WINDHOEK - “It is fair to conclude that the efforts to have the German government recognise genocide and pay reparations has failed to produce the desired results thus far. This was to be expected. Despite the fevered rhetoric in Namibia around this issue,” says a retired eminent Namibian and a veteran politician in his own right.
The genocide and reparation campaign seems to have been dragging on for years now without any workable, legitimate, and credible conclusion in sight. It all started with late Ovaherero Paramount Chief Kuaima Riruako and his close aide Professor Kerina Mburumba, who led a pack of Otjiherero-speaking eminent and traditional folks-men and women with the first claim filed with the Superior Court of the District of Columbia, against the Deutsche Bank for N$28 billion (two billion U.S. dollars) in compensation. The case was moved to the federal court and then dismissed in 2004 “for failure to state an actionable claim”. Circuit Judge Randolph determined that the complaint “did not identify the specific law supplying the cause of action”, which left applicants (Ovaherero) without a statutory basis for asserting jurisdiction.
The case against Deutsche Bank was refiled in the US District Court for the Southern District of New York and again dismissed because it made the same claims that already had been decided on in 2004. The Ovaherero tried once more in 2006 with a case against Woermann Brock, a company that bought prisoners. The case was filed in the US District Court of New Jersey with the Ovaherero alleging forced enslavement and crimes against humanity under the Alien Tort Claims Act. The case was dismissed in 2006, without a “valid cause of action under ATCA” and because “the applicable statute of limitations had expired”. The Ovaherero appealed this case in 2007 in the US Court of Appeals for the Third Circuit, resulting in the same conclusion.
This by no means meant the end as the prime mover, Riruako soldiered on until the case gained local and international momentum, especially after the centennial commemoration of the genocide of the Ovaherero, Ovambanderu and Nama at Ohamakari in 2004.
After a few years of Riruako and the Ovaherero and Ovambanderu Genocide Foundation, and the Nama Genocide Technical Committee, with parliamentarian Ida Hoffman at its forefront as well as the Ovaherero, Ovambanderu and Nama Council for Dialogue 1904 (ONCD1904) in their own way separately, a motion tabled by Riruako was unanimously adopted by the Namibian National Assembly in 2006. This motion, the Namibian government has since been maintaining, forms the basis of the ongoing negotiations between it and the German government on genocide and reparations.
“Following this adoption, a Parliament to Parliament process started on the reparations.
While, I was still a backbencher, I accompanied the Hon. Speaker who was invited for a visit by his counterpart of the Bundestag, and while there, I attended the discussions on the reparations in the Bundestag. Some parliamentarians in the German Bundestag supported it but eventually the motion seeking a formal apology and consideration of restorative justice was defeated.
Against this background, we said let the government take up this matter on a State to State basis, because international practice dictates that Non-7 State Actors such as individuals and groups cannot negotiate with State Actors and governments.” Geingob, then Prime Minister updated the National Assembly, particularly Kazenambo on the progress on the issue.
Surely, this is an explanation some affected communities have been suspicious of, if not rejecting it in total. Close to 13 years after the motion, the talks have yet to deliver anything tangible, especially in the eyes of the affected communities of the Ovaherero, Ovambanderu and Nama, some of whom have been saying they have been excluded from the ongoing negotiations.
“Pursuant to this 2016 Ohamakari Declaration - we reserve every right to seek whatever political and legal recourse against any intransigent authority, and to take any action, against whoever stands in the way of the just and legitimate cause of our people. We pledge to continue to ever, untiringly and unwaveringly be seized with this issue as well as to continuously make the Namibian government and the government of the Federal Republic of Germany aware of our resoluteness to have the issue of genocide and reparation ever on their agenda for as long as they continue to discuss “us, without us”!
“Finally, we shall dedicate ourselves to ensure that, unless we become part of the process to resolve this vexed problem, that the issue of genocide and reparations enjoy the requisite attention and resolutions by regional, continental and international governmental organisations like Sadc, AU, EU, OAS, Nam and the United Nations to mention but a few.”
