Iuze Mukube
More than a century after the brutal extermination order that resulted in the mass killing of thousands of Ovaherero and Nama people in the then-German South West Africa [Namibia], the legal and constitutional questions surrounding the genocide remain firmly contested.
Although Germany has acknowledged the atrocities committed in the now-Namibia between 1904 and 1908 as genocide, in a political and moral sense, it has consistently resisted to accept any explicit legal liability.
The former colonial power’s position has left unresolved debates over reparations, jurisdiction, constitutional obligations and the role of affected communities in negotiations.
Briefly, the genocide reparations case is linked to the conflict traced all the way back to 12 January 1904, when the indigenous people revolted against the German colonial authority, after years of land dispossession, forced labour and abuse.
The Ovaherero uprising is historically recorded to have been won, but retaliation from the colonial power followed an extermination order by German General Lothar von Trotha on 2 October 1904.
The order directed that the Ovaherero people found within German-controlled territory be shot or driven into the desert.
The resistance of the Nama, who are recorded to have initially fought alongside the Germans, followed soon after, leading to further military campaigns, concentration camps and forced labour systems until 1908.
Historically, it is estimated that around 40 000 to 80 000 Hereros (80% of their population) and nearly half of the Nama population perished at the time through executions, starvation, dehydration, disease and confinement in camps.
20 years after Namibia became independent, it is recorded that the Herero and Nama gronups have pursued reparations, including filing an unsuccessful lawsuit in the United States under the Alien Tort Act and other foreign courts.
In 2015, the German government acknowledged that a genocide had been committed in Namibia.
In 2021, a deal was made with Namibia, in which Germany agreed to contribute an estimate amount of USD$1.3 billion, in development aid.
It has, however, rejected any legal responsibility for the genocide.
Speaking during an interview on the legal context surrounding the Ovaherero and Nama genocide, Patrick Kauta stated that Germany’s rejection of legal liability cannot stand when viewed against international law principles existing at the time of the atrocities committed between 1904 and 1908.
According to him, the argument that genocide laws cannot apply retroactively to the killings in then-German South West Africa is flawed.
Kauta argued that international norms already regarded mass extermination as unlawful long before the adoption of the Genocide Convention.
He argued that the convention merely codified principles that already existed under international law, which prohibited the mass killing of people.
He pointed to the Armenian genocide of 1914 and the post-Second World War Nuremberg trials, where convictions referred to earlier exterminations, including the Ovaherero and Nama genocide, as examples of genocidal conduct.
He further said that, when Adolf Hitler and his generals were prosecuted after World War II, the Ovaherero and Nama genocide was referred to as an example.
He questioned why then do individuals say that, when it comes to Namibia, that genocide did not exist in law at the time.
Kauta said Germany’s argument effectively attempts to justify colonial-era racial hierarchy.
“When Germany says that genocide law did not exist then, or reduces the atrocities to acts of war, it effectively says that international law at the time allowed black people to be treated as non-human beings,” he said.
On the issue of jurisdiction, he insisted that Namibian courts are competent to hear genocide-related claims against Germany, citing international examples from Argentina, South Korea and rulings of the International Court of Justice involving state accountability.
“Namibia was not at war with Germany. This was genocide and extermination of indigenous communities,” Kauta noted.
He said there is sufficient international authority supporting the argument that domestic courts may examine claims arising from grave international crimes committed within their territories.
Kauta also drew attention to the country’s Constitution, focusing on Article 63 and 40, which places obligation on Parliament and Cabinet to remain vigilant against colonialism, and to assist historically harmed communities by such systems.
The lawyer argued that these constitutional provisions impose duties on the state regarding genocide reparations.
Kauta said the government is not constitutionally authorised to replace affected communities during negotiations, but must assist these affected communities, instead of negotiating away their rights on their behalf.
The question of what amounts to a legally valid remedy remains heavily disputed.
Germany’s agreement with Namibia in 2021 included funding commitments directed toward development projects.
This has attracted heavy criticism from the affected communities, arguing that development aid cannot legally or morally replace justice for genocide.
Kauta stressed that reparations under international law involve more than financial compensation.
“People think reparations are only money, but reparations include restorations of culture, dignity, land and identity,” he remarked.
United Nations principles on reparations recognises remedies that may include financial compensation, restitution of land or property, rehabilitation, public acknowledgment and apology, and cultural restoration.
For descendants of genocide victims, reparations remain deeply tied to historical recognition and restorative justice, rather than simple economic assistance.
While Germany has maintained that negotiations can only occur on a state-to-state basis, the affected Ovaherero and Nama communities argued that victims of genocide possess a direct legal and moral interest.
The lawyer pointed to findings by United Nations special rapporteurs, who reportedly criticised the exclusion of affected communities from negotiations.
“Even if negotiations happen state-to-state, affected communities cannot simply be excluded,” Kauta said.
He added that there was a stage when government said it would assist affected communities to negotiate directly with Germany.
Kauta then questioned the official recognition of 28 May as Genocide Remembrance Day.
He said historical records indicate that 28 May marked the closure of concentration camps, and the beginning of forced labour and enslavement of surviving indigenous populations.
“We are effectively commemorating the enslavement of our people,” he said.
“Why not commemorate the extermination order instead?” he added.
He argued that some traditional leaders, particularly from the Nama community, favour alternative dates tied to earlier massacres committed during German colonial expansion.
More than 120 years later, the historical injustice over the Ovaherero and Nama genocide remains unresolved – and today, it still stands as simply that, the country’s darkest tragedies.
What began as a fight against historical injustice has evolved into ongoing legal and political disputes over reparations, state accountability and jurisdiction as well as the role of affected communities in negotiations.
Since Germany has continued to reject any explicit legal liability, this has left the legal fallout from the genocide to still be unresolved to this day. –mukubeiuze@gmail.com