Drawing from the Namibian experience, Mutoy Mubiala, Professor at the University of Kinshasa, highlights the importance of the role of civil society in mobilising for reparations for colonial crimes.

The issue of reparations for the Namibian genocide perpetrated by the German coloniser between 1904 and 1908 has been at the heart of civil society mobilisation for several decades. While legal actions in both Namibia and the United States of America have not resulted in judgements in favour of the victims of the genocide, recent civil society mobilisation to reject the Reconciliation Agreement signed between the German and Namibian governments in May 2021 has prompted the latter to denounce the Agreement and to call for its renegotiation, particularly on reparations due from Germany. This development illustrates the importance of including civil society in historical research processes on the colonial past of Western countries and/or in transitional justice processes in African countries dealing with, among other things, colonial crimes. The experience of Namibian civil society in this case constitutes a good practice, which opens up encouraging perspectives for civil society organisations mobilised for reparations for colonial crimes and slavery, in a context of regionalisation of this issue by the African Union.

The Namibian genocide of 1904-1908

Between 1904 and 1908, German troops, under the command of General Lothar von Trotha, bloodily suppressed the revolt of the Namibian people against the abuses they were suffering at the hands of settlers and companies operating in Namibia. More than 65,000 Herero and Nama, out of a population estimated at the time at 85,000, perished during these massacres. This was the first genocide of the 20th century, as described by the Special Rapporteur of the UN Sub-Commission on the Promotion and Protection of Human Rights, Mr. B. Whitaker, in his “Study on the question of the prevention and punishment of genocide”.

In recent years, Namibian civil society organisations have taken action for recognition of the genocide and reparations. On the judicial front, they have initiated several legal actions, both in Namibia and abroad (in the United States of America, in particular). However, in both contexts, the doctrine of inter-temporal law, which considers that massacres perpetrated in the colonial context at a time when they were not criminalised by international law are not international crimes in the sense of international criminal law, has been a great obstacle to the fair treatment of the legal actions brought in this context. The failure of the judicial processes was compounded by the exclusion of civil society from the German and Namibian governments’ negotiations on the Namibian genocide.

The exclusion of Namibian civil society from negotiations between the German and Namibian governments and the subsequent rejection of their ‘Reconciliation Agreement’ by the Namibian people

The German and Namibian governments have been engaged in negotiations on the Namibian genocide since 2015. Attempts by civil society to be involved in this process were unsuccessful. These opaque negotiations culminated in the signing of the Reconciliation Agreement between the Federal Republic of Germany and Namibia in May 2021. The Agreement provides, inter alia, for the acknowledgement by Germany of its responsibility for the perpetration of the Namibian genocide of 1904-1908 and the payment of financial and material reparations valued at just over one billion euros, over a period of thirty years.

The Agreement was immediately rejected by Namibian civil society and community leaders of the affected populations (Herero, Nama, Damara and San) for two main reasons. Firstly, the Agreement regards these as ‘development aid’ from Germany to Namibia and not as the legal consequence of a wrongful act under international law. Secondly, the amount allocated to Namibia is marginal compared to the pension funds paid to victims and descendants of Holocaust victims, who have received more than 75 billion euros in pension funds from Germany, according to a Namibian community leader.

Large-scale demonstrations were organised by Namibian civil society to reject the Agreement by the people. These protests created major pressure on the Namibian government to denounce the German-Namibian Agreement in November 2021. Since then, the two governments have begun renegotiating the financial aspects of the agreement, while members of civil society are working to revive the case in the courts.

Lessons learned from the Namibian experience and prospects in Africa

In recent years, the international community has witnessed research initiatives on the colonial past of several Western countries, especially in Africa. These historical research processes are undertaken, sometimes unilaterally, for example the Belgian parliament’s initiative for historical research on Belgium’s colonial past in Congo, Rwanda and Burundi. It is worth noting, however, the involvement of African historians and other researchers in the work of the group of experts set up by the Special Committee on the Colonial Past of the Belgian House of Representatives. These Africans have certainly contributed to the quality of the report drawn up by the group of experts, which contrasts with the weakness of the final recommendations of the Special Committee.

Other initiatives are made in cooperation between the ex-colonial power and the formerly colonised countries, for example the case of France with Algeria and Cameroon. Admittedly, these are not transitional justice processes as such, which require the active participation of the victims of the crimes dealt with. However, since the reparations sought are in favour of the latter, it is appropriate that they participate in these historical research processes in one way or another.

Civil society organisations are in the best position to help these victim communities regain their rights because of their experience. This requirement is even stronger in the case of diplomatic negotiations between the former colonial power and the former colony. This is evidenced by the consequences of the exclusion of Namibian civil society from the negotiations between the German and Namibian governments, which led to the signing of the ‘Reconciliation Agreement’ between the two countries in May 2021, which was immediately rejected in Namibia by the affected communities. Due to the lack of popular legitimacy, this ‘top-down reconciliation’ between the two countries failed.

The rejection of the reparations agreed upon in the German-Namibian Reconciliation Agreement of May 2021 by the communities of the descendants of Namibian genocide victims, thanks to continued pressure from civil society, demonstrates the important ‘facilitating’ role that civil society can play in the processes of historical research on the colonial past of Western countries and/or in the transitional justice processes of African countries incorporating the treatment of colonial crimes. Civil society is better placed than any other entity to act on behalf of the victims of international crimes and their descendants.

Hence the importance of the research project involving several African academics (including the author of this article), currently being carried out by a Brussels-based non-governmental organisation, African Futures Lab (AfaLab), aimed at developing an “African Agenda for Reparations for Colonial Crimes and Slavery”. This project aims to build the capacity of African civil society in the area of reparations claims for colonial crimes and slavery. Once its capacity to mobilise in this area is strengthened, African civil society is likely to make an effective contribution to the African Union’s new programme of “building a united front to promote the cause of justice and reparations for Africans”.

Author

Mutoy Mubiala is Professor of Human Rights at the University of Kinshasa (DRC) and consultant. He is a former United Nations official (retired).

Transitional Justice & Historical Redress

This article is part of the special series Transitional Justice & Historical Series, a project born of a joint collaboration between the Leuven Institute of Criminology and Avocats Sans Frontières.