriated be aggrieved by such decision, such aggrieved person may be entitled to launch review or appeal proceedings pursuant to article 18 of the Constitution, which requires administrative bodies and officials to act fairly and reasonably and to comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, failing which an aggrieved person shall have the right to seek redress before a competent court.

Lawsuits Brought Against Projects

Court proceedings may be lodged against a project on various grounds, including on contractual grounds (e.g. by a service provider or a customer) or in the form of an interdict (e.g. to refrain the project company from conducting certain activities, such as pollution or trespassing on one’s property) or on delictual basis (e.g. to claim for losses and damages caused by the project company to the plaintiff). These court proceedings will be informed by common law, as well as relevant legislation (such as, for example, the Environmental Management Act, 2007 or the Minerals (Prospecting and Mining) Act, 1992) and by the contractual provisions of any agreement entered into by the project company.

In respect of the latter, it is important to note that Namibian subscribes to the doctrine of “pacta sunt servanda”, meaning “agreements must be kept”. Namibian courts will enforce all provisions of an agreements, as long as these are not illegal or contrary to good morals. The doctrines of equity or fairness therefore do not apply in Namibia.

Types of Alternative Dispute Resolution (“ADR”)

Generally, ADR takes one of three forms: conciliation, mediation, and arbitration. All three of these forms of ADR are recognised under Namibian law. The High Court Amendment Act, 2013 laid the basis for the introduction of ADR initiatives in Namibia’s High Court civil practice by empowering the judge-president of the High Court, with the approval of the president of the Republic, to make rules to regulate compulsory ADR mechanisms in certain causes and matters that are before the court, and prescribe therein that (1) a judge may order the parties to refer their dispute to any of the prescribed ADR mechanisms; and (ii) it is only when the ADR is unsuccessful and a certificate in that behalf is issued, that the parties or any of them may set the matter down for hearing or trial before the High Court.

Mediation is a process by which a neutral third party, a mediator (who may or may not be a judge), assists the parties in negotiating a possible settlement of their dispute without going to trial. Unlike a trial judge, the mediator does not determine who is at fault in the dispute. ADR is much more flexible and informal than the trial process with the focus being on moving forward in a way that meets the disputing parties’ underlying interests.

In terms of Practice Directive 19(5) of the High Court of Namibia, the Judge-President of the High Court of Namibia has prescribed compulsory ADR in certain types of cases including: insurance claims, medical negligence, professional negligence claim against a legal practitioner, building contract claims, loan default claims, motor vehicle accident claims, and defamation. Accordingly, court-connected mediation has been introduced into the High Court.

Arbitration is a private agreement between parties to a justiciable dispute to resolve it at a forum of their choice instead of recourse to the courts. The parties may or may not choose to have the outcome of that process (arbitral award) made an order of court. Arbitrations are regulated by the Arbitration Act, 1965, in addition to such arbitration rules which may have been agreed upon in the relevant contractual arrangements between private parties (as long as these are not inconsistent with the provisions of the Arbitration Act, 1965).

In the event that another Act of Parliament provides for its own arbitration rules, the provisions of the Arbitration Act, 1965 shall not apply to any such arbitration in so far as the Arbitration Act, 1965 is excluded by or is inconsistent with that other law or is inconsistent with the regulations or procedure authorised or recognized by that other law.

The Labour Act, 2007 also requires the resolution of labour disputes through mediation and arbitration, principally by Government mediators and arbitrators, but parties to a labour dispute may agree on private arbitration.

Transparency and Corruption Risk

Namibia has enacted several laws and established institutions to combat corruption and enhance transparency.

In November 2022, the Access to Information Act, 2022 was signed into law but has, however, not been brought into force yet. The Access to Information Act, 2022 seeks to provide for the right of access to information held by public and private entities as well as to provide for the promotion, creation, keeping, organisation, and management of information in a form and manner that facilitates transparency, accountability, good governance, and access to information.

Thus, both public and private institutions are now duty-bound to proactively make information available upon request to the extent that such information is not otherwise confidential or subject to protection.

