Renthia Kaimbi
Amnesty International (Amnesty) has formally applied to the High Court to participate as ‘a friend of the court’ in the legal challenge against the Namibia-Germany Joint Declaration on the 1904-1908 genocide.
Speaking to the Windhoek Observer yesterday, paramount chief Mutjinde Katjiua of the Ovaherero Traditional Authority (OTA) affirmed that the organisation brings both international legal expertise and a historic friendship with Namibia to assist in securing justice for the Nama and Ovaerero people.
The international human rights organisation filed an application on Tuesday seeking permission to intervene as amicus curiae in the review case brought by Bernadus Swartbooi, the Landless People’s Movement, the OTA and 10 other traditional authorities representing various Nama and Herero communities.
On the opposing side are the Speaker of the National Assembly, the National Assembly itself, the President, the Cabinet, the Attorney-General, and a host of traditional authorities spanning Ondonga, Mbanderu, Damara, and San communities, among others.
The application challenges the legality of the Joint Declaration between Namibia and Germany, which the applicants argue was improperly handled by Parliament and is inconsistent with the Constitution, the National Assembly’s 2006 genocide motion, and international law.
Katjiua stated that Amnesty’s involvement represents a significant development in the legal battle.
“Amnesty International are officially with us as a friend of the court, highlighting the international laws that Namibia has ratified,” Katjiua said.
“They have the capacity in terms of legal minds to assist us, be objective and not necessarily in our favour, but to guide the process.”
Katjiua emphasised Amnesty’s long-standing relationship with Namibia, noting that the organisation has been a friend to the country since before independence.
“Amnesty International have been friends of Namibia since before independence and are coming back to make sure that the Nama and Ovaherero people are well represented and that the reparations case gets the necessary international attention and recognition that it deserves,” Katjiua added.
If admitted to the proceedings, Amnesty intends to make submissions on three main areas of international and regional human rights law.
The organisation will argue that victims of serious violations of international human rights and humanitarian law have a right to effective remedies, including adequate reparations, and that reparations processes should be inclusive and victim-centred, with affected communities meaningfully involved in their design and implementation.
The third submission concerns Indigenous Peoples’ right to participate in decisions affecting their rights, with states having a corresponding obligation to consult and cooperate with them in good faith.
Amnesty has specifically raised concerns about paragraph 20 of the Joint Declaration, which states that the financial contributions contemplated in the agreement “settle all financial aspects” of the issues relating to the past addressed in the declaration.
The organisation argues that this provision could affect the Ovaherero and Nama peoples’ ability to pursue future legal claims relating to violations committed between 1904 and 1908.
According to Amnesty, the Joint Declaration materially affects the rights of the Ovaherero and Nama applicants to effective remedies and adequate reparations for historical violations, including the taking of their territories, resources, and cultural and spiritual property.
The organisation emphasises that its proposed intervention will be independent and impartial, supporting neither side in the dispute and introducing no new facts.
Instead, Amnesty intends to assist the court with international and regional legal authorities. The organisation points to Article 144 of the Namibian Constitution, which provides for the application of general rules of public international law and international agreements in Namibia, subject to the Constitution and statutory law.
Amnesty argues that there is limited Namibian jurisprudence on the interpretation and application of this provision, making the matter one of jurisprudential importance that could become a precedent for future reparations litigation in Namibia and elsewhere.
Amnesty’s application follows attempts by its lawyers in June to obtain the parties’ consent to its participation.
Some applicants consented to the intervention, while no response had been received from the respondents when the affidavit was filed.
The organisation is seeking permission to file heads of argument and present brief oral submissions at the hearing of the main matter.
The OTA has consistently rejected the Joint Declaration, maintaining that descendants of the genocide victims were excluded from the process.
Katjiua, who has campaigned for reparations since 1993, has argued that the Ovaherero people must have a meaningful role in all matters concerning genocide and reparations.
The traditional authority maintains that the 2006 parliamentary motion envisaged a trilateral process involving the Namibian Government, the descendants of the genocide victims, and Germany.
The legal challenge therefore places the constitutionality of the Joint Declaration, parliamentary procedure, reparations, and the participation of affected communities at the centre of the dispute.
Amnesty’s proposed intervention could add an international human rights dimension to a case that has already become one of Namibia’s most significant legal battles over the country’s colonial past and the question of reparations.
The application has been set down for 18 August at 08:30, if unopposed.
