Hereros, Namas positive of victory
> Magreth Nunuhe
WINDHOEK – NEW YORK-based lawyer representing Namibia’s Ovaherero and Nama communities in their lawsuit against the German government says that the new case has a valid cause of action and can therefore be tried in the jurisdiction of a United States Federal Court.
Speaking to The Southern Times this week from New York, Kenneth McCallion, who heads a team of civil litigation and estates/trusts attorneys at McCallion & Associates in New York, said that the new lawsuit filed on 5 January 2017 is different from previously dismissed cases in that court. He said the previous cases were dismissed on grounds that they did not have a valid cause of action and could therefore not be tried in the US.
In 2001, members of the Ovaherero community attempted to sue the German Government and two German companies, the Deutsche Bank and Woermann Line in the United States seeking reparations for genocide on the basis of atrocities committed against them during the early 1900s.
But their cases did not hold up in court and were dismissed in June 2004 and April 2006 for failure to state a valid cause of action.
“Those cases were different and significant, but we have different claims now,” he said, pointing to the fact that the communities were not only seeking reparation damages but were also suing Germany for excluding them from current negotiations between the German and Namibian governments concerning the 1904-1908 Genocide of the Ovaherero and Nama people. The initiators of the legal challenge are Ovaherero People’s Paramount Chief Vekuii Rukoro as representative of the Ovaherero Traditional Authority, Chief and Chairman of the Nama Traditional Authorities Association, David Frederick and the Association of the Ovaherero Genocide in the USA.
McCallion said that the primary cause of action was the defendant’s (Germany) violation of international law and the violation of the rights of indigenous people to be excluded from such negotiations as both Germany and Namibia are party to the U.N. Declaration on the Rights of Indigenous Peoples, adopted by the U.N. 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.”
Germany has been Namibia’s biggest development aid benefactor and has donated over N$13 billion worth of aid since independence in 1990.
This included rolling out the Namibian-German Special Initiative Programme (NGSIP) in 2007, in which the German government reportedly spent over N$500 million on communities that suffered under German colonial rule to uplift the affected communities in seven regions of Namibia by supplying them with livestock.
But the Nama and Ovaherero people have been continually demanding that the German government pay reparations for genocide and crimes committed against them by German colonial troops between 1904 and 1908. They argued that development aid cannot be regarded as reparation.
The Namibian government appointed Dr Zed Ngavirue, the former ambassador to the European Union, 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 directly affected by the genocide have lamented the negotiations, claiming they have not been inclusive. The aggrieved communities also complained that the negotiations are being dictated by the German government.
Rukoro has constantly attacked the Namibian government for excluding the affected communities from the negotiations. While Niema Movassat, MP of the opposition party – the Left Party in the German Bundestag, also hinted that a viable final solution was only possible if all sides were included in the process extensively.
“The plaintiffs, therefore, seek an appropriate order and judgment from the US court requiring that they, as the lawful representatives of the Ovaherero and Nama peoples, be included in any negotiations in order to ensure that their minority, indigenous and human rights are properly protected, and that their claims against Germany relating to the 1904-1908 Genocide not be compromised or settled without their participation or permission,” McCallion said in statement issued to The Southern Times.
Communities have also argued 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.
They further state that the question of reparation is enshrined and is based on international protocols and conventions, therefore what the Nama and Ovaherero people lost cannot possibly be fully compensated by projects.
This includes cultural damage, identity loss and current social positioning in Namibia which would constitute an adequate level of restitution of dignity, positions and land.
International civil society groups and descendants of the victims of genocide have criticised the German government in the way they evaluated and paid the Jews reparations for genocide, while side-stepping responsibility for the Namibian genocide.
With more than 40 years of legal practice, McCallion has handled successful settlement claims for Jewish Holocaust survivors by the Nazi regime and its collaborators between 1933 and 1945.
He has also successfully won settlements for families of victims of the French Holocaust of 1940 and 1944 refer to the persecution, deportation, and annihilation of Jews and Roma between, among others.
He said that before the plaintiffs can reveal a breakdown of what reparation claims they are making against Germany, they are seeking to sit at a table for discussion and negotiations.