Further, Article 94A of the Constitution requires the State to put in place administrative and legislative measures necessary to prevent and combat corruption, including the establishment of an Anti-Corruption Commission.

In 2003, the Namibian Parliament enacted the Anti-Corruption Act, 2003 which establishes the Anti-Corruption Commission. Section 3 of the Act outlines the functions of the Anti-Corruption Commission. In terms of section 50(1), the Anti-Corruption Act applies to Namibian citizens, persons domiciled and permanently resident in Namibia, as well as  any offences committed outside Namibia.

According to the 2023 Corruption Perceptions Index published by Transparency International, Namibia scored 49 out of 100, and is ranked 59 out of 180 (on a scale of 0 (highly corrupt) to 0 (very clean)).

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The Environmental Management Act, 2007 provides that the Environmental Commissioner may, by notice to the holder of the environmental clearance certificate, suspend or cancel an environmental clearance certificate if the holder thereof has contravened any condition of the certificate, has contravene the aforesaid Act or is convicted of an offence in terms of the Act. The Environmental Management Act, 2007, however does not contain any liability or compensation provisions, as these will be included in the legislation which regulates the relevant listed activity being conducted and in respect of which an environmental clearance certificate is required to be obtained in terms of the Environmental Management Act, 2007.

For example, the Minerals (Prospecting and Mining) Act, 1992 includes provisions for the minimisation of environmental impact and the rehabilitation of mining sites after the cessation of mining activities. Section 130 of the Minerals (Prospecting and Mining) Act, 1992 sets out the liability of mineral licence holders for pollution of the environment or other damages or losses caused. It provides that when in the course of any reconnaissance operations, prospecting operations or mining operations carried on under any mineral licence issued in terms of the aforesaid Act, any mineral or group of minerals is spilled in the sea or on land or in any water on or under the surface of any land or the sea or such land or water is otherwise polluted or any plant or animal life, whether in the sea, other water in, on or under land, is endangered or destroyed or any damage or loss is caused to any person, including the State, by such spilling or pollution, the holder of such licence or mining claim shall forthwith report such spilling, pollution, loss or damage to the Minister of Mines and Energy and take at his or her own costs all such steps as may be necessary in accordance with good reconnaissance practices, good prospecting practices or good mining practices or otherwise as may be necessary to remedy such spilling, pollution, loss or damage. If this is not done within such period as the Minister of Mines and Energy may deem in the circumstances to be reasonable, the Minister may direct by notice in writing addressed and delivered to such holder to take within such period as may be specified in such notice such steps as may be so specified in order to remedy the spilling, pollution or damage or loss, and the Minister may, if such holder fails to comply with such directions to the satisfaction of the Minister within the period specified in such notice or such further period as the Minister may on good cause shown allow in writing, cause such steps to be taken as may be necessary to remedy such spilling, pollution or damage or loss and recover in a competent court the costs incurred thereby from such holder.

A similar provision is contained in section 71 of the Petroleum (Exploration and Production) Act, 1991. This Act further in

Part XA include detailed provisions relating to the decommissioning of facilities on cession of production operations, and the obligation to establish trust funds for purposes of funding any decommissioning plans. These obligations are, however, only applicable to holders of petroleum production licences, and not petroleum exploration licences, although substantial activities (such as the drilling of exploration wells) are undertaken during the exploration phase.

The Water Resources Management Act, 2015 is another important piece of legislation. It focuses on the management and protection of Namibia's water resources. It includes provisions related to the prevention of pollution and degradation of water bodies and outlines the requirements for the remediation of contaminated water sources. In terms of section 83 of this Act, parties responsible for polluting water resources can be held liable and may be required to cover the costs of remediation or face penalties.

Further, section 128 of the Water Resources Management Act, 2015 provides that on the conviction of a person for an offence under the aforesaid Act, the court by which the person is convicted -

(a)    upon a written request of a person who has suffered any damage arising from the commission of the offence; or

(b)    upon a written request of the Minister responsible for water, where damage arising from the commission of the offence has been caused to a water resource or its dependent ecosystems,

may, after enquiry into the nature and extent of the damage, order the person convicted to pay, in addition to any other penalty that may be imposed, compensation to the person for the damage suffered or, in the case of damage to a water resource, compensation to the Minister representing the actual or expected cost of restoring or rehabilitating the water resource or its dependent ecosystems.

