Last Friday this columnist, in view of the would-have-been resumption of the Class Action case on genocide in the United States District Court for the Southern District of New York against the Government of the Federal Republic of Germany, started postulating the various scenarios, which may and could be and have been, and could be playing themselves out until before the resumption of the court case on May 3, now July 31, and the options.
When the court resumes on July 31, the plaintiffs would now rather have to answer to the motion of the Government of the Federal Republic of Germany to dismiss their application. With Germany maintaining in her motion that the United States District Court for the Southern District of New York lacks “subject matter jurisdiction, as the Federal Republic of Germany is immune from prosecution under the FSIA (Foreign States Immunity Act)’s broad grant of immunity to foreign states.”
In their application the plaintiffs have been intending to plea before honourable Judge Laura Taylor Swain for damages against the German government, for among others, property loss, which include land, as a result of Imperial Germany’s colonial escapades in the then German South West Africa. And secondly, for inclusion in the bilateral negotiations, which have been going on between the German and Namibian governments, regarding Germany’s colonial past in the then German South West Africa, today’s independent Namibia, and particularly its negative impact on the indigenous populations, especially the Ovaherero and Nama.
One of the postulations advanced thus far has been that there’s no way the plaintiffs could dream of restorative remedies in Germany, for lack of confidence in that country, and especially its government, to deal with this matter forthright. This is in light of Germany’s plea in her dismissal motion that remedies in Germany have not been exhausted. This leaves the plaintiffs with the court option, which they may push towards the final verdict. But does this guarantee victory? No one can tell. Neither can the plaintiffs be certain about victory. Germany herself either cannot be certain about the outcome of the Class Action.
But somewhere there may be a window of opportunity for both parties (Germany and the plaintiffs) to now meaningfully and purposefully engage each other. One cannot but also postulate that this is what the judge may have had in mind when imploring the legal counsels of both parties, after January 25 when the matter was last before her, to continue engaging each other outside of court. Since then until now July 31. But one understands this date of July 31 may for now not to be. Has there thus been some horse trading going on between the two rendering July 31 unnecessary for now with a common agenda likely?
Cognisant also of the Namibian president’s belief in the futility of a lasting solution in the absence of a material part of the affected communities, as he has just articulated during his State of the Nation Address. A view which the German government may privately and secretly harbour. If this could be the ultimate scenario, certainly this may and could present a window of opportunity for a lasting solution on this matter. The ball may ultimately now squarely be in the court of a section of the affected communities. And one cannot but emphasise the need on their part for judiciousness, prudence, sobriety, and last but not the least utmost caution. Accompanied of course by a realistic and non-monolithic mindset guiding the affected communities towards a united front. This, needless to say, cannot only help expedite matters but make the facilitation role of the Namibian government less complex and much easier.
The government is said to have submitted document to the German government, which to this day has been highly classified, even to the affected communities, on whose behalf it has been claiming to negotiate. The quantum in this document is an open secret that it is in the range 400 billion Namibia Dollars. Which the German government rejected counter-proposing N$30 million or so, which again Namibia has rejected as pitiful. Thus the Namibian government has submitted another quantum, which remains a secret. Similarly, in view of a possible window of opportunity, it cannot be too preposterous to want to know the quantum of those who hitherto have been on the periphery of the current negotiations, specifically the group that has been considering itself excluded, and of course the broader civil society that hitherto has been missing if not mute.
The president’s categorical admission during SONA, that the government is not ready to compromise on the principle of reparations, as opposed to development assistance as the German government would have it, is certainly something worth noting and should be drawing the various interested and affected parties close towards a common vision, resolve and mission.