The Namibian Constitution was formulated by the Constituent Assembly, a body elected following Namibia’s first free and fair elections in November 1989, after a series of negotiations and compromises between various political parties. 

The Constituent Assembly’s duty was primarily guided by principles outlined in the United Nations (UN) resolutions, particularly Resolution 435. The final text of the Constitution was adopted unanimously on 9 February 1990, by 72 members of the Constituent Assembly. The Constitution came into force on 21 March 1990, the day Namibia gained independence. The Constitution is the supreme law of the land, establishing the framework of its governance and the protection of fundamental rights.

The statement that “the history of Namibia is written in blood” reflects the significant violence and brutal oppression endured by black Namibians during its colonial and post-colonial periods. The history is marked by episodes of fascist Germany’s violent occupation of our land in 1884; the 1904-1908 genocide of Ovaherero and Nama people; the apartheid South African regime’s illegal occupation of our land after World War I and the epoch of a protracted and bitter armed liberation struggle for our freedom and national independence.

As such, the Namibian Constitution is considered a custodian of history, as it often reflects the historical context, values and struggles of our society. It is not just a legal document, it is also a record of our nation’s past, its aspirations for the future and the fundamental principles that shape its identity. Against that backdrop, and in view of the official declaration of May 28 as Genocide Remembrance Day, it has become imperative that the Namibian Constitution be amended in response, including making provisions relating to this specific historical event of the 1904-1908 genocide.

Genesis 

The Extermination Order (Vernichtungsbefehl) was the tipping point of the Ovaherero and Nama genocide in 1904-1908. On 12 January 1904, the Ovaherero and Nama people, led by Samuel Maharero and Captain Hendrik Witbooi, respectively, revolted by taking up arms against German fascist colonial rule of harsh treatment and exploitation. But the primary points of friction were access to scarce resources, such as land, water and cattle.

After the Battle of Waterberg, the Germans pursued them into the Kalahari Desert and those captured were summarily executed. In this exodus to British Bechuanaland (modern-day Botswana), many thousands of men, women and children died of gunshot wounds, hunger, dehydration and poisoned waterholes. As fierce battles continued incessantly, it eventually culminated in the issuance of Extermination Orders by the notorious supreme commander of the fascist Imperial German Schutztruppe, Lothar von Trotha, against the Ovaherero people on 2 October 1904, at Ozombu Zovindimba, and the following year against the Nama people on 22 April 1905, in Gibeon, respectively. Approximately 100 000 Ovaherero and 10 000 Nama were exterminated.

It was a campaign of genocidal massacre, mass murder, ethnic extermination, starvation, concentration camps, human experimentation, extermination through hard labour, forced labour, enslavement and collective punishment waged against Ovaherero and Nama people.

Importance of Genocide Remembrance Day

Namibia’s Genocide Remembrance Day is a crucial event that commemorates the Ovaherero and Nama genocide, which occurred in German South West Africa (modern-day Namibia) between 1904 and 1908. Therefore, it is befitting to honour the victims, acknowledge the historical wrong, and prevent similar atrocities from happening again. This remembrance is particularly important because it was the first genocide of the 20th century, marking a significant event in global history. The day marks the official closure of all of Germany’s concentration camps in the territory.

The commemoration is a pledge to prevent genocide from happening again, ensuring that the world never forgets the horror of the past. It serves as a stark reminder of the importance of protecting human dignity and preventing the systematic destruction of groups based on their identity. Habitually, Genocide Remembrance Day is commemorated worldwide to remember and honour the victims of genocide, prevent future atrocities and uphold the principles of the Genocide Convention. The day serves as a reminder of the devastating consequences of genocide and the importance of vigilance in preventing its recurrence.

Constitutional amendment 

Essentially, constitutions need to be amended over time to adjust provisions that are inadequate and to respond to new needs. With the declaration of Genocide Remembrance Day on 28 May, a need arose to amend our Constitution. Otherwise, the text of a constitution cannot reflect the historical wrongs, the social realities and political needs over time.

History is significantly important for understanding and interpreting the Constitution. It provides context for the text, helps clarify ambiguities, and sheds light on the framers’ intent. Understanding the historical context in which the Constitution was written, such as events leading to the 1904-1908 genocide or Namibia’s armed liberation struggle, helps clarify the framers’ intentions and the meaning of specific provisions.

Fundamentally, a genocide event should be reflected in a constitution to solidify legal prohibitions and demonstrate a commitment to prevention and punishment. This helps ensure that the genocide crime is not only recognised but also actively addressed within the nation’s legal framework. Reflecting genocide in the Constitution serves as a powerful message, both domestically and internationally, that such acts will not be tolerated.

In addition, including provisions related to genocide in the Constitution establishes a legal framework that formally recognises and defines the crime. This ensures that it is not a matter of international law but also has a direct legal basis within the country.

By incorporating provisions for preventing and punishing genocide, the Constitution sets a clear expectation that the government will take active measures to stop such atrocities and hold perpetrators accountable. This can include enacting relevant legislation and establishing mechanisms for prosecution. Reflecting genocide in the Constitution sends a strong moral and political message that the country is committed to preventing such atrocities.

Further, by incorporating genocide provisions in the Constitution, the legal status of the crime is solidified. This provides a clearer framework for understanding what constitutes genocide and what actions are permissible to prevent it. Many countries have signed international treaties, like the Genocide Convention, which obligate them to prevent and punish genocide. However, reflecting this in the Constitution helps ensure compliance with those international obligations.

In summary, a constitutional amendment could include a preamble that acknowledges the historical genocide of 1904-1908, affirming the nation’s commitment to prevent such activities in the future and to uphold human rights and the rule of law. The amendment may also include provisions on state responsibility for preventing genocide, the protection of minorities, and the establishment of a truth and reconciliation commission. Namibia ratified the UN Convention on Prevention and Punishment of the Crime of Genocide, and therefore it is advisable to demonstrate a commitment to human rights and international norms.

*Maj. Gen. (rtd) J. B. Tjivikua is a descendant of victims of the 1904-1908 genocide.