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Section 1

• Namibia Green Hydrogen Derivatives Strategy, 2022

• Electricity Act, 2007

• Electricity Regulations: Administrative Rules

• Electricity Regulations: Technical Rules

• Environmental Management Act, 2007

• Water Resources Management Act, 2013

• Hazardous Substances Ordinance, 1975

• Atmospheric Pollution Prevention Ordinance, 1976

• Synthetic Fuels Act

Section 2

• Paris Agreement

• United Nations Framework Convention on Climate Change (UNFCCC)

• Namibia’s Nationally Determined Contribution, First Update, 2021

• Namibia’s Nationally Determined Contribution, Second Update, 2023

• Nationally Appropriate Mitigation Action on Rural Development through Electrification with Renewable Energies

• Off-Grid Energisation Master Plan

Section 3

• Second Update of Namibia’s National Determined Contribution, 2023

Section 4

• Constitution of the Republic of Namibia

Section 5

• High Court Act, 1990

• Supreme Court Act, 1990

• Labour Court Act, 1992

• Labour Court Act, 2007

• Magistrates’ Courts Act, 1944

• Community Courts Act, 2003

• Environmental Management Act, 2007

Section 6

• Namibian Constitution

• Environmental Management Act, 2007

• Environmental Impact Assessment Regulations, 2012

• Atmospheric Pollution Prevention Ordinance, 1976

• Namibia Vision 2030

• Fifth National Development Plan (2017/18 – 2021/22)

• National Policy on Climate Change, 2011

• Harambee Prosperity Plan II (2-21-2025)

• National Agricultural Policy, 1995

• National Renewable Energy Policy, 2017

• National Disaster Risk Management Policy, 2012

• Climate Change Strategy and Action Plan (2013 -2020)

• Electricity Act, 2007

• National Renewable Energy Policy, 2017

• National Independent Power Producer Policy of Namibia, 2018

• Net-Metering Rules, 2023

• Modified Single Buyer Market Rules, 2022

• Minerals (Prospecting and Mining) Act, 1992

• Petroleum (Exploration and Production) Act, 1991

Section 7

• Environmental Management Act, 2007

• National Climate Change Policy, 2011

• United Nations Framework Convention on Climate Change

• Kyoto Protocol

• Paris Agreement

• First Update of Namibia’s Nationally Determined Contributions, 2021

Section 8

• National Policy on Climate Change, 2011

• National Climate Change Strategy and Action Plan (2013 – 2020)

• Disaster Risk Management Act, 2012

• National Disaster Risk Management Policy, 2012

• National Policy on Integrated Water Resources Management, 2010

• National Agriculture Policy, 1995

Section 9

• Namibia Financial Institution Supervisory Authority Act, 2001

• Banking Institutions Act, 2023

• Financial Institutions and Markets Act, 2021

• Competition Act, 2003

• Companies Act, 2004

Section 10

• Environmental Management Act, 2007

• Mining (Prospecting and Minerals) Act, 1992

• Electricity Act, 2007

• Petroleum (Exploration and Production) Act, 1991

• Marine Resources Act, 2000

• Aquaculture Act, 2002

• Water Resources Management Act, 2013

• National Environmental Strategy and Action Plan

Section 11

• Namibian Constitution

• Foreign Investments Act, 1990

• Import and Export Control Act, 1994

• Customs and Excise Act, 1998

• Export Levy Act, 2016

• Expropriation Ordinance, 1978

• Arbitration Act, 1965

• Namibia Investment Promotion Act, 2016

• Namibia Investment Promotion and Facilitation Bill

• National Equitable Economic Empowerment Bill, 2015

• Agricultural (Commercial) Land Reform Act, 1995

• Bank of Namibia Act, 2020

• Exchange Control Regulations, 1961

• Enforcement of Foreign Civil Judgments Act, 1994

• Recognition and Enforcement of Foreign Arbitral Awards Act, 1977

• Orano Demantelment S.A v the United Africa Group (Proprietary) Limited (2024) NAHC MD