“This is to the extent that ultimately, as long as the government of the Federal Republic of Germany remains intransigent on the issue of genocide and reparations, it becomes an international pariah State,” reads the said declaration signed by the affected communities during the 112th commemoration of the Battle of Ohamakari at Okakarara on August 13, 2016.
Consequent to the Ohamakari Declaration, the affected communities outside the negotiations launched a lawsuit in the USA with United States District Court of New York against the government of the Federal Republic of Germany on January 5, 2017. This is for among others damages for loss of lives because of the 1904-1908 genocide, and notably for inclusion in the ongoing negotiations between the two governments. Two years after the court’s verdict in this regard is now out, upholding Germany’s plea and countermotion against the initial application that the court does not have jurisdiction to try the country under the Foreign Service Immunity Act (FSIA) of the United States.
Where to now? Given that both attempts has as yet to see the desired outcome, which is reparation for the Ovaherero, Ovambanderu and Nama; here in Namibia and in the Diaspora, especially Botswana and South Africa.
“Yes, the case is no longer in our hands. It is in the hands of the Namibian and Germans governments, and in the court. With us now reduced to screaming,” reflects Ida Hoffman, one of the first, if not the only lone voice of the Nama on genocide and reparations.
“Until it is understood that genocide/reparations dispute, is universal and not only confined to Namibia, nothing will be resolved between Windhoek and Berlin!” opines retired diplomat, Ben Karamata.
“From forums like Keetute, one hears that the discussion (Otjihingiriro) between the two governments is nearing the end (after about eight rounds). As far as I am concerned there is no resident German ambassador who has used the term genocide when referring to the killings of the Namas and the Ovahereros during the 1904 war; the reference term is mainly “those atrocities.” Thus it begs the question if the German government still refuses to acknowledge the killings as genocidal, how can the discussion reach a conclusion; or perhaps the discussion is based on “those atrocities in the past”, and if that is the case then that is a total betrayal of our ancestors whose blood watered our freedom,” says Uazuvara Honga who has been close to the reparations movement since picking up momentum in 2003 to this day.
“This issue would have been concluded had the Namibian government kept to the letter and spirit of the Parliamentary motion of 2006,” says Muvatera Ndjoze-Siririka another close observer and activist of the reparations campaign.
Mburumba on his part does not think it is late for amends to the process where mistakes have been with a caveat that current president Hage Geingob has meant well with the ongoing negotiations. However, he emphasises that the campaign to get Germany to acknowledge and recognise the genocide of the Namibian people and subsequently to atone thereto was started by specific people. Whom the government must recognise and consult.
“The legitimate starting point should have been for any government initiating some interest in this matter, whether by social obligation or by invitation or appeal from the victims, to first affirm the victims as the owners and primary players in this course. In that way then the said government should have explored avenues or sought audience with any other government that houses any section of the victims. This would have been with a view for the said governments to canvass operational strategies and consolidate their efforts as a common force, working in a parental capacity and further playing a representative participatory role on behalf of the victims. There should have also been an internal modus operandi especially outlining the roles and parameters of each party’s participation between the victims and the collective governments’ structure. And the talks with Germany would be either through direct dialogue with the victims or their representatives, or elected to be done by the governments structure on terms set and agreed in the best interests of the victims (assuming they have a composite structure or any other credible representative organs),” opines yet another descendant of the victims of genocide, adding a voice of the Diaspora, especially from Botswana.
“The United Nations (UN) recognised the Ovaherero and Nama genocide as genocide under the UN Convention on genocide. The Namibian government and that of Germany are both UN members, therefore one wonders how do these two governments get it right on renaming the Ovaherero and Nama genocide into political, moral and atrocities contrary to or in gross violation of the principles of UN genocide Convention, an international body to which they are member states?” muses Kazenambo Kazenambo, a descendant of the victims also born in the Diaspora in Botswana and who may also represent the voices of other descendants in the Diaspora, be that in Botswana or South Africa and beyond.
