The Reparations in German Colonial Namibia Series | Genocide Remembrance Day

In Episode 2, Patrick Kauta, lead counsel in the matter, is joined by Esther Shigwedha to explore the significance and controversy of May 28th.

The discussion unpacks:

• The controversy over May 28 as Genocide Remembrance Day, a date marking the closure of German colonial concentration camps in 1908, which the OvaHerero and Nama communities reject as a day of remembrance.
• Why the affected communities regard the camp closures not as liberation but as the beginning of forced relocation, forced labour, and continued dispossession, with Paramount Chief Mutjinde Katjiua describing May 28 as "the day the OvaHerero people were reduced to slavery."
• The dates the communities themselves hold sacred: October 2, 1904, when General Lothar von Trotha issued his extermination order against the OvaHerero; and April 12, linked to the 1893 massacre at Hornkranz and the beginning of genocidal violence against the Nama.

At its core, this episode asks a question that resonates well beyond Namibia: who gets to decide how genocide is remembered, and what happens when the descendants of victims are excluded from that decision?

Building on the foundational context of Episode 1, this instalment provides listeners with a deeper understanding of why the politics of remembrance remain inseparable from the pursuit of restorative justice.

Listen to Episode 2 now and continue following the series for deeper insights into one of the most significant reparations cases in Africa.

Click here to listen 

Transcript

Esther Shigwedha: Welcome to the CDH Conversations podcast. This is the second episode in our podcast series on the reparations in the German Colonial Namibia case that's currently serving before the Supreme Court of Namibia on appeal. On this podcast, you have myself, Esther Shigwedha, and the Managing Partner for CDH Namibia, Patrick Kauta, who is also lead counsel on this case.

The first episode in this series introduced this extremely important topic in light of not only its cultural significance, but in light of the ongoing high-end Supreme Court litigation surrounding obtaining justice for the OvaHerero and Nama people in a court of their choosing. In episode one, we discussed Namibia's early colonial history and Germany's influence from the 1880s and gave a brief background on the 1904 to 1908 genocides, including the extermination orders issued against the OvaHerero people.

We briefly discussed the social and economic consequences of land dispossession, mass killings, and forced labor that ensued before and after the extermination orders. We ultimately discussed how the 2006 parliamentary motion called for acknowledgement, reparations, and direct participation of affected communities and how it became the cornerstone of the present litigation.

We introduced the community's legal challenge, which seeks to set aside the joint declaration between Germany and Namibia. It also seeks to compel Germany to acknowledge the genocides consistent with the 2006 motion. This introductory episode provided a foundational understanding of the issues before the court and outlined why the case represents a critical step in the pursuit of restorative justice.

Today, we will be discussing the significance and controversy surrounding Genocide Remembrance Day under the theme, Who Gets to Choose the Genocide Remembrance Day? The Namibian government chose May 28th as Genocide Remembrance Day, but the two communities whose ancestors were actually killed and their livelihood impacted, the OvaHerero and the Nama rejected that date.

Now, Patrick, this raises the following question: Why would the victim's descendants object to a day meant to honor their ancestors? 

Patrick Kauta: May 28th, 1908 is the date the German colonial authorities formally ordered the closure of the concentration camps in then German Southwest Africa, today, Namibia. The analogy used by the communities themselves is helpful here.

When the German colonial government closed its own camps on May 28th, it did not liberate anyone. The Nama Traditional Leaders Association has pointed out that what followed was forced relocation to native reserves where survivors were subjected to forced labor and sexual exploitation. Paramount Chief Mutjinde Katjiua of the OvaHerero Traditional Authority put it starkly.

28th May was the day the OvaHerero people were reduced to slavery since there were no repatriation plans and the land had already been expropriated 

Esther Shigwedha: So in essence, what you are saying is that the key point is that closing the camps on the 28th of May did not end the suffering of the people. It merely changed its form.

Now, the Nama communities preferred April 12th, which they associate with the beginning of genocidal violence against their people linked to the 1893 massacre at Hornkranz, which date would the OvaHerero prefer? 

Patrick Kauta: The OvaHerero regard October 2, 1904 as their central date of remembrance because it was on that day that General Lothar von Trotha issued his extermination order declaring that every OvaHerero man, woman or child, armed or unarmed, will be shot and killed.

