Justicia Shipena
The Namibian government has argued that Germany can only be sued in its own courts. It said the country’s High Court has no jurisdiction over Germany in the ongoing genocide case.
In its heads of argument, government 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 and cannot be brought before Namibian courts.
The state’s legal team, which includes Raymond Heathcote, Sakeus Akweenda, Sisa Namandje, and Eliaser Nekwaya, argued that the rule of state immunity, accepted by international law and the Diplomatic Privileges Act of 1951, stops Namibia’s courts from having power over a foreign government.
“The applicants’ joinder application must fail for one reason: Germany enjoys immunity under customary international law. Therefore, this court has no jurisdiction over Germany,” the submission reads.
The lawyers said states cannot be sued in foreign courts for acts committed during armed conflict, even when those acts amount to grave breaches of international law.
The case was filed by Landless People’s Movement (LPM) leader Bernadus Swartbooi and 12 traditional authorities, including the Ovaherero, Witbooi, Afrikaner, and Topnaar Traditional Authorities.
They seek to overturn Parliament’s decision to note the Namibia–Germany Joint Declaration, which aims to promote reconciliation over the 1904–1908 genocide.
The applicants argue that the declaration is unconstitutional because it was never ratified by parliament and excludes affected communities. They also want Germany joined to the case, arguing that sovereign immunity should not apply in cases involving genocide and other crimes that violate jus cogens norms, such as slavery and war crimes.
The government maintained that while international law prohibits genocide, the prohibition does not override the immunity of a sovereign state before foreign courts.
It further stated that Namibian courts “may not exercise adjudicative jurisdiction in matters in which a foreign state is a party.”
The state asked the High Court to dismiss the application to join Germany and to refuse the request for edictal citation—the process that allows a party outside Namibia’s jurisdiction to be sued.
“For the reasons set out above, this court lacks jurisdiction over Germany. The application for edictal citation stands to be refused on that basis alone,” the state submission said.
An interlocutory hearing took place on Tuesday.
On the same day, the LPM accused the government of siding with Germany at the expense of justice for victims of the 1904–1908 Herero and Nama genocide.
The party described the government’s legal actions as a “betrayal” of genocide victims, saying it has chosen to protect Germany instead of pursuing accountability.
The LPM also criticised the decision to hire advocate Heathcote to argue that Namibian courts have no jurisdiction over Germany, calling it a “wasteful expenditure” of public funds.
Germany pledged €1.1 billion (about N$20 billion) over 30 years for development and reconciliation projects but did not include direct reparations or legal liability.
Traditional leaders and the LPM argue that the negotiations excluded genocide descendants and violated a 2006 parliamentary resolution.
In 2023, they filed a High Court application seeking to have the declaration declared unlawful and to join Germany as a respondent.
The government has defended the agreement, describing it as a diplomatic effort aimed at reconciliation rather than financial compensation.
President Netumbo Nandi-Ndaitwah, during the country’s first Genocide Remembrance Day earlier this year, said Germany has acknowledged the atrocities and issued an apology, but the process is “not yet complete”.
On 2 October, Amnesty International called on Germany to fully acknowledge its legal responsibility for the genocide and provide reparations to descendants of the victims.
The human rights organisation said both the German and Namibian governments must ensure the full and meaningful participation of the Ovaherero and Nama peoples in any reparation process.
Amnesty International said the German government continues to deny it has a legal duty to provide reparations.
It stressed that under international law, states responsible for colonial crimes must provide full and effective reparations, including restitution, compensation, rehabilitation, and guarantees of non-repetition.
On 2 October 1904, German commander General Lothar von Trotha issued a proclamation ordering the extermination of the Ovaherero people.
A few months later, on 22 April 1905, he extended a similar directive against the Nama people.
Between 1904 and 1908, it is estimated that more than 75,000 Ovaherero and Nama, along with thousands of other Indigenous Peoples, including members of the San and Damara communities, were killed under German colonial rule.
