Lawyers clash with AG over genocide deal

Lawyers from Germany and Namibia are considering filing a lawsuit in a Namibian court to have the legality of a joint declaration by the two countries reviewed.

They are acting on behalf of a Namibian member of parliament and an Ovaherero and Nama genocide organisation.

Lawsuits have been filed before, but in American courts. Those failed because the courts did not consider themselves competent to decide on the matter.

Namibian lawyer Patrick Kauta’s law firm wrote to Attorney-General Festus Mbandeka and international relations minister Netumbo Nandi-Ndaitwah in September.

From the lawyers' point of view, the joint declaration violates constitutional and international law for various reasons. They highlighted rights of participation under customary international law as an example.

According to the United Nations Declaration on the Protection of Indigenous Peoples (UNDRIP), the Namibian and German governments should have involved the affected groups in the negotiations "in a substantive manner and through self-elected representatives".

Furthermore, according to the declaration, the Namibian government agreed with the German government's argument that the crimes committed during the genocide did not constitute rights violations in the context of the time. The lawyers said this is backed by a "racist" distinction between "civilised" and "non-civilised" nations.

They also considered the abrupt termination – at the end of last year - of heated debates in Namibian parliament on the agreement unlawful. Until now, parliament's approval has not been necessary for the signing of the agreement.

‘Malicious allegations’

In a letter, Mbandeka rejected the lawyers’ objections.

He wrote of "malicious allegations" and "insinuations" that lacked any basis. Government rejected the "often-repeated false allegation" that the joint declaration was created without the participation and consultation of the affected communities, he said.

President Hage Geingob and government demonstrably approached the representatives to join the negotiation process, he argued, adding that the state remains open to further talks.

The president had the authority to conclude international treaties, he said.

Meanwhile, the German side sees it the same way.

"The Namibian government is and remains the negotiating partner," the German foreign office said in a response to the Left Party parliamentary group in August.

Hotly debated

Beyond participation in the talks, the type and amount of reparations continue to be hotly debated in Namibia.

According to the current plan, about N$18 billion (1.1 billion euros) is set to flow into development projects that will also benefit the victims' descendants.

The opposing Herero and Nama organisations, however, insisted on real reparation payments and significantly higher amounts.

A few days ago, the deputy governor of the Bank of Namibia Ebson Uanguta said over 70 billion euros would be appropriate, while a candidate for Ovaherero Paramount Chief position previously mentioned more than 800 billion euros.

The Namibian government is now coming under increasing pressure. Vice-President Nangolo Mbumba recently explained the current state of negotiations to more than 250 heads of various ethnic groups at a Chiefs Forum.

He said after the debates in parliament, government gave Germany a "supplementary proposal" in July. Among other things, Germany was to give assurances that the 1.1 billion euros was not the final amount and that additional payment would be negotiated in the future.

Disbursement should be flexible, he said, and payments should be brought forward to "mitigate the problem of attrition and value for money over the 30 years".

Where practical, the descendants of victims in the diaspora should also benefit from the programmes, he added.

Germany has yet to respond to this proposal.

Mbumba dismissed speculation that the two governments had already secretly signed the agreement. He said any signing would be done "openly and publicly".