“Dr Zed credibility is verified as a Diplomat, an academic by qualification, a Historian and a descendant of the victims of genocide himself but the problem that results from what I think is an “ ethical blind spot “ kind of a situation is that he has subjected himself to an operation framework that preaches a dogma that has compromised him to an extent of now not being here nor there. What can he claim to be solely in his power? Remember he seeks approval from the PS even if he wants to respond to an article in the media. Perhaps we should write an article with the heading: The degradation of an icon through state capture and non-progressive diplomatic endeavours,” opines Negro Katupose from the Kambazembi Traditional Authority but in his private and individual capacity.
“It is hard to see the current government led negotiations leading to such an outcome. I am afraid, political and economic opportunism rather than a deep understanding of the effects of the genocide and a genuine desire to right a wrong motivates these. In fact, I am afraid any agreement based on the current governments led negotiations will lead to further marginalisation and victimisation of the affected communities - aided by the Namibian government. How can a flawed process, where people feel alienated and marginalised, lead to empowerment?” are the initial comments of Dr Kavemuii Murangi, one of the descendants of genocide in the Diaspora in the United States of America. Dr Murangi is the Director and co-founder with Jephta Nguherimo, of the US-based Ovaherero/Manderu and Nama Genocides Institute (ONGI).
These views may seem divergent as their holders may be diverse but there is a common theme underlying all of them. Those ongoing efforts at reparations are yet to reach the Promised Land and deliver milk and honey ala reparations. As limited as they may be, they flatly goes against the excitement of some that the Namibian and German governments’ negotiations on genocide and reparations, which in February entered and concluded the latest round talks in Swakopmund in Namibia. The latest round yet again seemed to invoke the usual premature excitement, among some participants, that the end is nearer, albeit a cautious one. With real business, only beginning now as some have been heard saying but that other fellow players saw as nothing more than a delusional slip of the young. This is after close to five years of intense expectations by especially the affected communities, that these negotiations have been less than businesslike.
During latest round of negotiations, the German government has understandably eventually conceded that indeed what was inflicted on the Ovambanderu, Ovaherero and Nama by colonial Germany, especially between 1904 and 1908, was genocide. Only time will tell because as there has been nothing official, either from the Namibian or German government, to affirm this. Not while even Geingob is still calling on the German government to accept genocide. The President made this appeal lately in Gibeon in the Hardap Region in the south of Namibia on the repatriation of some looted colonial artefacts from Germany, a Bible and whip belonging to erstwhile Nama Captain Hendrik Witbooi of the Witbooi cultural group.
In addition, the observers and opinion makers quoted earlier in this article, the jury is obviously yet to come out on the entire reparations campaign, irrespective which side, in terms of delivery.
Neither could Namibia’s special envoy on genocide and reparations, Dr Ngavirue, categorically assure that indeed the road is nearer following the recent negotiations. He on March 14 brief descendants of genocide about the negotiation’s progress. This was during the commemoration of the death of erstwhile Ovaherero Paramount Chief Samuel Maharero, the Commander-in-chief of the Ovaherero and Ovambanderu during the very war of resistance against Imperial Germany, which eventually culminated in their genocide. Informing that indeed the Germany has accepted genocide as such, and is ready to apologise, the special envoy says she has yet to agree to any atonement, having disagreed with the Namibian’s government submission although not disputing its content. Namibia has to jump to the current ostensible window of opportunity by the Angela Merkel administration, or given the changing political landscape in German with Merkel exiting, be prepared to wait another 20 years or so. However, the special envoy could let the cat out of the bag what the counter German proposition entails in monetary terms safe that it entails building houses, vocational training, electrification, etc. Nor would he let it out whether this is part of the reparation quantum and what the actual quantum is, as well as for how long such projects would be extended to the affected communities. However, that briefly, Dr Ngavirue is the current scenario regarding the negotiations. It is for the affected communities to inform him (Dr Ngavirue) and fellow on the negotiating team, which is which.
