Herero and Nama file suit against genocide agreement

One of Namibia's top lawyers is taking on his country's heavyweights. Patrick Kauta's lawsuit, "Bernadus Swartbooi v. Speaker of the National Assembly," takes aim at the president, government, speaker of parliament, parliament and attorney general.

Herero and Nama representatives announced last Friday (20/01) they had filed a lawsuit against the Joint Declaration with Germany.

The charge is just as powerful: According to the claim, which has been obtained by DW, the joint declaration by Germany and Namibia on the genocide of the Herero and Nama people between 1904 and 1908, in what was then the colony of German Southwest Africa, is illegal.

An apology and billions in aid

The agreement, yet to be signed by Namibia, has been on the table since 2021. In it, Germany makes its first official apology for the genocide. It also states that the German government wants to finance development projects in the Herero and Nama territories with €1.1 billion ($1.2 billion) over 30 years.

Charismatic and vocal opposition politician Bernadus Swartbooi and 11 traditional representatives of the Herero and Nama are behind the lawsuit. Among them is the Ovaherero Paramount Chief, Mutjinde Katjiua, who refers to a resolution passed by the Namibian parliament in 2006, according to which the descendants of the victims should negotiate directly with Germany and receive compensation. From the plaintiffs' point of view, the treaty with Germany violates this.

"The Joint Declaration seeks bilateral aid. It denies the victims of reparations," Katjiua told DW.

Was the Namibian parliament left out?

The case centers on two main claims: First, that the parliamentary speaker acted illegally when he broke off debate over the agreement. And second, that the agreement to settle all financial aspects of the German colonial period in Namibia with the €1.1 billion in development aid is illegal as well.

"Under no circumstances should the Namibian government have entered into such a far-reaching commitment without parliamentary review and approval," German international law expert Karina Theurer, who advises Kauta, told DW.

For Theurer, the lawsuit is a milestone: "It is the first time in history that an intergovernmental agreement on the legal processing of colonial crimes is being negotiated and decided before a court of a former colony," she said.

In what is now widely accepted to be the 20th century's first genocide, conservative estimates say that about 65,000 of 80,000 Herero (up to 75% of the population at the time), and at least 10,000 out of 20,000 Namas were killed under German rule. In total, up to 100,000 people are said to have died at the hands of German forces in what is now called Namibia.

Previous attempts by the Herero and Nama to seek compensation from Germany, by filing a lawsuit in a US court in 2017, for example, have failed.

Still, the Namibian government is likely to reject the plaintiffs' position. When Kauta's team wrote to the attorney general in September 2022 about their view that the agreement was illegal, the response they got a few days later said "there is no substance in such assertions," and that they apparently lacked knowledge of the Namibian constitution and the powers of the president and the government.

The court may not necessarily follow that reasoning, however. "Namibia's judiciary is very independent. That gives hope that the course of the lawsuit and the decision will meet with a minimum of acceptance," German-Namibian Africanist Henning Melber told DW.

At an impasse

But the lawsuit gives both countries less room to maneuver in reaching reconciliation, even before a court decision is made. Germany wants to implement the agreement as quickly as possible. In November 2022, DW reported that talks on possible amendments were expected to begin soon. According to news magazine Der Spiegel, Berlin has offered to pay the promised €1.1 billion in fewer than 30 years. But it has also insisted that the joint declaration will at most be supplemented, not renegotiated.

The Namibian government, on the other hand, wants official reparations and more money — which would not be possible without renegotiation. Reconciling these two positions would be like trying to "square the circle,” said Namibia expert Melber. 

The lawsuit only further complicates the situation. "The two governments should now actually refrain from implementing the joint declaration,” said international law expert Theurer. "They have to wait for the court's decision."

This article originally appeared in German.