Efforts to obtain restorative justice have encountered significant legal obstacles. In Rukuro v Federal Republic of Germany, the OvaHerero and Nama communities sought damages for the unlawful seizure of property between 1885 and 1909. Germany invoked the Foreign States Immunities Act, arguing that it was immune from prosecution because its actions did not violate international law as understood at that time. Germany relied on the doctrine of intertemporal law, which holds that actions must be judged by the legal standards in force when they occurred, not by contemporary norms. Article 28 of the Vienna Convention on the Law of Treaties, 1969 codified the principle of intertemporal law. In turn, the International Court of Justice affirmed the application of the doctrine of intertemporal law in 1975.

The US Supreme Court, in Bolivarian Republic of Venezuela v Helmerich & Payne International Drilling Co.137 S. Ct 1312, 1317, 197 L.Ed2d 663 (2017), reinforced the legal principle that a sovereign’s regulation of its own nationals’ property is generally immune from suit. The court in Rukuro found it lacked jurisdiction, as the OvaHerero and Nama were subjects of the German Reich, and the expropriation of their property without compensation was considered lawful under its laws at the time.

Joint declaration

Negotiations between the Namibian and German Governments led to a joint declaration titled “United in Remembrance of Our Colonial Past, United in Our Will to Reconcile, United in Our Vision of the Future” (Joint Declaration). Clause 10 of the Joint Declaration acknowledges that the atrocities committed during the colonial war would, from today’s perspective, be called genocide. The Joint Declaration references the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, 1948, which recognises that genocide has inflicted great losses on humanity throughout history.

The Joint Declaration has sparked debate over its consistency with Article 63(2)(i) of the Constitution of the Republic of Nambia, which states that:

“The National Assembly shall further have the power and function, subject to this Constitution:

(i) to remain vigilant and vigorous for the purposes of ensuring that the scourges of apartheid, tribalism and colonialism do not again manifest themselves in any form in a free and independent Namibia and to protect and assist disadvantaged citizens of Namibia who have historically been the victims of these pathologies …”

The OvaHerero and Nama communities have challenged the Joint Declaration in the High Court of Namibia, invoking the territorial tort exception. This exception allows courts to hear cases of human rights violations committed in the territory of Namibia by a foreign state, even when acting in a sovereign capacity.

The term “genocide,” coined by Raphael Lemkin in 1944, was later codified in international law through the United Nations Convention on Genocide.

The High Court has been asked to decide on several critical issues, including whether:

• the Joint Declaration is consistent with Articles 1, 5, 32, 45, 59, 63, and 144 of the Constitution;
• the Joint Declaration violates the 2006 House Motion on Genocide; and
• the extermination order of 2 October 1904 by General Von Trotha constituted genocide and, if so, whether reparations should be paid to the OvaHerero and Nama people or development aid to Namibia.

The struggle for justice for the OvaHerero and Nama genocide victims highlights the tension between historical legal doctrines and contemporary human rights standards. The outcome of the current legal challenge will determine whether Namibia’s constitutional protections and international law can provide meaningful remedies for colonial-era atrocities, or whether reconciliation efforts will fall short of true accountability.