“The late Paramount Chief, Dr Kuaima Riruako tabled a motion in the Namibian parliament to pave way for the 1904 genocide engagement; this engagement (as per his intention) was supposed to have been on three fronts: the German Government, the descendants of 1904 genocide (wherever they may find themselves) and the Namibian Government.
Nevertheless, the Namibian government changed this format and the engagement (directly that is) is between the Namibian government and the German government,” says Honga.
Ala, Honga, the first thing should have been to develop a framework for the discussion with its approval by the Namibian parliament for the Cabinet to execute. “ How can the negotiations reach a conclusion without the Namibian parliament getting regular feedbacks as to what has been agreed on what is still pending; because I am positive that if the Namibian parliament was getting regular feedbacks they would have influenced these negotiations differently.” “As far as I am concerned the deal breaker should be the refusal of the German government to use the word genocide. Therefore, to me negotiations are on the wrong path and the Namibian parliament should immediately call the Cabinet to order and stop the process of negotiation: it is not bearing any fruits at all; rather it is confusing the Namibian Nation as to what is happening,” says Honga.
To him a descendant of the 1904 genocide, he would only be satisfied if the following are in place:
Initially the framework for reparation dialogue is discussed and agreed upon among all stakeholders (that did not happen)
Relevant stakeholders are identified at the start (e.g. decedents of 1904 genocide, German government, Government of the Republic of Botswana, Our own Government and the Government of the Republic of South Africa)
Role of stakeholders is defined
Terminologies for discussion are defined up front (to avoid any ambiguity during the negotiation process)
The apology becomes the prelude for any discussion (i.e. apology first)
A neutral arbitrator is identified and agreed upon by all (e.g. the UN)
Direct participation of the descendants of 1904 genocide at the negotiating table (and not indirectly); thus, they will be signatory to the outcome and not signed by someone else on their behalf.
Karamata says for the genocide issue to take a different dimension and direction from all current efforts, among them the ongoing negotiations between the Namibian and German governments, the undermentioned must pertain sino quanon;
A universal consensus must emerge among the genocide descendants in and outside Namibia in terms of formulating an agenda and form;
A multilateral diplomatic framework under the auspices of the UN, bringing citizens of countries were descendants of genocide reside such as Angola, Botswana, Cameroon, Namibia, South Africa, Togo, and such persons in the Diaspora, mainly due to Namibia’s lack of Universal Jurisdiction to convene such a Diplomatic Genocide Conference, as an affected party who’s impartiality would be in doubt;
Stakeholders within Namibia not only traditional authorities but other stakeholders as well be it political parties in parliament or civic societies not represented by traditional authorities or genocide committees affiliated to neither authorities or political parties must agree on a common blueprint before any talks with Germans but in line with a Universal agenda agreed to by all stakeholders in and outside Namibia;
Ethnic solidarity and unity among the victim communities are prerequisites to any resolution of the dispute with Germany;
Germany’s intentions are clear not acknowledging genocide not offering an apology not ready to pay reparations, concepts embedded in international law with legal obligations, but cleverly trying to invent new narratives of atrocities, reconstruction, terms never used in any case under international law or conventions about genocide are evidence enough to conclude that Germany is dishonest and never had honourable intentions, thus not ready to resolve the issue on the table;
Until it is understood that Genocide/Reparations dispute, is universal and not only confined to Namibia nothing will be resolved between Windhoek and Berlin none!
