Reconciliation and the Rome Statute

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The Minister of Justice & Attorney-General clarifies the government’s position on the NSHR submission to the ICC.

By Pendukeni Iivula- Ithana

During the (parliamentary) recess, Namibia was also publicly embroiled in deep debates and discussions on various fora, on the reported International Criminal Court (ICC) submission made by Mr Phil ya Nangolo of the Namibian Society for Human Rights (NSHR).
According to media reports, the submission, which I have not had the privilege of perusing, seems to apparently seek to have Namibia’s Founding President, Dr Sam Nujoma and some other Namibians, tried by the ICC for certain alleged crimes, specifically the following:
1. The alleged instigation, planning, supervision, abetting, aiding, defence and/or perpetuation of the disappearance of unnamed and un-quantified persons under the care of SWAPO in the early 1970’s;
2. The killing of 370 PLAN fighters during April 1989 by the apartheid forces in Namibia at the time, but which crime is attributed by the NSHR submission to Dr Sam Nujoma and his co-accused persons;
3. The alleged disappearance of 1600 people during the period 1994 – 1996, who were allegedly handed over to the Angolan Government by the Government of the Republic of Namibia, then led by Dr Sam Nujoma; and
4. The alleged grave breaches of human rights allegedly committed by the Namibian security forces, in the aftermath of the August 2, 1999 secessionist attack in the Caprivi Region of the Republic of Namibia.
By implication Comrade Speaker, the NSHR attempts to instigate the Prosecutor to commence an investigation in accordance with the Rome Statute of the International Criminal Court (Rome Statute).
I have observed from the public debate surrounding the matter, that there is perhaps a certain degree of insecurity being sowed in the Namibian society.

As Attorney-General of the Republic of Namibia, duly appointed in terms of the Namibian Constitution and charged with the duty to take all necessary actions for the protection and upholding of the Constitution, I feel duty bound to address the National Assembly, from a legal perspective, and offer some clarity to the elected leaders, and the nation at large on the policy of national reconciliation and on the provisions of the Rome Statute relevant to us.

Therefore, Comrade Speaker, I request that the Honourable Members view my statement today, as a statement being made by the Attorney General in the upholding and the protection of the Namibian Constitution as per Article 87 (c) of the said Constitution.

According to Article 63 (1) of the Namibian Constitution, the National Assembly has the function and power stated as follows:

I Quote:

The National Assembly, as the Principal legislative authority in and over Namibia, shall have the power, subject to this Constitution, to make and repeal laws for the peace, order and good government of the country in the best interest of the people of Namibia.
End of quote.

Article 63 (2) (c )of the said Constitution further provides that:
I quote:

The National Assembly shall further have the power and function, subject to this Constitution:

To take such steps as it considers expedient to uphold and defend this Constitution and the laws of Namibia and to advance the objectives of Namibian independence
(end of quote)

In Force

We are all aware that for Namibia, all laws which were in force when the Namibian Constitution came into force, are in terms of Article 140 (1) to remain in force until they are repealed or amended by Act of Parliament or until declared unconstitutional by a competent Court.

One of the laws that were in force when the Namibian Constitution came into force is AG Proclamation No. 13 of 1989 better known as the Amnesty Proclamation.

The purpose of this Proclamation is to ensure that for those persons who were exiled and resident outside of the territory, who were referred to as terrorists and as such, susceptible of criminal action in the Courts of the territory of South West Africa, present day Namibia, that no criminal proceedings would be instituted or continued in respect of any criminal offence committed by such persons in the territory or elsewhere.

This Amnesty was at the core of the Constitutional drafting process, and is recorded in the Preamble of the Namibian Constitution which provides as follows:

I quote:

Whereas we the people of Namibia – Have finally emerged victorious in our struggle against colonialism, racism and apartheid;

Are determined to adopt a Constitution, which expresses for ourselves and our children our resolve to cherish and to protect the gains of our long struggle;

Desire to promote amongst all of us the dignity of the individual and the unity and integrity of the Namibian nation among and in association with the nations of the world;

will strive to achieve national reconciliation and to foster peace, unity and a common loyalty to a single state;

Committed to these principles, have resolved to constitute the Republic of Namibia as a sovereign, secular, democratic and unitary State securing to all our citizens justice, liberty, equality and fraternity.

Now therefore, we the people of Namibia accept and adopt this Constitution as the fundamental law of our sovereign and Independent Republic.
End of quote.

