Iuze Mukube 

A call for accountability echoed in the Windhoek High Court yesterday. 

The Ovaherero and Nama people sought an order compelling the Federal Republic of Germany to join as a party in their application for judicial review on the Joint Declaration agreement. 

The main application seeks relief to set aside the Joint Declaration agreement signed between Namibia and Germany, which also speaks to the genocide of 1904-05. 

Basically, the proceeding yesterday was a joint application sought by Bernadus Swartbooi and his co-applicants to have the German government as a party in their application. 

This is in order to answer for its atrocities committed during its colonial rule against the Ovaherero and Nama people. 

The main issue of contention was whether the court had jurisdiction over Germany. 

The applicants’ lawyer Tshidiso Ramogale argued that if the court finds it has jurisdiction, then Germany must be joined as a necessary party. 

Ramogale stated that the government respondent’s reliance on State and diplomatic immunity, particularly by referencing the war conflict between Germany and Italy, was misplaced. 

He argued that the respondents were confusing the distinction between State and diplomatic immunity. 

He added that their invoked authorities were of no assistance to them. 

Ramogale stated that State immunity has never been exceeded where proceedings were related to death or injury. 

He further submitted that, in the absence of statute, the Namibian courts must decide on the question of State immunity with reference to its  constitution of common law and customary international law. 

The South African lawyer added that international law also provides that “when a State commits a tort, a debate, that results in the death or causes injury to a person, they are not immune from the jurisdiction of the court in which that particular tort was committed”. 

Ramogale expressed that “immunity cannot be raised as a defense to a genocide charge”. 

He argued that Germany needs to be joined as a party because it has an interest in the issues of the Joint Declaration and Genocide reparations. 

He added that death cannot be viewed as a sovereign act because what happened against the Nama and Ovaherero was not a case of armed conflict with another State but a genocide. 

He said the case of Germany and Italy was a matter of armed conflict and atrocities committed in an armed conflict with armed forces. 

Therefore, one cannot complain and seek reparation in such cases. 

He added that the question is not whether the court has jurisdiction, by that it should apply the law as it is in these instances. 

Raymond Heathcote, on behalf of the government respondents, argued that Swartbooi seeks to set aside a declaration that has not even been signed yet, but was only noted. 

He slammed the contention by the applicants’ lawyer that the government’s legal term was confused about the difference between State immunity and diplomatic immunity. 

Heathcote argued that Swartbooi wants to set aside an agreement that is aimed at securing justice for victims of the 1904-05 Ovaherero and Nama genocide. 

He added that, if it is granted, the victims will have to start all over again from the beginning with reparation talks. 

He further stated that the applicants are playing a game with words on an international plane when they cited Germany as a government instead of a person capable of being summoned in the current proceedings. 

The case pertains to the legality of the joint declaration, which outlines an agreement on genocide. 

The applicants comprise Landless People’s Movement leader Bernadus Swartbooi and his party, the Ovaherero, Afrikaner, !Aman, Blouses, Bondelswart, Kai/Khaum, !Kharkhoe, Swartbooi, Topnaar, Witbooi and /Hai-Khau traditional authorities. 

Respondents are the Speaker of the National Assembly, the National Assembly, the President, the Cabinet, the Attorney-General and Germany. 

The applicants also want the Council of Traditional leaders and several other traditional authorities as parties [respondents] to the application. 

Judgement on the matter was reserved until 18 November 2025. 

-mukubeiuze@gmail.com