An unfortunate situation is unfolding on the reparations negotiations between the Namibian and German governments. It is reported that the OvaHerero Paramount Chief, Advocate Vekuii Rukoro, and Nama Chief Dawid Frederick plan to institute legal proceedings against the German government over its belligerent snubbing of their calls for compensation and of negotiating in bad faith.
The bone of contention seems to be what the two traditional leaders perceive as “exclusionist diplomacy” imposed by German on the Namibian government through which the two traditional leaders have been excluded in on-going negotiations between the two governments on the thorny issue of reparations. “We shall not be bound by or accept any decisions made in secret proceedings in which we had no input whatsoever,” they have vowed.
This declaration by the Chiefs is legitimate in the face of wilful prevarication by Germany on the reparations issue. However, in as much as one cannot but understand the frustrations, sense of humiliation and betrayal caused by the delay in finalising the reparations issue, one must also recognise the dilemma that the declaration by the Chiefs presents to the Namibian government to conclusively carry out its duties, through international law, on the dispute.
While the declaration by the Chiefs may be seen as a brave move to expedite a resolution on the reparations demands, it may also be counter-productive and an impasse to the genocide reparations demands.
It is imperative that the government consults and takes into confidence the affected communities during the process of negotiations. This will erase all doubt that the government is negotiating in good faith and that it is doing everything in its powers to find a speedy resolution on the issue. In the end, however, government retains the prerogative on the composition of the parties to the negotiating table, including the agenda and framework of the negotiations. Attempting to substitute the constitutional role of the government to represent Namibians in their claims against foreign governments and institutions is not only ill-advised but an embarrassment to the government.
The genocide reparations debate falls within the ambits of international law and can best be dealt with through international relations existing between Namibia and Germany. International law is a distinctively legal system of regulating the relations between states. Non-compliance or breach of agreements, including delays in reaching agreement on a particular issue does not destroy the legal quality of international law. German’s prevarication on reparations flouts and ignores, to a large measure, its international obligations to the victims of its genocide. The point, however, is that through the on-going negotiations between the two governments, recognition of German’s observance of international law on the matter has been established. The international legal regime may be described as consisting of a body of laws, rules, legal principles that are based on custom, treaties or legislation and define, control, constrain or affect the rights and duties of states in their relations with each other. Broadly speaking, international law is a body of rules and customs by which sovereign states are guided in their relations with each other. It is based on mutual consent of sovereign states. International law is first and foremost the means by which the relations between nations are regulated. This therefore poses a bigger challenge for one to place undertakings of international relations in the hands of traditional leaders.
However frustrated our Chiefs may be with delays in reaching an amicable solution on the reparations issue, international law and the conduct of international relations between states is very clear. The current negotiations between Namibia and Germany may appear to be vague on a number of things to the affected communities.
However, the government is unequivocal that Germany is bound to fulfil its international obligation with regard to paying reparations. On this score, it is important that we all support government efforts to bring a closure to this sad episode in our history. We entrusted this government, through the ballot, to contractually defend and promote our interests domestically and internationally. We therefore need to give the government enough space to deal with this matter within that contract and trust.
It is important to note that in international law reparation refers to the process and result of remedying the damage or harm caused by an unlawful act. Among others, the purpose of reparation is to re-establish the situation that existed before the harm occurred; serving as a vehicle for reconciliation; deterrent to a repetition of the same genocide; restore relations between the violator and the injured parties; and consequently repair or rehabilitate the physical and psychological integrity and dignity of the victims of the genocide. In international law, a breach of an international obligation gives rise to a duty to repair the harm caused, and this is what the government is trying to make Germany do. Relations between two sovereign states are directly established between them bilaterally.
Resolutions to conflicts that arise between them, including reparations of genocide, should be logically conducted between their respective government representatives. Other channels or self-interest structures will only serve to delay the resolution process.
The legitimate question could be that if Germany paid reparations to Armenians, why it is still dragging its feet on paying reparations in Namibia? This notwithstanding, we should bear in mind that the art of negotiations requires a lengthy process of persuasion and patience.
• Dr Charles Mubita holds a PhD in International Relations from the University of Southern California.