Ovaherero Paramount Chief, Vekuii Rukoro (VR), this week fielded questions from the Windhoek Observer News Editor, Nyasha Francis Nyaungwa (NFN).
In the interview, Rukoro spoke about what he termed the sham negotiations between the German and Namibian governments and his resolve to seek justice for the genocide suffered by the Ovaherero and Nama communities at the hands of imperial Germany. He also aired his views about the “twisted and naïve political doctrine” of One Namibia, One Nation.
Below is an excerpt of that interview:
NFN: How did you receive last week’s ruling by U.S. District Judge Laura Taylor Swain, and where to from here?
VR: Although the Judge’s opinion was disappointing, the detailed factual allegations outlining Germany’s flagrant and purposeful violation of established and recognised international law, its commission of wholesale genocide, its illegal taking of property, and its unlawful and disgusting commercial use of our human remains went unchallenged.
The only issue that the Court decided was whether it has jurisdiction over Germany under two exceptions of the Foreign Sovereign Immunities Act. The fact that the Court erroneously concluded that those exceptions do not apply, does not detract, whatsoever, from the strength of the claims that the Ovaherero and Nama peoples have against Germany for restitution for the losses we have suffered.
NFN: You have indicated that you are going to appeal the ruling by Judge Swain. How confident are you that you will get a favourable ruling this time around? What will you do differently to get the ruling that you want?
VR: We strongly believe that there is a sound legal basis for the appeal, and we have identified for the Court of Appeals at least 17 separate areas of legal error in the Court’s opinion that provide a basis for a reversal on appeal and reinstatement of the Amended Complaint in the District Court.
There is nothing to be done “differently;” we just have to explain to the three appellate judges reviewing the decision that legal errors contained in the Court’s opinion, require reversal.
NFN: When can we expect you to file the appeal?
VR: A Notice of Appeal was filed on Monday, March 11th, and an Amended Notice of Appeal was filed on March 12th after the District Court issued a Judgment confirming the Opinion & Order.
NFN: In the event that your appeal is unsuccessful, what other options will you have to seek justice?
VR: We anticipate that the appeal will be granted and that the Court’s flawed opinion will be reversed. In the unlikely event that it is not, we will be filing for en banc review to have our lawful and legitimate jurisdictional basis reviewed by the entire Court of Appeals for the Second Circuit. If we fail there, we will file a Petition for Certiorari, requesting review by the Supreme Court of the United States.
And if we fail there, then we move to our next forum and allow Germany to hear from us there. The Court’s decision had nothing to do with the merits of our lawful claims, from which Germany cannot hide. We will never rest until justice is achieved, and Germany will never make peace with the Ovaherero and Nama people until it extends the arm of brotherhood and reaches a just settlement that we accept.
NFN: There are ongoing negotiations between the Namibian and German governments that are about to conclude. Do you still maintain that you and the OTA will not be a part of this, and that you don’t recognise the negotiations?
VR: We have been wrongfully excluded from participating in these negotiations. The Ovaherero and Nama people are the only parties that can speak on their own behalf with regard to these matters that concern their legal rights. Germany will achieve nothing without us. It will be like one hand clapping. Without us, there can never be a comprehensive or final settlement, and there can certainly be no final justice or accounting.
For the record, we, as leaders of our respective communities, were never officially invited to become substantive participants in the inter-governmental discussions; on the contrary, we were purposefully excluded and that was the direct cause of the current litigation.
NFN: Your critics have called you are tribalist pursuing a “narrow Herero” agenda at the expense of the principle of One Namibia, One Nation. How do you respond to such characterisation? And what has been your agenda since you took over as PC?
VR: The UN Convention on the Prevention and Punishment of the Crime of Genocide, in its definition of what genocide means and its reference to the “intent to destroy in whole or in part …”, used the term “ethnic … group, as such.” In that sense, in my opinion, the crime of genocide is already ethnicized, and when Gen. von Trotha came up with his “Extermination Orders” with their specificity on the Ovaherero and Namas, there can be no so-called ‘narrow Herero’ agenda.
The reference of an ethnic group, as such, in the definition does/did not contemplate the distortive notion of “One Namibia, One Nation.” Both did not even exist as anything at the time of the “Ovaherero and Nama Genocide”, terminologies currently also being used by the sham negotiations of the two governments. The Extermination Orders did not have as intent to destroy any other ethnic groups beyond the Ovaherero and Namas.
