Windhoek – The Ovaherero and Nama people of Namibia have vowed to march on “battle after battle until the war is won” following a major setback on Wednesday when the US Federal Court in New York dismissed the lawsuit for war crimes and genocide against Germany in a US Federal Court on account of lack of jurisdiction.
Advocate Vekuii Rukoro, Paramount Chief of the Ovaherero, who is also the first plaintiff in the court case, said in a statement that it was a disappointing ruling for them and all nations of the world who are committed to justice and fairness for all.
Speaking on behalf of the Ovaherero Traditional Authority (OTA), Rukoro asserted that the US District Judge Laura Taylor Swain made some fundamental errors of law in her jurisdictional analysis and “we are determined to see to it that this decision is reversed on appeal and that our claims to reparations shall proceed”.
“To this effect, we have directed our lawyers in New York to proceed with immediate effect,” he added.
The Paramount Chief said they had a just cause and their resolve is reinforced by the international support the case has enjoyed over the years from international organisations. They have received international support such as from the UN and traditional leaders such as Botswana’s Tshekedi Khama and Dr Alfred Xuma, the president general of the African National Congress of South Africa, who petitioned to the UN in support of the Ovaherero case against South Africa’s schemes to annex Namibia (former South West Africa).
Judge Swain reportedly stated in court that Germany was immune to claims by descendants of the Herero and Nama tribes, depriving her of jurisdiction over its role, which was the reason the court struck the case off the roll.
Rukoro, together with the late David Frederick, Chief and Chairman of the Nama Traditional Authorities Association, the Association of the Ovaherero Genocide in the USA and Barnabas Veraa Katuuo are the plaintiffs in the case.
The lawsuit against Germany was filed at the beginning of 2017.
The primary cause of action in the case is the defendant’s (Germany) violation of international law and the violation of the rights of indigenous people to be excluded from current negotiations between the German and Namibian governments concerning genocide. Both Germany and Namibia are parties to the UN Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly on September 13, 2007.
Article 18 of the 2007 UN Declaration provides that “indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”
The Namibian Government appointed, Dr Zed Ngavirue, who is the former Namibian Ambassador to the European Union (EU), Belgium, the Netherlands and Luxembourg, as the special envoy to head talks with the German Government and their special envoy, Ruprecht Polenz, on the genocide issue.
However, communities that were directly affected by the genocide have lamented that the negotiations are not inclusive and are being dictated by the German Government.
The communities continue to lambast the Namibian government for leaving out the affected communities in the negotiations. They also argue that reparations proposed in the form of developmental aid may not be specifically targeted at the affected communities, but amount to ordinary development aid, which is no different from the developmental aid Germany and many other countries have been giving Namibia over the years.
The Nama and Ovaherero people have been ceaselessly demanding that the German government pay them reparations for genocide and crimes committed against them by German colonial troops between 1904 and 1908 in Namibia as development aid cannot be regarded as reparation.
It is not the first time the Ovaherero community sued Germany; in 2001, they sued the German government and two German companies, the Deutsche Bank and Woermann Line in the United States seeking reparations for genocide based on atrocities committed against them during the early 1900s.
But the cases were dismissed in June 2004 and April 2006 for failure to state a valid cause of action.