A Genocide Forgotten, No More

By: Eleanor Dennis

Walking around downtown Windhoek, it is common to see streets named after German philosophers or musicians and finishing with “Strasse” rather than street. In the popular vacation town of Swakopmund, German-language bookshops outnumber English or Afrikaans shops, the architecture could be mistaken for buildings in Bavaria and it is even common to walk several blocks before hearing any language other than German spoken. Indeed, for a country twenty-eight years free from South Africa and over one hundred years free from German control, so many German colonial markers still exist in Namibia that on the surface it may seem like the wounds inflicted upon the Namibian psyche from German colonization have been healed– they have not.

Lüderitz is the site of one of the five former Namibian concentration camps.

The first colonial claim on Namibian lands came in 1797 when Britain occupied Walvis Bay, and for the next two hundred years Namibian territory remained under the control of different colonial powers. In 1883, German trader Adolf Lüderitz bought the coastal area that now bears his name, and from that moment on German troops were deployed and gained control of Namibia, then known as German South West Africa. While some of these details are known and spoken about in public discourse, many of the atrocities that occurred at the German’s hands in Namibia were left largely unaddressed and unknown by the international community. Thanks to a very important court case that is currently being litigated in New York, this has begun to change.

Genocide and the Reparations Debate

From 1904 to 1908, Germany committed genocide against the Nama and Herero people of Namibia in what the UN Whitaker report [1] has now acknowledged as one of the biggest genocides of the 20th century alongside the Ottoman massacre of the Armenians, the Khmer Rouge and the Holocaust. The Herero people had commenced a rebellion against the German soldiers and settlers at the time and the German military ordered the extermination of their people as a result. Thousands of both Herero and Nama people were killed or driven out into the desert to die, and those who survived were interned in concentration camps around the country and systematically starved and worked to death. The result was the annihilation of 80% of the Herero people and 50% of the Nama people in an extermination so massive the ramifications are still felt in these communities to this day, although no reparations have been paid to date.

The affected communities of this genocide have been seeking reparations for these atrocities for many years, but their efforts have been fruitless. In 2001 the Herero people filed a $4 bn lawsuit against the German government and two German firms, however their claims was dismissed on the grounds that international protection of civilians did not exist at the time of the conflict [2]. It was only in 2004 that the German government formally recognized the colonial-era genocide and issued an apology [3] however they maintained that there would be no compensation for the affected communities. In 2015, the German government officially recognized the atrocities constituted genocide, but ruled out reparations again to the more than 100,000 victims [4]

Members of the Nama Traditional Authority in Hoachanas, Namibia

This begs the question of whether Germany now recognizes the genocide as a crime under international law. While German politicians have acknowledged the genocide in a series of public statements in recent years, the state continues to submit legal documentation to the court that denies that the event constitutes genocide.

Current Case

This brings us to today, when Herero and Nama chiefs have yet again brought a class action lawsuit [5] against Germany accusing the state of genocide, theft, and expropriation of property when Namibia was under German colonial rule. Their demand is simple: reckoning with colonial-era atrocities and reparations akin to what was paid to Holocaust survivors. What is interesting in this case is that it is being pled in New York in U.S federal court under the Alien Tort Statute established under the Foreign Sovereign Immunities Act. This tort has been interpreted to allow foreign citizens to seek remedies in U.S courts for human-rights violations for conduct committed outside the United States in order to give a global remedy for breaches of international law (see Sosa v Alvarez-Machain case for more info).

The problem that their cause has encountered is one of jurisdiction, because the Kiobel v Royal Dutch Petroleum precedent set in 2013 establishes that the Alien Tort Statute should not apply to crimes that do not touch and concern the U.S. In order for there to be a firm basis for jurisdiction in the US under the Foreign Sovereign Immunities Act, the Herero and Nama need to demonstrate that wealth derived from the property taken during the German colonial period has a direct link to commercial property in the US.

The lawyer for the plaintiffs Ken McCallion has put forth the central argument that the Kiobel case leaves the door open for U.S courts to gain extraterritorial jurisdiction over cases of genocide. He maintains that a number of German properties in New York were purchased as a direct result of the wealth accrued from slave labour and expropriation of property during the genocide. Furthermore, he has argued that the sale of genocide victims’ human remains to the American Museum of Natural History demonstrates a valid commercial link between the genocide and American Commercial interests. Germany’s lawyer has countered that the presence of skulls at the museum was the result of a private donation from a German anthropologist and not a commercial exchange and argues as a result that the U.S does not have jurisdiction over the case.

As of August 1st, 2018 the case has been adjourned by Justice Swain who will deliver a decision in the coming weeks. As more information becomes available, I will update this post with the results of the case.

Acknowledgement and Awareness

Members of the LRDC fight for constitutional justice for all Namibians

From the current court case to my experience during my 3.5 months in Namibia, an important theme arises for me as both an intern at the LRDC and a law student in Canada that may tie this blog post together. Living in Windhoek as an outsider who had the immense privilege of working in Namibia and meeting and forming bonds with the people there, the question of how useful acknowledgement really is came up for me time and time again.