It has been suggested by commentators in the media that Namibia has not engaged in a process similar to that of the Truth and Reconciliation Commission (TRC) in South Africa, and as such, we have not reconciled, and because we have not reconciled, we cannot build a nation.

Legally, I must disagree and correct that perception, because while we have not engaged a publicized and interrogative TRC type approach, Namibian leaders at the time, the founding mothers and fathers, made a value proposition which was in fact born of Resolution 435 of the United Nations Security Council of 1978, which sought to have a settlement of the Namibian situation.

Part of that settlement included an amnesty to the belligerents so that they may return or stay in Namibia to sit together and carve out a future without fear of being sought after for crimes, actions and deeds committed in or out of Namibia.

The policy of national reconciliation is a constitutionally laden principle, forming in my view the bedrock upon which our constitutional order is built.

Face Difficulty

Should any interpretation of the Namibian Constitution be engaged, seeking to repeal the amnesty and grant retribution that is perhaps not included in Article 23 (2), such interpretation will face difficulty, as a historical and teleological interpretation will ensure that the context of the coming into being of the Namibian Constitution is considered, failing which, I would opine that the National Assembly would have to act in terms of Article 63 to take steps expedient to uphold and defend the Constitution and advance the objectives of Namibian independence, and make the necessary laws for the peace and best interests of the people of Namibia.

Reconciliation is a complex concept, with different meanings and subtle nuances. The etymology of the word, like many English words, reveals that it derives from the Latin word reconciliare which means to make good again, to repair or to call together.

Black’s Law Dictionary 1983 defines reconciliation as follows:

I quote:
The renewal of amicable relations between two persons who had been at enmity or variance; usually implying forgiveness of injuries on one or both sides. In law of domestic relations, a voluntary resumption of marital relations in the fullest sense. Also, a statement showing the consistency of two or more other financial statements.

End of quote.

Reconciliation can therefore mean different things, to different people. My submission is that Namibia’s form of reconciliation and approach to such is not necessarily served by what some have sought in the form of the TRC approach. In fact, Namibia’s liberation struggle has merits and demerits which were considered, weighed and a decision was taken, leading to the Administrator-General gazetting AG Proclamation 13 of 1989.

Assuming that such a TRC approach was conducted in Namibia, would we have Doctor Death in attendance? Would all the RSA TRC pardoned members of the South African and South West African Territorial Force be subjected to the process? Or is it simply an inquisition into alleged SWAPO detainees?

Is it an inquisition only between the Namibian warring parties who themselves were victims of apartheid? What happens to the emotions, which we conjure up with this halfway measure? Who is to be held accountable if persons are defamed and perhaps injured by emotional sons, daughters, brothers, mothers, relatives of dead and missing persons?

What is the quantum sufficient to compensate for the trauma, for the loss of life, for carrying scars throughout one’s life of the horrors of our war?

Do we understand that we have had a war in which siblings and neighbours fought one another? Where do we end in the guilt chain? Isn’t the villager who provides protection and information for PLAN fighters as guilty as the other villager doing the same for SWATF and Koevoet?

Because national reconciliation is a constitutionally based policy, it is the duty of all Namibians, it binds all of us, political parties, civil society and individuals alike, to actively seek to promote peace and unity, to guard against any action that has the potential of disrupting our peace and stability, and to build a nation which places value in the words, “their blood waters our freedom”.

The past should not become an obstacle for the future. We have the capacity to move beyond the tension of dichotomy between compromise and the radical notions of justice.

Jelin, drawing on Greek works, sees this tension as the logic of mourning or remembrance versus political logic.

The Nuremberg model of reconciliation weighed more on retributive justice imposing a positive duty on successive governments to dispense justice for past crimes as against the pragmatic focus on the common good.

In Namibia, we compromised, and our positive efforts at achieving national unity and reconciliation are fundamental to our emergence as a nation at peace with itself. Was that compromise not morally justified for us to enjoy this peace and stability and full amplitude of our fundamental freedoms?

Many have said it, that reconciliation is only possible in Namibia. We have amazed and inspired many across the world.

We owe it to our heroes and heroines, we owe it to our communities who lived with wanton fear and death, we owe it to the citizens of our neighbours and countries of our region who were victims of apartheid aggression and destabilization, we owe it to the international community which supported our efforts for freedom and ultimately a better world for all.
Our Children

We owe it to our children, and the emerging generations, not be overcome by petty vengeances and compromise the greater good to be gained from sacrifice. Has it not been said that an eye for an eye creates less vision?

