Justicia Shipena
The High Court ruled on Tuesday that Germany will not be joined as a respondent in the case challenging the 2021 joint declaration between Namibia and Germany on the 1904 to 1908 Ovaherero and Nama genocide.
The court also rejected a request to serve Namibian court documents on Germany in Germany, saying it has no jurisdiction to do so.
The Landless People’s Movement (LPM) leader Bernadus Swartbooi, the Ovaherero Traditional Authority, ten Nama traditional authorities, and the LPM are challenging the case.
They argue that the declaration violates the rights of genocide descendants and ignores a 2006 parliamentary resolution on reparations. They want the declaration declared unlawful and set aside.
On Tuesday, the court also ordered the addition of 24 Namibian traditional authorities not listed as applicants to the case.
The 2021 joint declaration states that Germany acknowledges the 1904–1908 killings as genocide from a current historical perspective. In the agreement, Germany commits to providing €1.1 billion (about N$21.9 billion) over 30 years for development and reconstruction projects, but it does not include direct reparations or admit legal liability.
Last month, the LPM accused the government of siding with Germany at the expense of justice for genocide descendants. It said the state was enabling “neocolonial domination” by accepting development projects in place of reparations.
However, the government has rejected this position. During the hearing, state lawyers said Germany can only be sued in its own courts and that Namibia’s High Court has no jurisdiction over a foreign state.
In their heads of argument, lawyers representing the speaker of the National Assembly, the National Assembly, the President, the cabinet and the attorney general said Germany enjoys sovereign immunity under international law. They said the Diplomatic Privileges Act of 1951 and accepted legal principles prevent Namibian courts from calling a foreign government to answer a case.
The state’s legal team, which includes Raymond Heathcote, Sakeus Akweenda, Sisa Namandje and Eliaser Nekwaya, told the court that states cannot be sued in foreign courts for acts committed during armed conflict, even when those acts amount to serious breaches of international law.
They said the international prohibition of genocide does not override a state’s procedural immunity before foreign courts. The government argued that Namibian courts “may not exercise adjudicative jurisdiction in matters in which a foreign state is a party.”
Between 1904 and 1908, more than 75 000 Ovaherero and Nama people, along with thousands of other Indigenous groups, including San and Damara communities, were killed after German colonial forces launched violent campaigns across the territory.