Sections 12 and 13

• Environmental Management Act, 2007

• Environmental Impact Assessment Regulations, 2012

Section 14

• Nature Conservation Ordinance, 1975

• Protected Areas and Wildlife Management Bill

• 1992 Convention on Biological Diversity

• 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora

• 1992 United Nations Framework Convention on Climate Change

• 2015 Paris Agreement

Section 15

• Environmental Management Act, 2007

Section 16

• Companies Act, 2004

• Companies Administrative Regulations, 2010

• Namibia Stock Exchange Listing Requirements

• NamCode

• Financial Intelligence Act, 2012

• Access to Information Act, 2022

Section 17

• Environmental Management Act, 2007

Section 18

• Namibian Constitution

• Minerals (Prospecting and Mining) Act, 1992

Section 19

• Criminal Procedure Act, 1997

Section 20

• Labour Act, 2007

• Social Security Act, 1994

• Employee’s Compensation Act, 1941

• Affirmative Action (Employment) Act, 1998

Section 21

• Electricity Act, 2007

• Electricity Bul, 2019

• Namibia Energy Regulatory Authority Bill, 2019

• Draft Gas Bill, 2001

• Environmental Management Act, 2007

• Petroleum ( Exploration and Production) Act, 1991

• Namibia Green Hydrogen and Derivatives Strategy, 2022

• Synthetic Fuels Bill

Section 22

• Minerals (Prospecting and Mining) Act, 1992

• Petroleum (Exploration and Production) Act, 1991

• Namibian Constitution

• Expropriation Ordinance, 1978

• Environmental Management Act, 2007

• Arbitration Act, 1965

• Labour Act, 2007

• Access to Information Act, 2022

• Anti-Corruption Act, 2003

Section 23

• Environmental Management Act, 2007

• Minerals (Prospecting and Mining) Act, 1992

• Petroleum (Exploration and Production) Act, 1991

• Water Resources Management Act, 2015

Section 23

• Namibian Constitution

• Government of the Republic of Namibia and Others v Mwilima and Others (SA 29 of 2001) [2002] NASC 8

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In terms of Article 144 of the Constitution, international law becomes binding on Namibia once the country has ratified it by the enactment of a domestic law. Article 144 provides that “[…] 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.”

International law is also one of the sources of Namibian law. This was confirmed by the Supreme Court in the case of Government of the Republic of Namibia and Others v Mwilima and Others,³³ where the Supreme Court referred to Article 144 as a “special mechanism” that introduces international treaties such as the International Covenant on Civil and Political Rights (“ICCPR”) into the law of Namibia. Nevertheless, international law has to conform to the Constitution in order to be valid. This means that, whenever a treaty provision or any other rule of international law is inconsistent with the Constitution, the Constitutional provision will prevail.

_{33. (SA 29 of 2001) [2002] NASC 8 (7 June 2002).}

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Within the context of energy regulation, the current energy policies reveal an intention to develop renewable energy, however, these laws are not sufficient for the development of other forms of renewable energy such as green hydrogen. This is because they not only fail to define how oversight would be exercised, but also fail to incentivise the development of the sector and to provide the means to fast-track approval processes.

Furthermore, the current framework does not cater for hydrogen technology and infrastructure, which would support the whole value chain. For instance, within the existing impact assessment framework, green hydrogen projects (unlike solar power projects) carry the risk of hydrogen explosions, pollution of water resources and ecological damage to habitats as a result of land use – especially as the hydrogen infrastructure is currently not subsumed under the existing environmental impact assessments. To avert these legislative paucities, the Namibian government has undertaken to enact a so-called “Synthetic Fuels Act”, further details of which are contained in section 21 of this Toolkit.

In addition to the above, Namibia does not have any climate change legislation or legislation which deals with the evaluation and monitoring of impacts relating to ESG (environmental, social, governance) factors emanating from the activities of corporates. The development of mechanisms such as the carbon market is however underway in Namibia.

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