Do we not want to act at fostering a national identity in which all of us can draw pride and strength from the diversity of our colours, our cultures, languages, religions and perspectives? Do we not want to progressively foster fraternity and an equitable society shun of the antagonisms of the past?

I think we do. Let us also remember that we hold today in trust for tomorrow’s generations.

Are we utilizing our strengths and resources with due regard to their interests, or are we gratifying painful selfish urges steeped in a different past from today, which will of course be alien to tomorrow?

Before I addressed the merits of the particular referral by the NSHR to the ICC, I felt it was necessary to make those remarks, and henceforth contextualize just why it is that His Excellency the President made input into the public discussion.

I have not had sight of the submissions in the referral, and such, I will not attempt to address that which I do not know, save to say that it may very well suffice to refer to my just completed remarks on national reconciliation in addressing the matters reported as submitted to the ICC for adjudication.
For anyone to be tried by the ICC, the crime for which he or she is being tried must be a crime under the Rome Statute.

The Rome Statute recognizes the most serious crimes of concern to the international community, and under Article 5 of the Rome Statute, lists the crimes of genocide; crimes against humanity; war crimes and the crime of aggression, as crimes over which it has jurisdiction.

Articles 11 and 24 of the Rome Statute limit the ICC’s jurisdiction to those crimes, which I have just mentioned, which have occurred or were committed after, the entry into force of the Rome Statute. That means for crimes committed before the Rome Statute came into force, the ICC cannot adjudicate upon such.

Please be informed, that the Rome Statute entered into force on July 1, 2002. Namibia signed the Rome Statute on October 27, 1998 and this August House ratified the Rome Statute on June 25, 2002, consequently, Namibia is a Party to the Rome Statute of the International Criminal Court.

I would like to be further informed, that the Republic of Namibia has not yet received a request from the ICC concerning or related to the referral made by the NSHR and/or Mr Phil ya Nangoloh.

Extradition Requests

The Ministry of Justice is the central authority for all incoming and outgoing extradition requests and all incoming and outgoing requests for mutual legal assistance.

In this regard, my Ministry has dealt with the ICC and up to date, we continue to render all possible assistance to the ICC in matters that it refers to us for execution. I am constrained to opine that it would indeed surprise me to receive any such possible request for assistance with regard to what has been reported as submitted to the ICC for adjudication.

It may please you to note, Comrade Speaker, Honourable Members, that the ICC recognizes the duty of States to exercise their criminal jurisdiction for both domestic and international crimes and it is on this basis that the ICC is complementary to national criminal jurisdictions.

Under international law, States, such as the Republic of Namibia, enjoy sovereignty, which is a principle granting the State the right to deal with any issue that may arise within its de facto and de jure territory. For Namibia, Article 80 (2) of the Namibian Constitution places original jurisdiction in criminal matters with the High Court. The Prosecutor-General has full powers to make the determination whether to prosecute or not to prosecute.

With regard to the Caprivi secessionism alleged human rights abuses, such has not been reported to denote that such meets the requirements of it being one of the most serious crimes of international concern, complementarity notwithstanding.

With regard to the alleged missing 1 600 people handed over to the Angolan Government, notwithstanding that my Office has inquired with the Namibian Police, there is no known record of such report ever being lodged with it, of that stated number of people ever going missing!

And I urge the NSHR to place all evidence at their disposal with the Namibian Police in the Kavango Region or wherever it is they allege that such missing people resided or were last seen.

With the this clarification, I trust that we are in a position to offer responses to those questions you face as you travel across the country, and the world at large.

Whether we like it or not, whether we would like to theorize or simply face facts, across the country, it is disturbing news for the populace to hear that the icon of the liberation struggle, the Founding Father of the Nation, could soon be put in chains and escorted off to some Court for some crime.

While we as Parliamentarians may be endowed with the wisdom to see clear past the deliberate tactics aimed at sowing confusion, some of us may actually be inspired by such confusion which could energize our urge for retribution and the next thing you know, we may have a problem at hand.

As public figures, we have a responsibility not to manipulate those that follow us. We have a duty to guide them. We have a duty to our nation and we have a duty towards those that have paid the ultimate price for Namibia.

I trust that we may now put to rest these calls for a TRC and concentrate on nation building.

– This is a paper delivered by Mrs Pendukeni Iivula-Ithana, MP, Minister of Justice & Attorney-General in the National Assembly this week.

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