Govt to fight genocide court bid
Courts to decide on joint-declaration saga
Government has deployed its legal machinery to oppose an application seeking to nullify the genocide joint declaration between Namibia and Germany, which is seen by antagonists as opportunistic.
Government will oppose an application by Landless People’s Movement (LPM) leader Bernadus Swartbooi, which seeks to nullify the controversial joint declaration between Namibia and Germany, court papers filed by state attorneys show.
Several Nama traditional authorities and the Ovaherero Traditional Authority are fighting alongside Swartbooi.
Jabulani Ncube from the Government Attorneys office this week gave notice that they will oppose the matter on behalf of the Speaker of the National Assembly Peter Katjavivi, National Assembly, President Hage Geingob, the entire Cabinet and Attorney-General Festus Mbandeka.
As part of the controversial deal, the German government agreed to pay Namibia 1.1 billion euros (N$18.6 billion) in projects over 30 years for the reconciliation and reconstruction of communities affected by the Nama-Herero genocide of 1904 to 1908 as a form of reparation.
While the Namibian government has heralded the deal as a major breakthrough after years of back-and-forth negotiations, the affected communities have called it an insult.
In this application, Swartbooi - himself a descendent of the Nama people “who suffered at the hands of German colonisers whose intention it was to wipe out the Ovaherero and Nama people” - makes it clear that Katjavivi had no basis to rely on when he noted the joint declaration in parliament.
The Speaker further played a part in depriving parliament the opportunity to meaningfully debate the declaration, he said. Swartbooi wants the court to declare Katjavivi’s conduct unlawful, and to set aside the joint declaration based on it not being ratified in line with the standing rules of the house.
He also believes the agreement is inconsistent with the provisions of the Namibian Constitution as well as the 2006 house motion on genocide, and wants the court to subsequently set it aside.
‘Unlawful’
“The joint declaration is not a meaningless international statement; it has domestic application and an adverse effect on citizens’ rights - to the point that it has made a policy choice which has never been debated or otherwise scrutinised by parliament or anyone outside the executive at all,” the LPM leader said.
“Government does not have the inherent power to unilaterally make laws, even on an international plane that has a direct impact on what happens to citizens - that is a substantive law-making power that is the preserved for parliament,” court papers read.
Swartbooi said the joint declaration is unlawful, further alleging that Katjavivi’s decision to merely note the declaration in parliament was beyond his powers.
According to him, the position that the joint declaration represents a policy choice determines future relations between Namibia and Germany regarding the genocide and further creates a development fund in place of the payment of reparations.
“It was established without the participation of those directly affected by the tragic events [of the genocide], or the Namibian public in general.
“The joint declaration, thus, purports to settle the issue of the genocide in principle and chooses its modality: It restricts what form of redress can be pursued by Namibians domestically,” he said.
Judicial review
According to Swartbooi, had this decision been made solely at the behest of the Namibian government - for example by passing a domestic law that foreclosed on reparations without German involvement - there would be no question that such conduct would be subject to judicial review.
He accused government of flouting the constitution and said the results thereof would have direct, external, legal effects.
The lawmaker emphasised that there are Namibian people who suffered and still suffer from the aftershocks of colonialism, adding that the unilateral choice imposed on the country by government in the absence of parliamentary debate undermined parliament’s ability to satisfy its obligation to protect previously disadvantaged Namibians.
“No legally competent choice of this kind could be made by excluding parliament. Parliament cannot fulfil an obligation where it is given no meaningful opportunity of participation or debate. This only becomes worse when parliament is properly viewed as the people’s representatives, with competency for determining laws and consequences on the domestic plane,” he said.
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Several Nama traditional authorities and the Ovaherero Traditional Authority are fighting alongside Swartbooi.
Jabulani Ncube from the Government Attorneys office this week gave notice that they will oppose the matter on behalf of the Speaker of the National Assembly Peter Katjavivi, National Assembly, President Hage Geingob, the entire Cabinet and Attorney-General Festus Mbandeka.
As part of the controversial deal, the German government agreed to pay Namibia 1.1 billion euros (N$18.6 billion) in projects over 30 years for the reconciliation and reconstruction of communities affected by the Nama-Herero genocide of 1904 to 1908 as a form of reparation.
While the Namibian government has heralded the deal as a major breakthrough after years of back-and-forth negotiations, the affected communities have called it an insult.
In this application, Swartbooi - himself a descendent of the Nama people “who suffered at the hands of German colonisers whose intention it was to wipe out the Ovaherero and Nama people” - makes it clear that Katjavivi had no basis to rely on when he noted the joint declaration in parliament.
The Speaker further played a part in depriving parliament the opportunity to meaningfully debate the declaration, he said. Swartbooi wants the court to declare Katjavivi’s conduct unlawful, and to set aside the joint declaration based on it not being ratified in line with the standing rules of the house.
He also believes the agreement is inconsistent with the provisions of the Namibian Constitution as well as the 2006 house motion on genocide, and wants the court to subsequently set it aside.
‘Unlawful’
“The joint declaration is not a meaningless international statement; it has domestic application and an adverse effect on citizens’ rights - to the point that it has made a policy choice which has never been debated or otherwise scrutinised by parliament or anyone outside the executive at all,” the LPM leader said.
“Government does not have the inherent power to unilaterally make laws, even on an international plane that has a direct impact on what happens to citizens - that is a substantive law-making power that is the preserved for parliament,” court papers read.
Swartbooi said the joint declaration is unlawful, further alleging that Katjavivi’s decision to merely note the declaration in parliament was beyond his powers.
According to him, the position that the joint declaration represents a policy choice determines future relations between Namibia and Germany regarding the genocide and further creates a development fund in place of the payment of reparations.
“It was established without the participation of those directly affected by the tragic events [of the genocide], or the Namibian public in general.
“The joint declaration, thus, purports to settle the issue of the genocide in principle and chooses its modality: It restricts what form of redress can be pursued by Namibians domestically,” he said.
Judicial review
According to Swartbooi, had this decision been made solely at the behest of the Namibian government - for example by passing a domestic law that foreclosed on reparations without German involvement - there would be no question that such conduct would be subject to judicial review.
He accused government of flouting the constitution and said the results thereof would have direct, external, legal effects.
The lawmaker emphasised that there are Namibian people who suffered and still suffer from the aftershocks of colonialism, adding that the unilateral choice imposed on the country by government in the absence of parliamentary debate undermined parliament’s ability to satisfy its obligation to protect previously disadvantaged Namibians.
“No legally competent choice of this kind could be made by excluding parliament. Parliament cannot fulfil an obligation where it is given no meaningful opportunity of participation or debate. This only becomes worse when parliament is properly viewed as the people’s representatives, with competency for determining laws and consequences on the domestic plane,” he said.
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