So that is really the central date for the proclamation of the extermination order and the start of the mass killings and taking of property that ensued. 

Esther Shigwedha: So in both cases, the communities want the date to mark the moment of genocidal intent, the moment the colonial state declared its purpose to destroy the people rather than an administrative act of camp closure that brought no relief.

Patrick Kauta: Yes, that is correct, Esther, and dear listeners, because even the OvaHerero Genocide Foundation's Chairperson, Nandiuasora Mazeingo, stated that the government was imposing 28 May on his community, thereby boycotting their dates, history, and own lived experiences and memories. He added that any other creation sponsored by an entity or entities other than ourselves is not for us, and we therefore do not and will not have any part in it.

Esther Shigwedha: So as the representative of that community, he's in essence saying that the decision to choose that date mirrors the community's central complaint about the 2021 Joint Declaration between Germany and Namibia. The decisions about the genocide are being made without consulting the people by governments claiming to act on their behalf.

Now, this ultimately brings us back to the litigation that we discussed in episode one, where we were seeking to join Germany to the proceedings. In fact, a full High Court bench of three judges was constituted for this purpose. Could you just tell our listeners what was the eventual outcome of the joinder application?

Patrick Kauta: Unfortunately, the High Court dismissed the joinder application. The bench ruled that Germany could not be joined as a party to the proceedings This was a significant setback because without Germany at the table, the court is essentially seeking to adjudicate a matter about a bilateral agreement without one of the two states that negotiated it, and more importantly, without the state that committed the genocide.

It reinforces the very pattern the communities have been fighting against. Decisions about them without them, and now even litigation about them without the key party being compelled to participate. That is precisely why we are now pursuing an appeal because we believe the High Court erred in its reasoning.

Esther Shigwedha: Now, with respect to the appeal that's pending, in your views, where do we go from here? 

Patrick Kauta: Uh, well, we are appealing the High Court's, uh, decision in the-- on the joinder application, and the grounds of appeal center on the very issue we have been discussing today: exclusion. The community's core argument is that Germany cannot be absent from proceedings that concern a bilateral agreement to which it is a party, and which purports to settle claims arising from a genocide it committed.
If the court is being asked to set aside the Joint Declaration, then we think it's only fair and just that both signatories must be before it. Furthermore, the appeal will emphasize that meaningful relief is impossible without Germany's participation. You cannot compel a party to acknowledge genocide and negotiate reparations if that party is not joined to the proceedings.

It is the same pattern the communities face with the Remembrance Day issue. Decisions are being made about them without them, and now in the litigation itself, the very state responsible for the genocide is being permitted to remain absent. The appeal seeks to correct that. Moreover, now that we have appealed to the matter on behalf of the communities, Amnesty International have instructed Namibian lawyers to intervene in the proceedings.

And we think that goes to show that we are correct in appealing the decision because they seek to raise issues from the papers that I have read that Germany must participate or should participate because they cannot be excluded from a decision that has an effect on the German state who committed the very genocide the court has to determine ultimately.

Esther Shigwedha: So in essence, this is the very beginning of a very long journey to restorative justice. 

Patrick Kauta: Yes, I think what the communities have is really time. These genocides were committed more than a hundred years ago, and time is really on their side. And that is why we have not asked the Supreme Court to expedite the hearing of the appeal because we want in the fullness of time to know that the communities will get, as they say, the wheels of justice turn slow, but they turn nevertheless.
So I think it's a good thing. We can wait in the fullness of time and just seeing that this issue will, in the fullness of time be resolved. We recently read that the parliamentary delegation visited Germany to renegotiate the joint declaration. That's testimony to our case. And again, the communities have been excluded.

We just read that in the newspapers, and we see the composition of the delegation of parliament that went to Berlin to renegotiate the declaration. And that speaks to the fact that the communities are correct to appeal and await the Supreme Court decision before the matter will be litigated in the High Court in the near future.

Esther Shigwedha: In addition to what Patrick is saying, for our listeners, the date dispute is not really about a calendar date. It is about whether the descendants of victims of genocide will have agency in their own history being told, remembered, and ultimately remedied, which is the same question at the heart of the reparations litigation.

Thank you to our listeners for tuning in to our reparations podcast. Stay tuned for more episodes.