Germany must admit that this genocide was the first of the twentieth century, says Ndjoze-Siririka. “And since we already had the Jewish precedence, the same procedures and processes would apply. That is, they must deal directly with the Nama/Herero nations or people as they dealt with the Jewish International Conference, the state of Israel and other Jewish representatives,” he emphasises. While agreeing to a role for the Namibian government, he thinks it should “not try to usurp our role as affected communities”. “My call to the Namibian government is that it should let my people free to decide their own destiny. Provide that necessary support that you would be called upon to render,” pleads Ndjoze-Siririka.
“As for the Class Action Court Case in New York, I see this as the only salvation to this issue of Genocide, Apology and Reparation. It must be understood that our case is of genocide, and we as the affected communities, expect unreserved apology from the German government and people,” says he. According to him, the next step is for the German government to trace its steps, and remember how it dealt with the Jewish people. “Should the German government fall short in tracing their steps, they should know they have the Nama/Herero on their doorstep and we would continuously demand our right as affected communities. It is my considered view, that we have a better case despite the machinations and shenanigans of the Germans and their compradors. The two governments in their charade should know that they would not shut us up.”
In the meantime, the verdict on the class action, after two years of waiting, is out to the obvious disappointment of a section of the affected communities, supporting Germany’s countermotion that it is immune from prosecution as a sovereign nation under the Foreign States Immunity Act. However, for a section of the affected communities this is and cannot be the end of the matter declaring their intention to appeal. “We assert that Judge Swain has made some fundamental errors of law in her jurisdictional analysis and we are determined to see to it that this decision is reversed on appeal and that our claims for reparations shall proceed. To this effect we have directed our lawyers in New York to proceed with immediate effect,” Ovaherero Paramount Chief and the spokesperson of choice of the affected Ovaherero, Ovambanderu and Nama communities, who have brought the class action has declared, ushering in another indefinite period of wait and see, and of uncertainty if the US courts shall ever redeem the affected communities who for long have been seeking justice.
“The legitimate starting point should have been for any government initiating some interest in this matter, whether by social obligation or by invitation or appeal from the victims, to first affirm the victims as the owners and primary players in this course. In that way then the said government should have explored avenues or sought audience with any other government that houses any section of the victims. This would have been with a view for the said governments to canvass operational strategies and consolidate their efforts as a common force, working in a parental capacity and further playing a representative participatory role on behalf of the victims,” views the genocide descendant from the Botswana Diaspora. “There should also have been an internal modus operandi especially outlining the roles and parametres of each party’s participation between the victims and the collective governments’ structure. And the talks with Germany would be either through direct dialogue with the victims or their representatives, or elected to be done by the governments structure on terms set and agreed in the best interests of the victims (assuming they have a composite structure or any other credible representative organs),” adds he. He foresees as the only workable all-embracing approach the matter of genocide and reparations a framework of compensation supported by “individual agreements or undertakings between each respective government and its victim citizens spelling how the compensation money should be distributed or utilised, or, if it’s in development form what type of development and where?” “Under the current circumstances where there is discontent between the government and some section of the community, who cite exclusion, the process may go on, despite the bad blood, but there are already indications of a sluggish pace by the Germans on suspicion that accelerating the matter with the standoff between GRN and these concerned victims unresolved, Germany might find itself faced with multiple claims even after the matter is purported to be closed,” says then voice from the Diaspora.
“Further, should the talks go on and a conclusion reached between the Germans and GRN, there will be a problem of access to the benefit of the outcome by those in the Diaspora,” the descendant from the Botswana Diaspora thinks. “I think anybody is free to explore any avenue they feel right and convenient to achieve a goal,” adds he about the court case but adding “precedent shows there to be a bleak possibility of victory in our favor. A plethora of cases of similar nature in facts and invoking the same laws and brought by parties with similarities in circumstances as us, have been dismissed by the lower courts and Supreme Court alike every now and then. Though loss is not anyone’s dream, especially in light of the gravity of this matter on us, it will still be an opportunity for introspection and re- strategising,” opines the Diasporan.
