A motion tabled in the National Assembly in September 2021, to discuss the Namibia/German governments’ Joint Declaration on Ovaherero/Nama genocide is the elephant in the room. 

The motion provoked heated debate inside and outside parliament, with a rowdy protest march led by opposition parties. The latest statement by the defence minister calling descendants of affected communities demanding direct engagement with Germany on the genocide matter “delusional”, has seen him widely condemned as a rabble-rouser. 

Fact is, there are international legal instruments that clearly outline specific rights that pertain to indigenous peoples and victims of the crime of genocide, as well as essential steps to follow along the lifecycle of a development project, from identifying which communities need to be consulted to sharing achievements after the project has been completed. 

In recent years, we have witnessed growing outcry by indigenous peoples across the globe denouncing governments of lack of compliance with the International Labour Organisation Convention (ILO 169) and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), especially with obtaining their free, prior and informed consent (FPIC) before initiating certain activities and or enacting projects on their ancestral land. 

The right to FPIC is a key principle of international human rights law. FPIC is a specific right that pertains to indigenous peoples and is recognised by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Convention on Biological Diversity and ILO Convention 169, which are the most powerful and comprehensive international instruments that recognise the plight of indigenous peoples and defend their rights.

It allows indigenous peoples to give or withhold consent to a project that may affect them or their territories. Once they have given their consent, they can withdraw it at any stage. Hence, FPIC enables indigenous peoples to negotiate the conditions under which the project will be designed, implemented, monitored and evaluated.  

In 2007, the UN General Assembly adopted the UNDRIP, recognising their rights and making specific mention of FPIC as a pre-requisite for any activity that affects their ancestral lands, territories and natural resources, and also before initiating or starting a project. 

It consists of four pillars which entail the following; Free: consent obtained must be freely given, without coercion, manipulation or bribes; Prior: an entity must obtain the consent of the affected community before starting the operations. 

This means communities have the right to oppose a project and prohibit its development; Informed: full disclosure of information regarding all aspects of a proposed project or activity in a manner that is accessible and understandable to the people whose consent is being sought, and; Consent: an entity must inform community members of the positive and negative impacts of a project before seeking consent. 

In an FPIC process, the how, when and with and by who, is as important as what is being proposed. However, for an FPIC process to be effective and result in consent or lack of it, how the process is conducted is paramount. 

The time allocated for the discussions among the indigenous peoples, the cultural appropriateness of the way the information is conveyed, and the involvement of the whole community, including key groups like women, the elderly and the youth in the process, are all also essential. As such, a thorough and well-carried FPIC process helps guarantee everyone’s right to self-determination, allowing them to participate in decisions that affect their lives.

In the last two to three years, development experts have recognised that FPIC is not only important for indigenous peoples but it is also good practice to undertake with local communities, as involving them in the decision making of any proposed development activity increases their sense of ownership and engagement and, moreover, helps guarantee their right to development as basic human rights principles. 

FPIC is not just a result of a process to obtain consent to a particular project or activity; it is also a process in itself, and one by which indigenous peoples are able to conduct their own independent and collective discussions and decision-making. 

They do so in an environment where they do not feel intimidated, and where they have sufficient time to discuss in their language, and in a culturally appropriate way, matters affecting their rights, lands, natural resources, territories, livelihoods, knowledge, social fabric, traditions, governance systems, and culture or heritage (tangible and intangible).

While participation has the potential to bring tremendous benefits to development projects or programs, the concept of participation is also firmly rooted in human rights principles. Participation is based on the key human rights principles of individual autonomy and self-determination as part of basic human dignity. Human dignity differs conceptually from ideas often traditionally used in the development, such as “satisfaction” or “welfare”, in stressing active choice as opposed to making people “passive recipients of benefit”. 

FPIC under international law

Namibia was one of the 144 states that voted in favour of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) on 13 September 2007. 

Article 28 of UNDRIP gives indigenous peoples the right to just, fair and equitable compensation for their lands, territories and resources they have traditionally owned, occupied or used, where these have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. 

Hence, FPIC Treaty is legally binding to all states that ratify it, which may need to adjust domestic legislation. Also, on 23 June 2021 Germany deposited the instrument of ratification on the Indigenous and Tribal People’s Convention, 1989 (no. 169) becoming the 24th country to ratify this instrument, globally, and the sixth at the European level. 

States under the provision of Article 25 (a) of the International Covenant on Civil and Political Rights (ICCPR) are an obligation to respect the rights of citizens at all times. On the basis of aforesaid, the delusional statement by the defense minister is a blatantly implausible claim. 

- Major general (retired) JB Tjivikua