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The historical setting

Colonialism came late to Namibia. The country’s rugged coastline, aptly called the Skeleton Coast, is littered with shipwrecks. Stretching inland for some distance from this uninviting shoreline is the world’s oldest desert, the sublime Namib, which gives the country its name. On the eastern side of Namibia lies the vast expanse of the Kalahari Desert, which extends deep into neighbouring Botswana. These two deserts cover much of Namibia’s territory, making it the most arid country in sub-Saharan Africa. This geography may have discouraged colonial powers until the late nineteenth century. But the discovery of diamonds and other minerals changed that.

Imperial Germany was the first to stake a colonial claim by proclaiming a protectorate around the port of Angra Pequena on the southern coast in 1884 at the behest of a trader, Lüderitz. The harbour settlement was later called Lüderitzbucht after him. The German colonial area was expanded and the boundaries of German South West Africa became settled after treaties with Portugal in 1886 and Great Britain in 1890.

The land policy of the German colonial period was directed not only at depriving the indigenous population of land for colonial settlement, but also – according to leading historian André du Pisani2 – at destroying the political autonomous structures of the indigenous people. This was perpetrated by removing people from land and then dumping them on reserves of crown land as an effective way of exercising political and economic control over them. In this way, groups were fragmented and their leadership undermined. This approach was essentially followed and became intensified by the successive South African governments that replaced German colonial rule in 1915.

German policies of land deprivation and other abuses led to uprisings from 1904 to 1907. These were brutally put down, culminating in the infamous proclamation of extermination of the Herero by Governor Von Trotha (the ‘Vernichtungsbefehl’) and the genocide that followed. War crimes were also perpetrated against the Nama and Damara communities, which had revolted against German rule in the uprisings of 1904–1907.

Although German colonial rule is primarily remembered for the genocide and war crimes perpetrated against Namibia’s people, the legal system imposed on the territory was also oppressive and operated against the indigenous people. German colonial rule did not, however, interfere with land tenure north of the ‘red line’. Owamboland was instead to provide a pool of cheap labour. A migrant labour system was introduced which would, subject to refinements and adaptations, remain enforced until the 1970s. A pass law regime was rigidly enforced upon black inhabitants over the age of fourteen from 1907. The Germans passed a law that prevented blacks from owning title to property, or even horses or cattle, without the governor’s consent. According to Pakenham,3 those found guilty of stock theft under German law could be (and frequently were) sentenced to death after trials by all-white settler juries.

This was the nature of the legal system inherited by the South African government when it invaded the territory in 1915 following the outbreak of the First World War, marking the end of German rule. The territory was governed under military rule by South Africa until 1920.

The League of Nations was established after the end of the First World War and, under the Treaty of Versailles, the territory became a class C mandate entrusted to South Africa as mandatory power as a ‘sacred trust of civilisation’ with ‘full powers of administration and legislation’ over the territory ‘in the best interests of the indigenous population’. The South African parliament passed legislation to formalise the mandate in 1919 and military rule formally came to an end with the appointment of an administrator in 1920. German law ceased to apply and Roman-Dutch common law as applied in South Africa became the legal system in the territory, together with statutes enacted for or applied to Namibia.

From the outset of the mandate, South Africa’s government proceeded to rule the territory as a fifth province of South Africa. The influx of Afrikaners from the Boer republics during German times increased after South Africa took control. Large tracts of land were allocated to these white settlers for farming.

Native reserves continued and were expanded in size after South African rule, especially after the National Party won power in 1948 and implemented its far more rigid racial segregation policy of apartheid in Namibia as well. The native reserves were controlled through selected tribal leaders who acted under the control and supervision of white officials of the South African government. The reserves under German rule were pockets of mostly small pieces of land for the Nama, Damara and Herero people. This system became more formalised and consolidated under South African rule after the Odendaal Commission, which, in 1964 recommended the imposition of its homeland policy of ethnically separated homelands, implemented in 1968. Apartheid by then affected every facet of life in Namibia.

The highly regulated and resented migrant labour system, the lack of access to land (after the initial deprivation) except in reserves without tenure, and massively inferior spending on public services on racial and ethnic lines meant that the profound level of inequality inherited from German colonial times became more entrenched and was further compounded by apartheid policies. The huge inequality in education and other public spending continued right up to independence in 1990, despite the installation of two interim governments with limited powers during the 1980s.

