By: Justicia Shipena
The Nama Traditional Leaders Association (NTLA) and the Ovaherero Tradition Authority (OTA), alongside landless People’s Movement (LPM) leader Bernadus Swartbooi, have threatened to take the legal route should the attorney general not respond to its concerns on the Genocide Joint Declaration.
The leadership on Thursday, through its lawyers Dr Weder, Kauta & Hoveka Inc, wrote to the attorney general Festus Mbandeka seeking answers to whether the Namibian parliament will be allowed to act in terms of Article 63(2) (c)(d) and (e) of the constitution before the implementation and execution of the joint declaration.
Article 63 (2)(i) of the constitution provides that the NA shall have the power to remain vigilant and vigorous to ensure that the scourges of Apartheid, tribalism and colonialism do not again manifest themselves in any form in a free and independent Namibia.
On 30 August, the German government informed its Bundestag that the Joint Declaration was fully negotiated, rejecting the possibility to re-negotiate a new deal over the 1904-1908 genocide.
“If you fail to provide us with written confirmation, we hold
instructions to approach the High Court for necessary reliefs,” said the group in a letter dated 13 September 2022.
Speaking on Thursday, NTLA secretary general Deodat Dirkse said the Namibian government never got participatory rights to negotiate on behalf of the affected people.
Dirkse added that in the end, the German government negotiated with the Namibian government, adding that the Namibian government is eager to proceed with the Joint Declaration irrespective of the pushback in parliament.
With Germany expected to come to Namibia to tender its apology for its role in the slaughter of the Herero and Nama people in Namibia more than a century ago, heated debates on the Genocide issue had also been presented in the National Assembly.
Germany has also agreed to fund projects worth over a billion euros.
This deal was signed in May and accepted to pay Namibia €1.1bn (N$18 billion) as reparation for the Genocide committed during the colonial era.
The reparation was to be in the form of financial support for Namibia’s development through a program over 30 years of spending on infrastructure, healthcare, and training programs benefiting the impacted communities.
“And the fact that it was never passed through our National Assembly and irrespective of the fact that all Nama and Ovaherero people are unhappy with it,” Dirkse told The Villager.
“We are asking the attorney general and the foreign minister of our government to give us feedback on Germany’s responses. Is that the same position they have? Are they accepting that money? And are they proceeding? Is the information the German Government gave correct, and are they in agreement with it?” questioned the secretary general.
The group in the letter stated that Namibia and Germany agreed to strict secrecy and confidentiality rules regarding their inter-state negotiations.
They added that on 8 June 2021, prime minister Saara Kuugongelwa-Amadhila informed the NA about the conclusion of the joint declaration.
Furthermore, on 21 September 2021, defence minister Frans Kapofi served a motion for debate in the NA on the matter.
“Stripped to the bone, members of the House agreed, while debating the joint declaration, that the quantum of the grant was negligible compared to the damages caused,” it read.
They said on 1 December 2021, the speaker of the August house, before adjourning the house, divided it to take a vote for or against the motion.
“The subsequent day, the speaker, in a manner foreign to the internal rules of the house, took note of the motion without taking any vote for or against the Joint Declaration.”
According to them, the constitution gives Mbandeka dual powers as principal legal adviser to the President and the Cabinet for the sole purpose that he (Mbandeka) take all action necessary for the protection and upholding of the constitution.
“If implemented and executed in its current form is inconsistent with the constitution, the house mandate, it violates human rights and customary international law.”
VIOLATION OF HUMAN RIGHTS
They further added that the Joint Declaration in text and application contravenes the doctrine of separation of powers.
“Secondly, it is commonly recognised that the participation rights of indigenous communities, such as the human right to free, prior and informed consent, are part of customary international law.”
OTA and NTLA said that the view cabinet has that the two traditional groups were granted an opportunity as advisers to the technical committee is legally untenable.
“As participants, both NTLA and OTA would help themselves or through their chosen representatives (not through a Special Envoy selected for them by the president) have taken part directly in the dialogues (affecting their rights) between both Governments.”
In this light, it said the President and cabinet acted in breach of Articles 40(1) and 63(2) (i) of the constitution, the NA mandate and international law in denying OTA and NTLA direct participation in the conclusion of the joint declaration.
Through instructions of their lawyers, they indicated that the Namibian government appears to have accepted the German government’s argument that Genocide was not committed based on the doctrine of intertemporal under the law in effect at the time.
The trio added that the Namibian Government has a legal obligation to oppose the reproduction of racism.
“Such application of the doctrine of intertemporal reproduces the violent imposition of (then regional) European international law and the racist distinction between ‘civilised’ and ‘non-civilised’ nations,” they said.
They conclude that the grant does not constitute reparations because, in international customary law, reparations include either restitution, satisfaction or compensation, or a combination of both.
During his state of the nation address, President Hage Geingob lashed out that he had done his part in the genocide negotiations and that officials from Germany would come to Namibia to tender that apology.
They have now given the attorney general to respond by the end of September.