Namibia Investment Promotion Act, 2016
Act 9 of 2016
- Published in Government Gazette no. 6110 on 31 August 2016
- Assented to on 12 August 2016
- Not commenced
- [This is the version of this document from 31 August 2016 and includes any amendments published up to 6 October 2022.]
Part 1 – Introductory provisions
1. DefinitionsIn this Act, unless the context otherwise indicates -“approval” means approval of an investment proposed by a foreign investor in terms of this Act;“business activity” means any activity carried out in Namibia -(a)that involves the commitment of capital, the expectation of gain or profit and the assumption of risk; and(b)that creates a contribution to the economic development of Namibia;“enterprise” means any organised business undertaking, legally established in Namibia or any state other than Namibia, as the case requires;“expansion of investment”, for the purposes of the definition of “investment”, includes -(a)a major expansion of facilities beyond the original investment plan or size of a pre-existing investment so as to require new approvals under applicable law; and(b)an expansion of an investment into new business sectors not included in the original proposal or the previous activities of an investment;“expropriation” means the expropriation of property referred to in Article 16(2) of the Namibian Constitution;“fair market value” means the estimated amount for which a property exchanges on the date of valuation between a willing buyer and a willing seller in an arm’s-length transaction;“foreign investor” means -(a)a natural person who is not a Namibian that has made or is seeking to make an investment into Namibia; or(b)a company incorporated, registered or constituted in accordance with the laws of -(i)Namibia; or(ii)any country other than Namibia,that is not directly or indirectly owned or controlled by a Namibian and that has made or is seeking to make an investment into Namibia in terms of this Act;“freely convertible currency” means any currency designated as such by the Bank of Namibia established by section 2 of the Bank of Namibia Act, 1997 (Act No. 15 of 1997);“interest rate” means the percentage rate to be paid by reference to the LIBOR (London Interbank Offered Rates) rate;“investor” when used without a reference to foreign or Namibian, includes both foreign and Namibian investors;“investment” means -(a)any enterprise -(i)lawfully established, acquired or expanded by an investor in accordance with the laws of Namibia; and(ii)that carries out a business activity through a substantial operation in accordance with the investment proposal and the nature of the business in Namibia; or(b)any enterprise in Namibia that an investor is seeking to -(i)establish, acquire, merge with or expand, whether through the constitution, maintenance or acquisition of a juridical person inside Namibia or outside Namibia;(ii)merge with another enterprise inside Namibia or outside Namibia; or(iii)acquire shares, debentures or other ownership instruments of directly or indirectly;(c)the acquisition by any means of any license, permit or concession issued by the State directly related to the operation of an investment in Namibia, including such instruments relating to the exploration or exploitation of natural resources; or(d)the acquisition by any means of a minority ownership interest or joint venture interest in accordance with this Act, in relation to any of the preceding paragraphs, but such interest must constitute more than 10% of the share of the company and the investor exercises effective management, or influence on the management, of the investment,but for the purposes of this definition, a foreign enterprise may not regard the following assets as assets for the purposes of the definition of an investment, though they are considered as assets for enterprises incorporated in Namibia -(i)shares, stocks, debentures and other equity instruments of the enterprise or another enterprise;(ii)a debt security of another enterprise;(iii)loans to an enterprise;(iv)movable or immoveable property and other property rights such as mortgages, liens or pledges;(v)claims to money or to any performance under contract having a financial value;(vi)copyrights, know how, goodwill and industrial property rights such as patents, trademarks, industrial designs and trade names, to the extent they are recognised under the law of Namibia;(vii)returns such as profits, dividends, royalties and income yielded by an investment;(viii)rights or concessions conferred by law or under contract, including licenses to cultivate, extract or exploit natural resources; and(ix)long term leases over land or property,and investment does not include -(aa)assets that are of a personal nature, unrelated to any business activity;(bb)debt securities issued by a government or loans to a government;(cc)portfolio investment that constitutes less than 10% of the share of the company or otherwise does not give the investor the possibility to exercise an effective management or influence on the management of the investment;(dd)claims to money or commission that arise solely from commercial contracts for the sale of goods or provision of services by a national