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THE movement for reparations against transnational corporations that
profited from apartheid is finally making progress within the generally
hostile US judicial system, using the Alien Tort Claims Act (ATCA) and
public pressure.
Recall the complicated history, beginning in 1997, when Holocaust
victims' descendants filed cases under the act against Swiss banks and
German companies, and ultimately settled out of court for $1.25 billion
(R12.5bn at the current rate of conversion).
Other ATCA cases settled out of court included opponents of the Myanmar
junta who sued the collaborating oil firm Unocol, and Chinese democracy
activists who punished Yahoo! for turning over private information to
Beijing security officials.
In 2002, South Africans including Professor Dennis Brutus of the
University of KwaZulu-Natal's Centre for Civil Society, lawyer Lungisile
Ntsebeza, the Khulumani Support Group for apartheid victims and Jubilee
South Africa, used the act to sue dozens of multinational corporations
operating in South Africa during apartheid.
Because the Bush administration persuaded then president Thabo Mbeki to
oppose the plaintiffs in mid-2003, New York Southern Circuit Judge John
Sprizzo ruled the case in favour of the corporate defendants in
November, 2004. Sprizzo ignored amicus pleas by Archbishop Desmond Tutu
and economist Joe Stiglitz.
However, three years later, in October, 2007, the activists won an
appeal in the Second Circuit Court, which found that in this Circuit, a
plaintiff may plead a theory of aiding and abetting liability (for
international crimes such as apartheid) under the ATCA.
The corporations had bet on the active collaboration of former minister
of justice Penuell Maduna. Their joint memorandum filed last year drew
sustenance from Maduna's declaration opposing litigation, and was later
resubmitted by his successor, Brigitte Mabandla (subsequently shifted to
the Ministry of Public Enterprises). It stated: Like her predecessor,
the current minister maintains that the responsibility to address the
country's apartheid past… lies with the South African government and not
foreign courts.
Oppose
After leaving Mbeki's cabinet, Maduna became the apartheid corporations'
main Johannesburg representative, working with Peter Leon. He claimed to
oppose the reparations lawsuit to protect national sovereignty and what
Mbeki termed judicial imperialism.
Yet Maduna had taken up this cause only in 2003 as a direct result of a
letter from then US secretary of state Colin Powell requesting him,
ironically, to invoke SA sovereignty.
Despite active Khulumani lobbying, the post-Mbeki government has failed
to overturn official state support for the same corporations they had
demanded leave South Africa 20 years earlier, reflecting the innate
conservatism of President Kgalema Motlanthe and ruling party leader
Jacob Zuma.
Nevertheless, the hearing last month - in front of Judge Shira
Schiendlin, not Sprizzo, who died in December - seemed to open up a new
trajectory.
Late last year, Khulumani lawyer Michael Hausfeld honed down the case
from nearly three dozen firms that profited most from apartheid, to nine
that are charged with having served the country's security forces in
implementing repression.
The strategy increases the likelihood of a formal trial by jury this
year, if the corporations' appeal to dismiss is rejected by Schiendlin,
as is now anticipated.
Leading pro-business commentator Simon Barber wrote in Business Day last
week that Schiendlin explored parallels between the makers of Zyklon B,
the gas used in Nazi death camps, and the suppliers of computers and
vehicles to agencies that enforced apartheid.
He hopes that instead, Schiendlin adopts the 2002 International Criminal
Court's Rome Statute definition of aiding and abetting such crimes, a
more stringent standard. Ultimately, Barber believes, the case is less
and less about winning reparations for people who feel they were
shortchanged by the Truth and Reconciliation Commission.
It is about putting the fear of God into corporations that do business
in dodgy places.
Critiques of malevolent firms and even colonial-era states are
intensifying. Other cases include claims by the Herero people against
Germany for genocide carried out in what is now Namibia from 1904-08,
and Alien Tort Claims Act cases against oil firms which have despoiled
the Niger Delta.
The case Bowoto versus Chevron was heard in San Francisco last November,
with Chevron acquitted by a district court in a jury trial. The case
originated a decade earlier, when Nigerian armed forces working with
Chevron security killed two unarmed Ilaje community members engaged in a
sit-in at the firm's Parabe Platform. Others were permanently injured
and tortured by the military.
In February, Chevron - whose record profits last year amounted to
$23.8bn - rubbed salt in the Ilaje people's wounds by seeking
reimbursement of $485 000 in legal fees for the case.
Justice in Nigeria Now is the Ilaje people's representative in the US,
and their lawyer, Bert Voorhees, remarked of Chevron: They are trying
to bring this cost bill as a warning to any other folks who might seek
justice.
The case was lost again on appeal on March 4 in a California district
court, but Voorhees plans another appeal.
Abuses
Another case involves the Movement for the Survival of the Ogoni People,
whose leader, Ken Saro Wiwa, and eight other Ogoni activists were
executed by the Abacha regime in November, 1995. Shell was kicked out of
Ogoniland in mid-2008, and Wiwa's son, Ken, is taking Shell to the New
York courts for complicity for human rights abuses: summary execution,
crimes against humanity, torture, inhumane treatment, arbitrary arrest,
wrongful death, assault and battery, and infliction of emotional distress.
Ecological reparations activists were cheered when a global warming
lawsuit was settled out of court last month by Friends of the Earth,
Greenpeace and the cities of Boulder, in Colorado, and Arcata, Santa
Monica, and Oakland, in California. Their targets were the US
Export-Import Bank and Overseas Private Investment Corporation, which
invested, lent or insured $32bn in fossil fuel projects from 1990-2003
with no regard for the US National Environmental Policy Act.
The defendants agreed to important concessions in the settlement, rather
than monetary damages; both will incorporate carbon dioxide emissions
into future planning. Eskom, Sasol, Transnet, mining houses and
smelters, take note!
While the ecological debt doctrine continues to be built, there is
interest in the contestation of Illegitimate and Odious Debts associated
with African dictatorships, as a conference sponsored by the African
Debt and Development Network in Johannesburg will consider next week.
In the wake of Ecuador's debt default in January, this appears to be a
promising grass-roots pressure discourse, since so many African
countries have residual or historic debts associated with the financing
of dictators by Western governments and banks, including Zimbabwe.
Civil society activists are wary of courts, which often reproduce social
and corporate power. However, the Treatment Action Campaign's successful
fight against Mbeki in the Constitutional Court and the Coalition
Against Water Privatisation's defeat of Joburg Water last April
generated new confidence.
What they must do, however, is continue the mix of social pressure -
tree-shaking - and the power of the courtrooms - jam-making - to
ratchet up the threat to corporations guilty of extreme exploitation.
# Patrick Bond is the director of the UKZN Centre for Civil Society
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