Stance on the joint declaration by Germany and Namibia

Dear editor, please allow me space in your esteemed newspaper to bring to attention the so-called 'joint declaration' that has been rejected by the two affected communities. Ever since the joint declaration was announced in May 2021, we have remained consistent in our position of rejecting the document in its entirety as a matter of legal, moral and ethical principles. The Namibian National Assembly has a constitutional mandate to protect and assist disadvantaged citizens of Namibia who have historically been the victims of colonialism. Ever since the independence of Namibia, both the National Assembly and its executive branch have put in place measures to deal with the injustices of the apartheid colonial past, albeit in manners that seem rather questionable and have a clear undertone of corrupt practices. However, the injustices of the German colonial past, which continue to reverberate in Namibian society, have never been addressed sincerely. We have rather seen that the Namibian government has dragged its feet on the particular injustice and crime of not only German colonialism but also the crime of genocide committed against the Nama and Ovaherero people. It is public knowledge that the parliamentary debate on the motion resulted in a National Assembly Resolution on 26 October 2006, which laid out the route for any negotiations as follows: • Germany must acknowledge genocide. • Affected communities are entitled to reparations. • Government is an interested party in discussions. • That dialogue be convened between the German and Namibian governments and representatives of the affected communities. Contrary to the mandate, special envoys were appointed in 2015 to represent the two governments that insisted on state-to-state negotiations. Their insistence was that the Nama and Ovaherero people must join any discussion as technical advisors with no decision-making power. Our rejection of bilateral negotiations and our insistence on tripartite negotiations have now been presented as a refusal on our part to participate in any negotiations. Despite the fact that the resolution laid out a clear path, the Namibian government, in collaboration with Germany, entered a different mode for negotiations. We believe this is a position of convenience for both governments but one that disadvantaged the genocide-affected communities. Full and effective participation: As we all know, representation is not necessarily participation, and participation can only be valid if the necessary competencies are appropriated to enable all representatives to participate equally. This has not been the case with the unilaterally proposed structure put up by the Namibian government and accepted by the German government for negotiations. The Namibian government, in total disregard for all international instruments for participation rights of indigenous people, attempted to coerce traditional leaders into a snare of paralyses. States must abide by human rights and international law. This applies to all state actions and, therefore, also to intergovernmental negotiations. It is widely recognised today that the participation rights of indigenous communities, such as the human right to free, prior and informed consent, are part of customary international law. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states: “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.” Participation rights are also codified in Article 25 of the International Covenant on Civil and Political Rights (ICCPR) and the International Labour Organisation (ILO) Convention No. 169. They need to be interpreted in light of the fundamental right to self-determination as laid out in Article 3 UNDRIP, Article 1 ICCPR, Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and in conjunction with Article 5 of the International Convention on the Elimination of Racial Discrimination (ICERD). Both Germany and Namibia have the legal obligation to respect, protect and fulfil these rights. Our position To the German foreign office, which has recently declared that there will be no renegotiation, we have the following to say: The joint declaration is in essence a reflection of the racist argument that Germany does not see the Nama and Ovaherero people as subjects of law, as it argues in the New York court document. There is a clear contradiction between the political and diplomatic statements of the German foreign office and its legal argument. This clear contradiction sometimes makes us in the OTA and NTLA wonder whether those who only call for renegotiation of a quantum have actually read the official German position in court records and what Germany actually means when it consistently says “genocide from today’s perspective.” Germany argued that we were unable to show a “violation of international law” by arguing that the genocides were legally permissible. On that basis, Germany argued to the court that, in fact, it did absolutely nothing wrong and cannot be held liable for murdering people and taking their property if those people had no right to exist. This barbaric, racist (and flawed) legal position has been confirmed repeatedly by the German foreign office and in the joint declaration. That is not recognition. It is also not precisely “genocide denial.” Rather, it is genocide justification, acceptance, and defence. That is why we say it appears the German government has actually now embraced the genocide again. Germany’s only argument was this: that the Ovaherero and Nama were not “peoples and tribes capable of life and culture” but rather belonged to a group of people that the German foreign office refers to as “wild tribes” and “savages’, to which Germany can today without any shame refer in its 'joint declaration' from today’s perspective. Therefore, we the affected Nama communities, shall join hands with our Ovaherero counterparts to fight the continued injustice committed against us by both the Namibian and German governments. *Paul Thomas is a member of the Nama Traditional Leaders Association Technical Committee and a direct descendant of the victim communities. - This opinion piece has been condensed due to space limitations.