Genocide: Many scenarios could play out before May 3

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As all and sundry may be aware, especially followers of the class action instituted by the Ovaherero and Nama in the United States District Court for the Southern District of New York, this case has been postponed to May 3.

The case was postponed after the court initially rejected the German government’s dismissal motion for lack of jurisdiction. On January 25, it reinstated the German motion of dismissal. The court thus gave the plaintiff until February 17 to answer to the German government’s dismissal motion, which the plaintiff has done.

Now the stage has been properly set for the case to start in all earnest come May 3. But it must be clear that the German government is not prepared yet to go and answer to the substance of the class action application, which is genocide and reparations, and resultant damages should the plaintiffs be successful.

The German government is not going to answer to the second plea, which is for the inclusion of the applicants in the ongoing negotiations between the Namibian and German governments on genocide and reparations. Rather, the German government would plead with the court to adjudicate on the motion of non-jurisdiction. In fact, as matters stand now, the applicants must answer to Germany’s motion for the dismissal of their application. Only after the court has dispensed of this motion could the class action proceed on substance.

At this stage, one cannot tell what has been transpiring since January 25 when the case was postponed – and up to May 3 when the case resumes – except for the fact that Rukoro and company has met the deadline of February 17 to reply to Germany’s motion. However, one cannot but note that Judge Swain opined and/or advised that the lawyers of the two parties should engage each other on the matter. What this actually could mean, and how the lawyers may and could engage each other to what ends and purposes is as much uncertain and unpredictable. But there are many scenarios, which could play themselves out. The German government argues in its dismissal motion, among others, that “the prudential exhaustion of remedies doctrine in the FSIA expropriation cases is grounded in the idea that comity among nations and international law favours giving a state accused of taking property in violation of international law an opportunity to redress it by its own means, within the framework of its own legal system before taking may be aired in foreign courts”.

Is this one route that lawyers of the two parties may go as advised by the court to engage each other? One cannot tell. It is hard to see whether plaintiffs may be amenable to have their case tested, in this case, allow Germany to redress such by its own means, whatever “own means” in this regard may mean. This is simply because the plaintiffs do not and never had any confidence in the government of the Federal Republic of Germany.
Thus, to them, this may be a non-starter.

As much the outcome of the dismissal motion despite some quarters of the plaintiffs being upbeat about victory on this motion, the “own means” route is one the plaintiffs may not readily contemplate if ever. The other scenario is for the two parties’ lawyers touting with the idea of including the plaintiffs in the current state-to-state negotiations between the Namibian government and the German government from which they claim to have been excluded. In fact, inclusion in the current negotiation is one of their pleas in their class action
application.

In fact, the plaintiffs have been clamouring to join the dialogue so that they can speak for themselves. Even as recent as last month on the One-on-One programme on the Namibian Broadcasting Corporation, Ovaherero Paramount Chief Vekuii Rukoro reaffirmed this, lamenting the fact that something fruitful has as yet to materialise from their meeting last year with the President of Namibia, Dr Hage Geingob. At that meeting, they presumably agreed 90 percent or so about the possibility of the plaintiffs joining the ongoing negotiations between the two governments.

Indeed the president in answering questions on genocide and reparation negotiations following State of the Nation |Address (SONA) on Wednesday, confirmed reaching an agreement with Rukoro and company on some salient points surrounding this vexed question, pending a follow-up meeting, which has since been pending.

The government is said to have submitted a claim to the German government, which to this day has been a highly classified document, even to the affected communities, on whose behalf it has been negotiating, albeit, without their expressive mandate.

By the president’s own admission on Wednesday, the government is not ready to compromise on the principle of reparations, as opposed to development assistance as the German government would have it.

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