Apartheid reparations and the contestation of corporate power in Africa

By Patrick Bond and Khadija Sharife

The joint activist and juridical movement for reparations against corporations that profited from apartheid is finally making progress within the generally hostile US judicial system, using the ‘Alien Tort Claims Act’ and public pressure. By way of an update on the struggle, we first review the core evidence presented by plaintiffs representing tens of thousands of black South African victims of apartheid (Khulumani et al, 2002), consider the rebuttals by corporations (Morrisson and Foerster, 2008), and then turn to an update on the apartheid lawsuit and similar initiatives which demand that the ‘historical debt’ associated with oppression be repaid by those who profited, with interest.

Apartheid profits

To what extent did transnational corporations not only profit from but also sustain the apartheid regime? As one of white South Africa’s most notorious leaders, John Vorster, once proclaimed, ‘Each bank loan, each new investment is another brick in the wall of our continued existence’ (Cited in Khulumani et al, 2002, p.78). In 1980, his successor P.W. Botha appointed corporate representatives from Barclays, Standard Bank, Anglo American and other firms to serve on the Defence Advisory Board (DAB), a group that was instrumental in securing corporate support for apartheid policies. Botha told the House of Assembly,

We have obtained some of the top business leaders in South Africa to serve on the DAB in order to advise me from the inside, not only about the armaments industry, but also about the best methods to be applied within the Defence Force… I want to unite the business leaders of South Africa, representative as they are, behind the South African Defence Force. I think I have succeeded in doing so. (Cited in Khulumani et al, 2002, p.79)

his collaboration, integral to the existence of the apartheid state, was acknowledged by Barclays chairman Sir Frederic Seebohm:

There are one or two identifiable political groups in [South Africa] who are bent on destroying our society in order to impose their own minority ideologies on the rest of us… One of their objects is to bring about bloody revolution and they see in South Africa a chance to do just this. They believe fervently in a policy of destruction, which is the policy of an empty mind and those who have opted out of civilized society (cited in First et al, 1972).

Likewise, the post-apartheid Truth and Reconciliation Committee (TRC) found that

business was central to the economy that sustained the South African state during the apartheid years. Certain businesses, especially the mining industry were involved in helping to design and implement the apartheid policies. Other business benefited from cooperating with the security structures of the former state. Most businesses benefitted from operating in a racially structured context (Khulumani et al, 2002, p.156).

Banks including Barclays, Citicorp, Dresdner and Commerz provided the interface, acting as intermediaries between the licit and illicit, financing and sustaining corporations and the regime. According to an article published in The Nation in 1976, ‘South Africa is borrowing heavily to finance massive development projects and boost its defence spending. . . . It is hard to imagine where it would be right now without borrowed funds.’ In 1979 Citigroup was charged by the Chairperson of the UN Special Committee against Apartheid as supplying one fifth of the $5 billion inflow that bolstered apartheid in the months following the Soweto uprising. As late as 1989,Newsday headlined a report, ‘Citibank under Fire: Loan Terms seen as Aid to Pretoria’. The New York newspaper revealed that the bank rescheduled outstanding loans of $660 million on lenient terms. The same year, $8 billion in loans were refinanced, negotiated by Barclays, Dresdner, Deutsche and UBS (Khulumani et al, 2002, p.115).

Basil Hersov, former head of Barclays during the apartheid era, served on Botha’s DAB. Barclays was listed by the UN as providing one of nine major loans to the SA government and its corporations, totalling $478-million ‘in which Barclays played a leading role.’ In 1976, Barclays acquired one-eighth of all South African Defence Bonds, directly financing the armed forces. Bob Aldworth, Barclays Managing Director described it as ‘part of (Barclays) social responsibility to the country.’ In 1979, the company would underwrite and purchase shares in the state oil company, Sasol, the latter being set up to subvert sanctions through coal-to-oil conversions (Khulumani et al, 2002, p.113)

In sum, the corporate role in South African racial oppression was so substantial that even US president Ronald Reagan’s 1985 Executive Order implicitly acknowledged the support US firms gave the apartheid state. ‘The EO will put in place a set of measures designed and aimed against the machinery of apartheid. These steps include a ban on all computer exports to agencies involved in the enforcement of apartheid and to the security forces; a ban on loans to the South African Government…’ (Reagan 1985). But moving from such clear evidence to a formal finding of a ‘tort’ requiring reparations payments, as in the case of the Holocaust survivors who sued European corporations in the US courts, would not be easy.

