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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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