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Claiming a moral debt may not require borders Patrick Bond asks if reparations for apartheid profits can be won in United States courts
Today, the fascinating case of $400 billion (R3 trillion) in claims by black South Africans against multinational corporations once again comes to Judge John Sprizzo's New York Southern District Court.
At the scene will be former Robben Islander and honorary UKZN professor Dennis Brutus, a leading plaintiff, but just one among many thousands of compatriots now rebelling against their government's disapproval of this Alien Tort Claims Act lawsuit.
Only in the past two decades has the law become widely known. More than 100 cases were filed in US courts, beginning with a Paraguayan torture victim.
Encouraged by Burmese villagers fighting the US oil firm Unocal, a case which in 2003 withstood challenge by the Bush administration, activists like Brutus, Cape Town academic Lungisile Ntsebeza, the Khulumani Support Group and Jubilee SA used the Act to sue dozens of multinational corporations operating in SA during apartheid.
The South African government was asked by the Bush administration to oppose the cases, and in part because Pretoria complied, Judge Sprizzo initially decided the case on behalf of corporate defendants in late 2004. He reasoned that the Act conflicted with US foreign policy and South African domestic economic policy.
But last October, litigants won an appeal on the grounds that Sprizzo's logic was faulty. In May, the US Supreme Court was expected to finally kill the lawsuit on behalf of the corporations, but four of the justices discovered conflicts of interest in their own investment portfolios, as they owned shares in the target firms. The case went back to Sprizzo, in what the plaintiffs' Cape Town-based lawyer, Charles Abrahams, argued was a massive victory for the international human rights movement as a whole.
According to Nicole Fritz, director of the Southern African Litigation Centre in Johannesburg: Companies that were not perpetrators of human rights violations but were complicit in such violations through their dealings with oppressive governments are now potentially liable in law for their actions.
Objective Disincentivising future profit-taking from dictatorships such as Burma or Zimbabwe is a central objective.
Last month, just as Robert Mugabe's Zanu-PF paramilitaries committed sufficient murder and torture to ensure his re-election, thanks in part to President Thabo Mbeki's perpetual connivance, AngloPlats announced a $400 million (R3 billion) investment in lucrative Zimbabwean platinum mines.
Abrahams argues: The substantive basis of the suit is that foreign multinational corporations aided and abetted the apartheid government by providing arms and ammunition, military technology, transportation and fuel with which the government and its armed forces were able to commit the most heinous crimes against the majority of the people of South Africa.
Corporations being sued include the Reinmetall Group, for providing arms and ammunition to the apartheid government; British Petroleum (BP), Shell, Chevron Texaco, Exxon Mobil, Fluor Corporation and Total Fina-Elf, for providing fuel to the armed forces; Ford, Daimler-Chrysler and General Motors, for providing transport to the armed forces; and Fujitsu and IBM for providing the government with much needed military technology.
Banks financing apartheid included Barclays, Citibank, Commerzbank, Credit Suisse, Deutsche, Dresdner, J P Morgan Chase and UBS.
As a leading exiled foreign representative of the African National Congress before 1994, Mbeki supported the demand that multinational corporations disinvest from SA.
But in 2001, at the UN World Conference Against Racism in Durban, he opposed a clause that the US should take responsibility and pay reparations for the trans-atlantic slave trade, which was supported by Nigeria and other African states.
In April 2003, Mbeki announced that it was completely unacceptable that matters that are central to the future of our country should be adjudicated in foreign courts.
Public enterprises minister Alec Erwin insisted that Pretoria was opposed to, and contemptuous of the litigation. Any findings against apartheid-tainted companies would not be honoured within SA, he blustered.
In July 2003, then-justice minister Penuell Maduna told the US courts that the litigation could have a destabilising effect on the SA economy.
But as a friend of the court on behalf of the claimants (alongside Archbishop Emeritus Desmond Tutu), Nobel laureate Joseph Stiglitz replied that such analysis had no basis, because those who helped support that system, and who contributed to human rights abuses should be held accountable.
Maduna's letter to the US court requested that the lawsuits be dismissed, in deference to the sovereign rights of foreign countries to legislate, and adjudicate domestic issues without outside interference.
But in August 2003, at the opening plenary of a major Reparations Conference, Jubilee SA's Berend Schuitema reported that Maduna made an extraordinary confession: The reason why he had made the objection was that he was asked for an opinion on the lawsuit by Colin Powell. He gave Powell his written response, whereupon Powell said that he should lodge this submission to the judge of the New York Court. Howls from the floor. Jubilee SA chairman M P Giyose pointed out the bankruptcy of the sovereignty argument.
Conflict To be sure, conflict between plaintiffs makes it harder to win the hearts and minds of the broader public. The first set of cases was filed by a discredited New York lawyer who was active in a previous Alien Tort Claims Act lawsuit that generated $8 billion (R61.7 billion) in Holocaust-related out-of-court settlements. But that lawyer soon fell out with Ntsebeza.
Between the Khulumani Support Group and Jubilee, tensions arose over claims to ownership of the case and over direction of strategy. And between Jubilee's former Johannesburg staff, on the one hand, and on the other, board members and several provincial chapters, a dispute erupted that temporarily paralysed the organisation.
Still, Brutus believes the plaintiffs can leapfrog Mbeki to appeal to a much richer strand of African nationalism than the appeal to sovereignty.
The Organisation of African Unity made a case for reparations in 1993 in the Abuja Proclamation against slavery, colonialism, and neo-colonialism. That damage is not a thing of the past, but is painfully manifest in the damaged lives of contemporary Africans from Harlem to Harare, in the damaged economies of the black world from Guinea to Guyana, from Somalia to Surinam.
A moral debt is owed to the African peoples, the Abuja Proclamation declares, requiring full monetary payment and debt cancellation.
If the activists lose, in the event that Sprizzo develops a more coherent defence of apartheid profits, the challenge for civil society will not only be to turn up the street heat. Perhaps SA needs its own Alien Tort Claims Act to hold corporations responsible for damage.
And a new government in 2009 will perhaps embrace the activists' reparations demands, so as to remind us of African economic liberation, instead of Mbeki's legacy: crony capitalism, capital flight, corporate tax cuts, corrupt arms deals, cheap electricity to influence-peddling minerals firms, and other forms of class apartheid. www.themercury.co.za
Patrick Bond directs the Centre for Civil Society at the UKZN.
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