To the extent that individual members of “other ethnic groups” suffered collateral damage by being caught in the cross-fire, they or their leaders should direct their claims for collateral damage to the German government and not seek to pollute or tribalise our justified struggle against an erstwhile Imperialist power.
NFN: A United States court recently reinstated a lawsuit brought by a group of Holocaust survivors and their families against the government of Hungary and its national railroad. The class action suit demands restitution for the role Hungary played in the murder of 500,000 Jews and the seizure of their property during World War II. Do you see any similarities between that case and your case that was thrown out last week?
VR: We are encouraged that other federal courts have recognised jurisdiction over the claims of genocide victims from other parts of the world. We believe that the ultimate resolution will be more uniform federal court case law that recognises that, in meritorious cases such as ours, where there is a sufficient connection between the genocide and unlawful takings and the U.S., foreign states cannot evade their responsibilities under international law, which the courts of the United States respect and enforce.
If Germany recognised our rightful place at the negotiating table, then the filing of court claims would not be necessary.
NFN: How did you finance the court case in New York and how will your finance the appeal?
VR: Some of the out-of-pocket costs and disbursements for the litigation and the appeal are being paid for by not-for-profit and charitable contributions raised by the Association of the Ovaherero Genocide in the USA, Inc., one of the plaintiffs in the action, or they are being advanced by the plaintiffs’ attorneys on behalf of the plaintiffs.
No legal fees have been paid, although the attorneys are entitled to receive contingency legal fees from the settlement proceeds funded by Germany that we anticipate will result from the successful prosecution of the case.
Kindly note: No Namibian taxpayers’ money has been or will be used to litigate this matter as falsely alleged by some ignorant individual German and Oshiwambo speaking Namibians – seemingly quislings and apologetics of the German government!
NFN: In the court case that was thrown out last week, was there any ‘victory’ that you gained?
VR: We believe that the Judge’s decision will prove to be no more than a temporary setback, and the outpouring of renewed support for the just cause of the Herero and Nama people in Namibia, Botswana, South Africa, Germany, the United States and elsewhere since the decision was announced, has actually reinvigorated our communities and we have redoubled our effort to work tirelessly towards settlement that provides restorative justice.
Further, the Court could not have issued a more difficult decision for Germany to defend on appeal. The decision is fundamentally flawed in its legal analysis, and it is fundamentally unfair in its treatment of the dispositive new evidence that we presented in October – which, incidentally, proves beyond doubt the court’s jurisdiction as per the requirements of US law.
NFN: In the event that you get the justice that you are seeking, how do you plan on distributing the reparation spoils to avoid conflict amongst Namibians?
VR: We are confident that a just and equitable distribution can and will be agreed upon as part of the settlement negotiations with all relevant stakeholders. This is not rocket science!
NFN: Rwanda genocide survivor and genocide expert, Honore Gatera, recently cautioned Namibians against identifying themselves with their tribes, saying this might lead to tribal wars or genocide. What do you make of his statement?
VR: If we follow Mr. Gatera’s argument to its logical conclusion, then why not burn our passports and divest ourselves of all national identity so as to prevent all war and conflict?
The fear of so-called “tribalism” is an absolute ruse - one can be a proud Namibian and a proud Herero at the same time. Insofar as Gatera believes one should be cautious about “identifying” with one’s tribe, one’s tradition, and one’s ethnicity, that sort of advice is, first, a usurpation of an individual’s right to identify however he or she wants, and, second, a frightening echo of the “homogenization” principle pursued by Germany when they came to colonize us.
Germany wanted us to be as homogenous as possible. Some people here want to do the same under the guise of “One Namibia, One Nation!” It is no crime to oppose that twisted and naïve political doctrine!
NFN: Is there anything you would like to add?
VR: Germany’s genocide against the Ovaherero and Nama people was its clear and explicit state policy, and one that failed. We are still alive. The German people will exist together with the Ovaherero and Nama people on this earth presumptively for eternity.
So what we are dealing with here is not just a question of 1904 or 2019. This is not the end, but marks only one chapter - and we hope a new chapter - in the relationship between the German people and the Ovaherero and Nama people who are united together in this cause. The German government and the German people must decide what they want their relationship with us to look like.