Apartheid cases and reparation

By: James N. Kariuki
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[ Posted On: 2007-11-19 ]

In the course of next year, the United States Supreme Court will make a crucial ruling. It will determine whether or not to hear an appeal against a New York court's recent ruling to reinstate a lawsuit to hold large multinational corporations (MNCs) liable for their racist actions in apartheid South Africa. The defendants include the world's giants: Barclays, Citicorp, Mercedes-Benz, IBM, Shell and General Motors, all Western-based.

The case hinges on alleged violations of internationally recognised human rights in South Africa during apartheid. Specifically, charges include collaboration with apartheid security forces, provision of military equipment and complicity in forced human removals. Without the support provided by these companies, the plaintiffs claim, apartheid would have collapsed long before 1994.

The accusers are relying on an 18th Century Alien Tort Claims Act that empowers US courts to apply human rights standards over MNCs for their activities worldwide.

Even those MNCs that facilitated human rights violations more recently in Rwanda, Burma, Bosnia and Cambodia are not off the hook. Unocal, a US-MNC, has been forced to pay millions of dollars in settlement of suits for military atrocities in Myanmar. Why should South Africa be an exception?

The same case was thrown out of court in 2003 largely because both the US and South Africa governments were vehemently against it. South Africa insisted that US courts should not have jurisdiction over its affairs. Yet, if found guilty, only the US is in a position to effectively enforce judgments against US multinationals.

The Bush administration claims that such lawsuits would strain Washington-Pretoria relations. That attitude is understandable, meant as it is to shield American companies from being forced to pay out millions of dollars.

But Pretoria's hostility towards the lawsuits is puzzling. The reasoning based on sovereignty and non-intervention in domestic affairs is simply unconvincing. Would Israel restrain its citizens from seeking international restitution against a wrong done to them because of Israel's sovereignty?

In the apartheid case, the accused are all either American or European-based multinationals! It would seem strange indeed if it was dubbed an affront to Uganda's sovereignty if Kenya sought to punish its companies in Uganda for violating human rights of Ugandans in Uganda.

Another claim is that the lawsuits circumvent the Truth and Reconciliation Commission (TRC) yet, the chairman of the TRC, Archbishop Desmond Tutu, insists that the commission never addressed corporate abuses. He further rejects the argument that class action lawsuits in SA would trigger capital flight.

Last week in Parliament, President Thabo Mbeki offered a muted acknowledgement that the plaintiffs in the apartheid cases have a right to seek compensation in court. He did not overtly endorse that course of action, but he did not express the bitter opposition that typified the official outcry of 2003.

But Mbeki should consider disassociating himself further from the Bush Administration's claim that US-SA relations would be strained by the cases.

Why are the apartheid victim cases so sensitive? Precisely because they capture the frustrations of reparation claims in Global Africa.

In 1992 African Heads of State established the Group of Eminent Persons to set the stage for a reparation campaigns for Black people worldwide. Africa's entry into the reparations' crusade has made the case larger. Potential plaintiff is now Global Africa at large. The respondent, on the other hand, is the entire Western world.

Politically, enlargement is a "good thing in that it gives reparations a global dimension. However, political magnification is also a "bad thing from litigation standpoint. According to legal experts, the African-Americans" demands for reparations have been stifled by the fact that their holocaust claim is too vast, too daunting, too overwhelming.

According to these legal minds, reparations quest for Black people needs a winning precedent. It merits the support of the entire Global Africa, and all people of goodwill.

Article Source: http://www.afroarticles.com/article-dashboard

About The Author: James N. Kariuki - is head of the African Diaspora Unit at the Africa Institute of South Africa in Pretoria.

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