In Namibia there are many young German expats living and completing internships and the reality of the extreme social and economic inequality is that German Namibians continue to hold a large percentage of the land and wealth in the country. The German government has acknowledged the genocide and provides generous economic aid for Namibia (which currently amounts to $14m per year [6]however for Nama or Herero individuals who have been set back by the killings of their ancestors 100 years ago, these acknowledgements may fall on deaf ears. What does it mean to really acknowledge past wrongs? If victims demand reparations and are denied, does this deflate the acknowledgement?

There are many cases of reparations being won, and examples varying from the U.S paying reparations for Japanese-American internees to Canada agreeing to pay compensation to the residential schools victims [7] show that possible, though imperfect solutions do exist to begin to address past injustices. On the other hand, many reparations cases leave victims without any relief at all and reparations fall far from the only solution required to support victims and their communities.

Thus, more uniform and universal approaches are needed to address this issue and reduce the struggles experienced by the survivors and the families of victims in accessing reparations for mass atrocities. For the moment this will not help the Nama-Herero cause. What may truly help more than acknowledgement, however, is awareness.

Germany’s genocide in Namibia was forgotten for many decades by the international community, however this is beginning to change. In 2011 a popular book was published that has increased international awareness of the Namibian genocide called The Kaiser’s Holocaust: Germany’s Forgotten Genocide and the Colonial Roots of Nazism. In addition, the current case as well as Germany’s acknowledgements post-2000 have helped to increase international awareness of this issue and there is real hope that Nama and Herero families will receive compensation. The more this issue becomes discussed in the international community the more pressure will increase upon the German government to not treat Namibian victims differently than victims of the Holocaust and receive the compensation that they deserve. A genocide and victims forgotten, no more.

[1] http://www.preventgenocide.org/prevent/UNdocs/whitaker/ 

[2] https://www.theguardian.com/world/2004/aug/16/germany.andrewmeldrum

[3] http://news.bbc.co.uk/2/hi/africa/3565938.stm 

[4] https://www.forbes.com/sites/ewelinaochab/2018/05/24/the-herero-nama-genocide-the-story-of-a-recognized-crime-apologies-issued-and-silence-ever-since/#768bd62a6d8c 

[5] https://www.forbes.com/sites/ewelinaochab/2018/05/24/the-herero-nama-genocide-the-story-of-a-recognized-crime-apologies-issued-and-silence-ever-since/#768bd62a6d8c 

[6] http://news.bbc.co.uk/2/hi/africa/3565938.stm

[7] https://www.theguardian.com/world/2017/oct/06/decades-after-government-seizure-of-children-indigenous-canadians-will-receive-compensation

 

Namibian Law: in Progress and in Flux

By: Eleanor Dennis

Living in a country whose independence dates to the decade you were born in can be a reminder of both how quickly development can happen and how long institutionalized ways of thinking can take to change. Namibia’s democracy is still relatively young, having passed through several distinct stages of English, German and South African rule before becoming the Republic of Namibia in 1990. Now an independent republic, Namibia is in the process of reforming many of their laws enacted during apartheid and determining exactly what Namibian constitutionalism will look like well into the twenty-first century.

Day to day life in Windhoek is fast-paced, cosmopolitan and hectic. The downtown core is often jam-packed with taxis and private vehicles moving people to and from work inside the city centre and to some of the towns outside. There are huge avenues with six car laneways and street names like Independence Avenue and Sam Nujoma Drive which serve as almost frequent reminders of the hard-fought liberation struggle that is never far from people’s minds.

Work at the LRDC

Members of the Hoachannas Traditional Leadership with representatives from the Ministry of Justice

My work at the Law Reform and Development Commission (LRDC) is another reminder of how young Namibia’s constitutionalism really is. The Commission came into operation in 1992 and its core mandate is to examine all branches of Namibia’s laws and make recommendations for their review, reform and development. A typical work day involves the review of bills that are making their way through the Commission before being discussed at the Cabinet Committee on Legislation (CCL) and being passed on to the Attorney General, the National Assembly and eventually the National Council.

As an intern, I also work side by side with the Chairperson of the LRDC Ms. Yvonne Dausab and often accompany her to community meetings, town halls and workshops. What this meant for me was diving head-first into Namibia’s constitutionalism and getting a rare opportunity to see a law come to life almost from start to finish. What I’ve begun to develop in my six weeks in Namibia is a bigger picture of how a country’s laws shape both its present and its future—and some of the barriers that legislation can encounter in effectuating real change on the ground.