or enterprise outside Namibia into the territory of Namibia, or the extension of credit in connection with a commercial transaction, or any other claims to money that do not involve the kind of interests in an enterprise set out above; or(ee)claims to money for the performance of services or provision of goods to any branch of government procured through tender, contract including public-private partnership agreements or any other means;“Minister” means the Minister responsible for investment;“Ministry” means the Ministry administering investment matters;“measure” means any form of legally binding act of State directly affecting an investor or an investment, and includes any law, regulation, procedure, requirement, judicial decision, binding executive decision and agreement, unless otherwise excluded from the scope of this Act;“Namibia Investment Centre” means the Namibia Investment Centre referred to in section 6;“Namibian” means -(a)a natural person who is a citizen of Namibia;(b)a permanent resident of Namibia who is in possession of a permanent residence permit issued to him or her in terms of the Immigration Control Act, 1993 (Act No. 7 of 1993); or(c)a company incorporated, registered or constituted in accordance with the laws of Namibia or any state other than Namibia -(i)of which the majority of the issued share capital is directly or indirectly owned by a Namibian who proportionally benefits from the dividends or otherwise; or(ii)which is directly or indirectly controlled by a person referred to in paragraph (a) or (b);“Namibian investor” means a Namibian investor investing in Namibia and registered in terms of section 19;“prescribed” means prescribed by regulation;“regulation” means a regulation made under section 30;“State”, means the Republic of Namibia, whether acting in a commercial or sovereign capacity, and includes an enterprise owned by the State and any ministry, office and agency of the State;[The comma after “State” is superfluous.]“this Act”, includes the regulations; and[The comma after “this Act” is superfluous.]“threshold” means the monetary threshold determined under section 4(3)(c) as qualification for registration as investor in terms of this Act.
2. Objects of ActThe objects of this Act are -
Part 2 – Administration of Act
3. Administration and implementation of Act
4. Powers and functions of Minister
5. Performance agreements with investors
6. Namibia Investment Centre
7. Integrated client service facility
Part 3 – Investors, economic sectors and business activities
8. Reservation of categories of economic sectors and business activities for certain categories of investors
9. Savings of existing investments after reservation of economic sectors and business activities
10. Economic sectors and business activities not reservedAn economic sector or business activity that has not been reserved pursuant to section 8 is open for investment and ownership participation by any investor in any legal form permitted by this Act and the generally applicable law.
Part 4 – Change of ownership and control of investments
11. Approval of proposed change of ownership and control of investment
12. Application for approval of investments
13. Provisional approval of investments
14. Criteria for approval of investmentsIn considering the application for approval of investment and in addition to any other provisions of this Act, the Minister must consider the net benefit for Namibia, taking into account -
15. Time period for approval of investmentThe Minister may prescribe time periods for the approval of any application or review of any decision relating to the approval of investment under this Act.
16. Transfer of rights and obligations
17. Exception to requirements for approval of transfer of ownership or control
Part 5 – Rights and obligations of investors
18. Compliance with all applicable lawsInvestors must carry out their activities at all times in full compliance with all the applicable laws of Namibia.
19. Registration of investors and investments
20. Application of Act to matters under treaties
22. Payment of compensation
23. Right of review concerning expropriation and compensationThe investor affected by an expropriation has a right to review by a judicial authority of Namibia and of the valuation of the compensation for his or her expropriated investment in accordance with the principles set out in section 22.
24. Foreign personnel
25. Facilitation of visas and permits of investors, dependents and foreign personnel
26. Capacity development and transfer of skills
27. Transfer of funds
Part 6 – Dispute settlement
28. Resolution of post establishment disputes
Part 7 – General provisions
29. National securityDespite other provisions of this Act, the Minister may further prescribe and regulate investments in a manner necessary for the maintenance of -
32. Opportunity for compliance with law
33. Penalties for offences
34. Repeal of lawsThe Foreign Investment Act, 1990 (Act No. 27 of 1990) and the Foreign Investment Amendment Act, 1993 (Act No. 24 of 1993) are repealed.
36. Short title and commencement
History of this document
31 August 2016 this version
Published in Government Gazette number 6110
12 August 2016