After the end of World War II, the United Nations organisation (UN) was established in 1945 and the League of Nations was formally dissolved the following year. The UN Charter did not, however, deal directly with former mandate territories, although the expectation was that these would form part of the system of trusteeship envisaged in the Charter. South Africa resisted trusteeship, however, and preferred incorporation of the territory into South Africa, a move supported by the all-white legislative assembly established for the territory. Thus began years of dispute over the territory between the UN and South Africa.

The National Party government furthered a policy of incorporation by providing for representation in the South African parliament to white inhabitants of the territory in 1949 and became more and more defiant in its dealings with the UN and the international community after 1948.

As decolonisation elsewhere in Africa and Asia led to new members of the UN adopting a more militant position against South Africa, there was a rise in black political movements and resistance within Namibia. The OPO (Ovamboland People’s Organisation) was set up in 1958 (as the Ovamboland People’s Congress), primarily directing its focus upon the detested system of contract labour although also espousing wider nationalist and economic objectives. The South West African National Union (Swanu) was formed in 1959 and was initially closely aligned with the OPO in opposition to the apartheid regime’s policies – as was Chief Kutako’s Herero Chiefs’ Council. These three organisations headed a defiance campaign against the forced removal of black residents from what was known as the Old Location in Windhoek to Katutura. At least 11 people were killed in the clash between protestors and the South African police on 10 and 11 December 1959. The South West Africa People’s Organisation (Swapo) was formed in 1959 from the OPO into a national organisation. Both Swapo and Swanu directed petitions to the UN.

Two UN members, Liberia and Ethiopia, brought a case against South Africa to the International Court of Justice (ICJ), demanding South Africa’s accountability to the UN for its administration of the territory and also declaring that, by imposing apartheid upon the territory, South Africa was violating the mandate. The ICJ decided in 1962 by a close margin that the two states, the only two sub-Saharan members of the League of Nations, had standing to raise the dispute. The merits of the dispute later returned to the ICJ in 1966. The court instead revisited the jurisdiction issue and decided by a majority of one to reject the standing of the two states. It did not address the merits in a ruling that shocked international lawyers with its narrow and formalistic approach, as the court had dealt with that issue previously and avoided the merits.

Following the controversial 1966 ruling, Swapo decided to take up arms against South Africa’s occupation, commencing a guerrilla war on 26 August 1966 at Ongulumbashe in Owambo. Most of the initial group of guerrillas were captured and tried under the new Terrorism Act of 1967, which was backdated to prosecute them. The defendants included Andimba Toivo ya Toivo. They were all sentenced to lengthy terms of imprisonment on Robben Island.

In the wake of the ICJ ruling in 1966, the General Assembly, in July of that year, revoked South Africa’s mandate and declared the territory to be the direct responsibility of the UN. In 1968 it adopted ‘Namibia’ as the name for the territory, hence the use of that name in this book for the period after 1968. The UN Security Council in 1969 recognised the General Assembly’s right to administer Namibia and requested South Africa to end its administration immediately. South Africa contested the validity of the resolution and refused to vacate Namibia. The Security Council referred the dispute back to the ICJ in 1970. The ICJ returned an advisory opinion in 1971, ruling that the mandate had been lawfully terminated, that South Africa’s continued occupation was illegal, and that South Africa was under an obligation to withdraw from the territory. Swapo welcomed the ruling and called for immediate independence for Namibia.

In the years that followed, international pressure mounted upon South Africa over its continued occupation of Namibia. There was also growing resistance to its rule from Namibians, both inside the country and through the guerrilla war, which escalated after the collapse of the Portuguese empire in April 1974.

Within the country, workers mostly from Owamboland downed tools in 1971 in a crippling strike over the inhuman South West African Native Labour Association (SWANLA) migrant labour system. The massive mobilisation of workers compelled the authorities to abandon SWANLA. Not only did the workforce become more politicised as a result of the strike – the youth, who began to leave the country in droves to join Swapo to take up arms or to study, given the poor prospects for them in Namibia under the system of Bantu education, also became politicised.