“The United Nations (UN) recognised the Ovaherero and Nama genocide as genocide under the UN Convention on genocide. The Namibian government and that of Germany are both UN members, therefore one wonders how do these two governments get it right on renaming the Ovaherero and Nama genocide into political, moral and atrocities contrary to or in gross violation of the principles of UN genocide Convention, an international body to which they are member states.” questions Kazenambo Kazenambo, a descendant of the Diaspora in Botswana. “It is a fact that if the ongoing talks between the Namibian and German governments are about the Ovaherero and Nama genocide, but not something else, then the two governments are in gross violation of UN convention on Ovaherero and Nama genocide,” he adds.
“For me reparations would mean the beginning of emotional healing, socio-economic and cultural restoration and revitalisation, it would mean empowerment and political and economic security for the affected communities. The manifestations have to be targeted and concrete, and as evident and palpable as the effects of the genocides,” says Murangi, adding, it is hard to see the current government led negotiations leading to such an outcome. “On the side of the affected communities, every descendant has the moral authority to represent themselves on this issue. However, that is not ideal or feasible. We need a mechanism through which descendants can express themselves and directly participate in the negotiations. I see a need for a representative body that represents all Ovaherero/Ovambanderu people and Nama people in these negotiations - similar to Jewish Claims Conference. Such a body should be inclusive of people from all walks of life- traditional leaders, political leaders, civic leaders, academics, students, women and men, farmers, Namibians, and other nationalities who are descendants. It should operate independently and with transparency, with direct consultation from and feedback to the communities,” proposes Murangi.
“The current talks between the two governments are, generally speaking, a good thing and are to be welcomed by all advocates of reparative justice. These talks i.e. negotiations clearly confirms that it is simply impossible to leave historical injustices behind. But, addressing this historical injustice in a genuine way goes beyond negotiations between states and raise several questions.” says John Nakuta, a reparation activist. “But who is talking about whom and about what?” Nakuta asks.
“The notion of ‘nothing without us’ still holds true in these genocide negotiations. Perceptions of exclusion in this regard are concerning and alarming. It has the potential of the eventual outcome being rejected by a significant section of the descendants of genocide. Holding the view that is a government-to-government matter is narrow, formalistic and put form above substance. Related to this, is the secrecy with which the current negotiations are conducted. Genuine negotiations involves, amongst others, obtaining mandates and giving regular feedback to your constituency to report on progress and challenges,” says he. “Reparation for injustices in financial terms is usually mentioned as one of the key things in the process of achieving reconciliatory justice. However, monetary compensation alone is not sufficient. Non-monetary forms of redress are equally important. Key amongst these is symbolic form of redress. These may include, for instance, public acknowledgements, official apologies, memorials, commemorations, museums, curricular reforms, and the like. Such forms of redress recognise that historical injustices do not only consist of material wrongdoings. It acknowledges that even though material wrongdoings theoretically ended, their consequences continue to impact those alive today. And, that the memory of the injury demands attention years after the injustice. Hopefully, those involved in the current genocide negations between the Namibian and Germany governments will keep this in mind,” Nakuta says.
Meantime, it is an open secret there is no solid unity among the affected communities whether inside or outside the ongoing negotiations, a fact that Ngavirue is much cognisant of. A section feels marginalised by the generally considered the mainstream Ovaherero affected communities with a divine monopoly over the issue, bordering on hegemony over fellows within. Those within the negotiations may also not be said to be without any suspicion and circumspection about the ongoing negotiations as much a part thereof as they may be and have been publicly putting a façade of being an integral part thereof. These dynamics certainly must have been exploited by those envious at best and at worst destructive of the reparations cause, least of them all the German government. Not to mention the seeming cold war within the Nama Traditional Leaders Association that lately has been seeing one of the pioneers and stalwarts of the cause, Ida Hoffman not only being isolated by her community people, but also being sidelined by long-time comrades in this cause. Certainly, these dynamics must have been fueling doubts if the cause either way is and must have been on the right track, if not somehow derailed.