Town hall meeting in Hoachannas with the Minister of Justice

Racial Hate Speech in Namibia

Namibian society has come a long way from its racially-charged past. Every Namibian now enjoys the equal protection of his or her constitutional rights regardless of age, sex, colour, race, tribe, disability or any other of the enumerated grounds for discrimination under Article 10 of the Constitution. On the other hand, Namibia is at a crossroads with regards to one of its fundamental post-independence values—protection against racist hate speech.

Many violations of human dignity during apartheid in Namibia have been removed through legislation and policy, however there has still not been a total break with the racialized social order. This is evidenced by the inconsistent distribution of land and resources in Namibia and also in the social sphere where racial and tribal tensions continue to result in unequal treatment of individuals.

Racialized structures and racial language have survived apartheid in spite of a modern, liberal Constitution and a profound will to break with the past. Use of words making racial distinctions between people are still strongly embedded within people’s minds and discrimination continues to occur across both racial and tribal lines. Stereotypes based on tribe are particularly harmful, and continue to impact on an individual’s access to employment, land, shelter and equal treatment.

Freedom of Expression and Anti-Hate Speech Legislation

Other countries which have similar racial histories have enacted very strict legislation to protect individuals from racial hate speech in order to address past injustices and initiate a strong break from the past. These protections must be balanced with an individual’s right to express themselves, and countries like South Africa have restricted this balance to make the perpetuation of hate speech a serious crime where prosecutions have led to jail time. [1]

Namibia has followed suit and in 1991 enacted the Racial Discrimination Prohibition Act [2] to protect the gains of the long struggle against colonization, racism, apartheid and the right to non-discrimination. Few cases have been brought before the High Court, however, and as of 2018 there have been no successful prosecutions made under this Act.

One of the landmark cases that led to a 1998 amendment of the Act is the 1996 Smith v State and Others case [3] where an advertisement in a Windhoek newspaper congratulating a famous Nazi on his birthday was challenged under Section 11 prohibiting racist speech. The constitutionality of Section 11 was challenged for derogating from the protection of freedom of expression set out in Art. 21(1) and (2) of the Constitution. The Supreme Court of Namibia used the Oakes test and while the advertisement failed on every requirement, the Court deemed that the infringement did not justify restrictions on freedom of speech under the Act because the groups of persons concerned (Jewish people) had “never featured or suffered in the pre-independence era in Namibia”. The Act’s objective was deemed to be the prevention of apartheid-type racism and while the advertisement was harmful to Jewish people, it did not espouse apartheid values and therefore the Act could not justify infringing upon the advertiser’s freedom of speech in that situation.

Former Dean of the University of Namibia Faculty of Law Nico Horn criticizes the Smith case precedent, [4]  arguing that the Act should not only offer protection to previously disadvantaged groups in a country where racism has many forms and minority groups continue to face discrimination today. Horn argues that a broad interpretation of the term “racial” group in the Racial Discrimination Prohibition Act is needed to cross the bridge from a racist to a non-racist society and the Smith case failed to further this. Alternatively, the former Ombudsman Clement Daniels argued [5] that laws that prohibit racism are not enough to curtail racist expression. Laws that promote national unity and anti-racism promotion campaigns are equally needed in order to change one of the roots of the problem—people’s mindsets.

Moving Forward with the Racial Discrimination Prohibition Act

The fact that only few cases have ever come to Court under the Act has led many to question its effectiveness. There are a myriad of reasons for this, ranging from victims having inadequate information concerning their legal rights, lacking the resources to enter into the complex judicial process, and fearing social censure if they come forward.

An article that Ms Dausab and I published in The Namibian on hate speech legislation

This puts Namibia in a particularly important position when it comes to determine which direction the country will take on freedom of expression and what hate speech regulation will look like. Legislation exists protecting individuals from discrimination and racist hate speech, however as long as the Act remains unarticulated by the Courts confusion will remain in terms of what legal protections exist to combat racism in a judicial context in an independent Namibia.

Moving Forward at the LRDC

Like Namibia’s constitutional law maturing case by case and bill by bill, I’m learning to take my experience here at the LRDC step by step. Namibia’s past and present is more complex and nuanced than I can manage and at times I fear I am only scratching the surface of the real-life issues a country must grapple with in the first decades after its independence. Like Namibia, I too am developing an understanding that takes two steps forward before falling one giant step back when faced with issues like racism that legislation has not be effective at combatting.

The perspective the LRDC is restricted to is a legal one, but that perspective need not be the only one. Namibian law is a work in progress and so is building a constitutional democracy. That much, at least, I understand. 😉

 

[1]   https://www.bbc.com/news/world-africa-43567468

[2]  http://www.lac.org.na/laws/annoSTAT/Racial%20Discrimination%20Prohibition%20Act%2026%20of%201991.pdf

[3] https://namiblii.org/na/judgment/high-court/96/16

[4] http://www.kas.de/upload/auslandshomepages/namibia/Namibia_Law_Journal/09-1/horn1.pdf

[5] https://www.namibian.com.na/index.php?page=archive-read&id=147374

 

 

 

 

 

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