24.03.2025, Artikel: Legal storm brews over genocide declaration

Artikel aus Informante, 24/03/2025 | https://informante.web.na/?p=371998

Zorena Jantze

LAW firm, Murorua, Kurtz and Kasper (MKK) Incorporated has penned a letter to government on behalf of 10 Nama Traditional authorities, the Oveharero Traditional Authority as well as the Landless People Movement (LPM) to invalidate and set aside the “Joint Declaration” agreed by the Namibian and German Governments.

The parties have said that they are seriously considering legal action, in the form of an urgent application before the end of this week to seek relief from the High Court to stop government from signing the Joint Declaration.

In the letter penned to the Speaker of the National Assembly, the National Assembly, the President, Cabinet and the Attorney-General, Patrick Kauta from MKK Incorporated argued on behalf of the applicants that the Joint Declaration conflicts with an earlier resolution of Parliament made in 2006 regarding Germany’s payment of reparations to Namibia for the genocide committed by it, and that such resolution has not been lawfully or properly rescinded or otherwise varied to permit the Namibian Government’s conduct.

The Parliament resolution of 2006 outlined that Nama and Ovaherero leaders would be the front runners of the negotiation process, and that government would merely facilitate the process.

Kauta said that the Namibian Government’s conduct did not meaningfully involve their clients or affected communities. “Not only does this directly breach our clients’ rights in respect to public participation to influence a decision of this nature, it also breaches our clients’ rights as the representatives of the victims of the genocide to have a say in how the genocide is remedied. By excluding our clients, the Namibian Government failed in its duty to consult,” Kauta said.

MKK Incorporated further referred to a cabinet resolution made in December 2024, which said that government is satisfied with the terms of the agreement and approved for the signing of the Joint Declaration.

“In the circumstance, we call upon you to immediately and urgently confirm whether the document (the cabinet decision) is genuine and its contents are accurate: If so; we call upon you to immediately cease and desist from continuing such conduct on the basis that its purpose or intent is to frustrate, if not render nugatory, the pending litigation between our clients. We further advise that if the undertaking as stated is confirmed, then we reserve our clients’ rights to launch further urgent proceedings against you on the basis that such conduct is a breach of the Government’s public law duties of good faith and is in fact mala fides and/or constitutes constructive contempt,” Kauta said.

In response, Jabulani Ncube, the Deputy Government Attorney in Namibia, in a letter said that government is not under any legal obligation to submit to these demands.

“Your clients have, at all relevant times, been aware of the ongoing negotiation process. Notwithstanding their knowledge, your clients rather elected, at their own peril, to prematurely institute an application in the High Court (in the absence of a reviewable decision) in the ordinary course. Given the knowledge your clients at all relevant times had, their aforesaid election, and the fact that our clients are not under any legal duty to make any of the undertakings sought, we regret to inform you that no undertaking sought will be made,” Ncube said.

Nama and Ovaherero leaders first instituted legal proceedings against the government respondents in January 2023, after the first draft of the Joint Declaration was presented, but have however become more desperate and are threatening to file another urgent application as reports have it that government is set to sign the Joint Declaration by the end of March 2025.

The NTLA is of the opinion that the current format and text of the Joint Declaration does not acknowledge the term genocide, and merely refers to words such as atonement and avoids the word “reparations”, to avoid an avalanche of claims that may emanate from other affected African countries.

Germany’s offer remains at €1.1 billion (approximately N$18 billion) over 30 years, despite the affected Namibian communities demanding N$1.1 trillion.

Those who threaten to take the current urgent legal action include Bernadus Swartbooi, Ovaherero Traditional Authority, Afrikaner Traditional Authority, !Aman Traditional Authority, Blouses Traditional Authority, Bondelswart Traditional Authority, /Kai/khaun Traditional Authority, Ikharkhoe Traditional Authority, Swartbooi Traditional Authority, Topnaar Traditional Authority, Witbooi Traditional Authority, /Hai-Khau Traditional Authority and the Landless Peoples Movement.