Under diplomatic and internal pressure, the South African government embarked upon a policy of détente with countries to its north by promising action upon Namibia and Zimbabwe, then Rhodesia under Smith’s Unilateral Declaration of Independence (UDI) regime. There was even a commitment made by the then South African Prime Minister Vorster in 1976 that ‘the peoples of South West Africa be allowed to decide their own future without being hampered or disturbed’. Pretoria convened a constitutional initiative in 1974, through its National Party leaders in Namibia. Dirk Mudge, then a prominent member of the National Party, announced invitations to separate ethnic groups with the emphasis on group rights and representation and excluding political parties. This became known as the Turnhalle conference, which was based upon ethnic fragmentation with white control of the economy. After months of deliberations, the Turnhalle conference reached agreement in 1976 upon an interim government from the beginning of 1977 for a two-year period while a constitution for an independent Namibia was to be developed, with independence envisaged for 31 December 1978. The prospect of sharing power – even on an ethnically fragmented basis – was too much for many within the all-white National Party, which split soon afterwards. A breakaway faction under the more enlightened Mudge formed the Republican Party.

While these South Africa-sponsored efforts were taking place, the UN Security Council passed Resolution 385 in 1976, which called for ‘free elections under the supervision and control of the UN’. South Africa rejected the resolution. The five western members of the Security Council at the time formed a contact group and began a process of mediation with the South African government to break the international deadlock. They made considerable progress, with South Africa announcing the appointment of an Administrator-General for the territory in 1977 as a precursor to independence and an end to white representation in the South African parliament from the territory. Further diplomatic talks resulted in a compromise proposal, which would mean that South Africa would administer the elections subject to UN supervision and control. This resulted in the adoption of Resolution 435 by the Security Council in 1978. Other features were that the process of elections to independence should be completed within twelve months. The resolution also required the repeal of repressive and discriminatory laws, the release of political prisoners, the phased withdrawal of South African forces from Namibia, and the demobilisation of ethnic and citizen forces, which fell under the South African Defence Force (SADF).

The South African government agreed to the terms of the compromise embodied in Resolution 435 in April 1978. Within days, however, it mounted a massive military raid on Swapo bases in Angola. Within months, it had reneged on its undertakings and, on 20 September 1978, decided instead to go ahead with a constituent assembly election pursuant to the Turnhalle initiative in defiance of the international community. That election proceeded in December 1978 amid international condemnation; the Democratic Turnhalle Alliance (DTA), a coalition of ethnically based parties led by Mudge, won 41 of the 50 seats. Swapo boycotted the election, as did moderate political parties or groupings that were not based on ethnic allegiance. The South African government installed a council of ministers and an assembly in May 1979. That assembly approved an ethnically based governmental structure the following year, called AG 8 of 1980, providing for eleven separate ethnic legislative and executive authorities for each ‘population group’. The South Africa-sponsored internal initiative was roundly rejected internationally. A dispute between the Administrator-General and the council of ministers about public holidays led to the former dissolving the assembly and resuming direct rule.

There were sporadic diplomatic efforts aimed at persuading South Africa to implement Resolution 435. These invariably stalled, with the South African government linking Cuban troop withdrawals from Angola to the implementation of Resolution 435. By doing so, South Africa was latching onto a precondition set by the Reagan Administration, which had raised the issue of linkage as from 1981.

Not all diplomatic efforts came to naught. In 1982, the western contact group was able to secure the agreement of South Africa and Namibian political parties to a set of principles that would govern the constitution adopted by the Constituent Assembly elected pursuant to Resolution 435. As international diplomacy otherwise failed to make further headway, South Africa embarked on another internal initiative in 1983 by convening the Multi-Party Conference which, in June 1985, led to the installation of another interim government involving those who had participated in this initiative. The DTA was the dominant group, and Swapo was again excluded.

During these developments in the 1980s, there was an escalation in the guerrilla war in northern Namibia, which was under effective martial law. During 1988, renewed diplomatic efforts made progress in the wake of bruising battles in Angola for all protagonists. At the end of that year, an accord was reached, providing for the implementation of Resolution 435 on 1 April 1989.