Namibia parliament sittingFrom live coverage of a sitting of the Nambian Parliament.

[This is an excerpt from an article in The Round Table: The Commonwealth Journal of International Affairs.]

Too little too late?

The result of the protracted negotiations has triggered divided responses.

On a closer look, the declaration avoided a far-reaching precedent. For the European Center for Constitutional and Human Rights it represented a ‘lost opportunity’:

That the ‘reconciliation agreement’ will be published as a mere Joint Declaration speaks volumes. The preceding negotiation process furthermore disregarded international participation rights based both in treaties and customary international law. (Imani et al., 2021, p. 1)

Critics bemoan among other matters that governments were ‘seeking forgiveness without listening to descendants’ (Hitchcock & Kelly, 2021). Reactions among considerable parts of the descendants of the most affected communities were overall negative and considered an insult (Petersen & Ngatjiheue, 2021). The agreed package stipulates an amount of 1.1 bn Euro, of which 1.05 bn are earmarked for development projects over the next 30 years, ‘to assist the development of descendants of the particularly affected communities’, as the Joint Declaration revealingly so clarifies. This equates roughly to the amount spent by German development cooperation with Namibia during the last 30 years. Germany had always maintained that as a kind of historical obligation Namibia since Independence received the highest per capita development aid of all countries. For the Ovaherero Paramount Chief Vekuii Rukoro and others, this added insult to injury (Kasuto & Kathindi, 2021).

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The official German statement issued by the Foreign Ministry stressed that the recognition of genocide does not imply any ‘legal claims for compensation’. The ‘substantial programme … for reconstruction and development’ is declared as a ‘gesture of recognition’ (Federal Foreign Office, 2021). The German special envoy justified the amount with reference to Namibia’s limited ‘absorption capacity’ (Polenz, 2021). But what does this mean: that the purchase of land for restitution falls not inside of retributive justice? – As is argued further below, there would be a lot of ‘absorption capacity’ there.

Whichever argument applies: German generosity remains in comparison rather modest and limited. After the Tsunami disaster at the end of 2004, Germany raised 1.1 bn Euro through private donations and official humanitarian aid (Hibbeler, 2005). For 2021, Germany’s capital Berlin had budgeted expenditure of 10.5 bn Euro for personnel costs only (Zawatka-Gerlach, 2019). Construction costs for the new Berlin airport had by the time of its opening exceeded seven billion Euro (Sieben, 2020). Costs for the new underground railway station in Stuttgart are currently estimated at over nine billion Euro (Handelsblatt, 2022).

Another 50 million Euro ‘will be dedicated to the projects on reconciliation, remembrance, research and education’ over the same period. In contrast, the annual maintenance costs of the controversial Humboldt Forum (Kushner, 2020), which in the reconstructed Berlin castle displays artefacts looted during colonialism, amount to an estimated 60 million Euro alone. The Declaration stresses: ‘that these amounts … settle all financial aspects of the issues relating to the past’. Even leading members of the governing South West Africa People’s Organisation (SWAPO) expressed frustration. For the country’s Vice President Nangolo Mbumba the money was not enough (Deutsche Welle, 2021).

Reconciliation without reparation?

But at dispute is not only the laughable amount offered. A related, more profound and serious omission of the Declaration is sharply observed and criticised by the ECCHR statement, which diagnoses ‘a mere shift of an initial refusal to call it genocide to a refusal to apply the legal term ‘reparations” (Imani et al., 2021, p. 6). As summarised:

Given the joint declaration’s wording and lack of the term reparation therein, it avoids comprehensively acknowledging Germany’s legal responsibility for its colonial legacy. … the gesture of an apology will remain purely symbolic if it is not connected to other means of reparations. (p. 2)

It remained indeed a bone of contention between the two governments, that the term ‘reparations’ was omitted from the Declaration. The claim for reparations regarding colonial crimes is indeed not a far-fetched ‘wishful thinking’ but a matter of intense debate. This closely relates also to the discussions on intertemporal law, which raises the issue which law is applicable at which times. Intertemporality as a principle deals with a legal question based on the laws effective at the specific time. This includes the willingness to endorse the legality of laws considered as a justification of crimes. Germany herself applies rules of intertemporality ambiguously by dismissing recognition of certain Nazi-era laws or those of the German Democratic Republic, but willingly concealing other historical, including colonial criminal acts by recognising laws of the time through the intertemporal principles. As put in an earlier principled legal reflection:

There are therefore two elements, the first of which is that acts should be judged in the light of the law contemporary with their creation, and the second of which is that rights acquired in a valid manner according to the law contemporaneous with that creation may be lost if not maintained in accordance with the changes brought about by the development of international law.’ (Elias, 1980, p. 286)

It also raises the issue of legitimate agencies in specific historical (in this case colonial) contexts. This includes

a conceptual disconnect between the international system and its constitution through imperialism, colonialism and genocidal violence. Consequently, claims for redress of injustices based on substantive colonial relations and their legacies are deflected to a system of rule still infused with imperial law and legislation. (Weber & Weber, 2020, p. 107)

But as put aptly:

Colonial injustice is not a distant wrong that passes away with time. It is an everyday reality that reproduces itself. … The (after)life of colonialism remains present in our relations to spaces, objects, persons or history. (…) Contemporary forms of historical injustice, such as the holocaust, are deemed to be open to legal redress for individuals because some of the perpetrators or (direct and indirect) victims are still alive, while other types of historical injustice are excluded because perpetrators and (direct and indirect) victims have deceased. This agent related understanding neglects the structural nature of colonial injustice. It restricts redress to inter-personal relations and liability structures. It disregards the fact that colonial injustice results often not so much from the injustice done between particular persons, but rather from the structures of abuse or the institutional systems put in place at the time. (Stahn, 2020, pp. 823, 829)

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The genocide of 1904 to 1908 and the effects for the descendants of the main affected communities remain a challenge for efforts to come to terms with the past in the present and are rightly so a matter of intensive advocacy and debates, which pose fundamental challenges to a ‘Reconciliation Agreement’. Despite the acknowledgement of genocide (notably ‘from today’s perspective’) and some words of remorse, this agreement avoids the full consequences of bearing responsibility. It is in practice the continued doctrine of an apology without damage payment coined by the Foreign Minister Fischer some twenty years earlier. As a soft version of denialism, it offers no true reconciliation. The Joint Declaration simply reconfirms despite all rhetoric the nature of Germany’s engagement with independent Namibia over the issue of genocide as a refurbished version of asymmetric power relations. It is based on continued exclusion of those who should be the prime counterparts in efforts seeking restitutive justice. Instead, the two governments in total contempt of the people decide for them ‘to accept Germany’s apology’. In reality, German-Namibian bilateral interaction remains a story of aid recipients and the ‘White Saviour’ (cf., Brehl, 2022, pp. 67–69).

Henning Melber is with the University of Pretoria and University of the Free State, Bloemfontein, South Africa.