The corporate defence

Post-apartheid political discourse has been characterised by a ‘talk left walk right’ strategy in which anti-corporate rhetoric offered by the African National Congress occasionally emerges within a prevailing corporate and neoliberal discourse (Bond 2006). This admixture of left and right political references has provided space for the South African government to disapprove of claims for historic justice against multinationals that worked closely with the apartheid system through progressive/nationalist references, invoking alleged ‘judicial imperialism’.

This basic problem was discovered by South Africans who utilised the US Alien Tort Claims Act (ATCA) in seeking compensation to be awarded against apartheid profits. The ATCA has recently been employed in some high-profile international cases. In 1997, Holocaust Litigation cases were filed under ATCA against Swiss banks, and ultimately settled out of court for $1.25 billion. Other ATCA cases settled out of court included victims of Burmese junta repression allegedly aided by Unocal, and Yahoo! which allegedly turned over private information to the Chinese state resulting in imprisonment of internet users. In 2002, South African activists including Dennis Brutus and Lungisile Ntsebeza, as well as the Khulumani Support Group for apartheid victims and Jubilee South Africa, used the ATCA to sue dozens of multinational corporations operating in South Africa during apartheid.[1]

Because the Bush Administration persuaded SA president Thabo Mbeki to oppose the plaintiffs in mid-2003 (cited in Bond, 2006), New York Southern Circuit Judge John Sprizzo ruled the case in favour of the corporate defendants in November 2004. Sprizzo argued that the ATCA was trumped by US foreign policy and South African domestic economic policy considerations. However, three years later, in October 2007, litigants 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’ (McOwen 2008). This too was appealed, and in May 2008, the conservative US Supreme Court was expected finally to kill the lawsuit, on behalf of the corporations. However, four of the justices discovered conflicts of interest in their own investment portfolios (they owned shares in the sued companies), and so the Supreme Court had no choice but to pass the case back to the New York courts, which in February 2009 held another hearing on a corporate motion to dismiss.

In the corporations’ defence, a ‘Memorandum of Law in Support of the Defendant’s Joint Motion to Dismiss’ filed by Daimler AG, Ford Motor Company, Barclays Bank, International Business Machines Corp., Fujitsu Ltd., and UBS (Morrisson and Foerster, 2008), offers two dozen rationalizations:

– the plaintiffs fail to ‘state a claim cognizable under the (tort statute) grant of jurisdiction’ violating the laws of nations or a treaty of the US;

–‘aiding and abetting international law violations are not actionable under the statute’;

– ‘allegations of aiding and abetting the apartheid government do not state a claim because doing business with apartheid South Africa did not violate international law’;

– ‘no defendant is alleged to have been involved in the promulgation or enforcement of the laws by which apartheid was administered (or) alleged to have committed torture, genocide or extrajudicial killing’;

– ‘complaints are composed almost exclusively of allegations concerning the sale of automotive vehicles and computers, and the loans of funds to parties in South Africa – conduct that is not and has never been in violation of international law’;

– international law ‘never imposed obligation on defendants to divest’;

– ‘none of the defendants’ home countries ever prohibited South African commerce altogether’;

– the UN Resolutions were limited to ‘intense debates over whether to prohibit commerce with South Africa’;

– the UN General Assembly is not a ‘law-making body’ but exists instead for purposes of ‘political discussion’ which is at best ‘merely advisory’;

– various resolutions, e.g. UN Security Council Res. 569 (1985), were not binding on member states or corporations and resolutions did not specifically single out the manufacturers of armaments and military vehicles, the technology corporations or the banks;

– ‘accessorial liability’ and ‘substantial assistance’ could not be proved, reiterating the words of Judge Katzmann who concluded that the plaintiffs must prove ‘practical assistance ….with the purpose’ and intent of facilitating the commission of primary violations;

– the tort statute is interpreted (and constrained) by ‘specificities comparable to 18th century paradigms related to piracy etc;

– the tort statute’s jurisdiction does not extend to the extraterritorial nature/conduct of multinationals in foreign nations, and that it was never intended to be used applied outside US borders;

– international law does not recognise corporate liability with jurisdiction extending to natural persons only, further highlighting that no international court has ever found a corporation guilty of ‘violating a norm of international law’;

– the tort statute does not contain a statute of limitations, hence the defendants borrow the ten year limitation of the Torture Victim’s Protection Act, to dismiss the claims;

– there is ‘no basis for tolling the limitations period… to overcome their failing to bring suit so many years after Mandela’s election…

– Khulumani’s claims do not relate back as initially, the suit was materially different (deliberate on the part of Khulumani’s counsel), who have only this year switched to ‘class action’;

– Khulumani lacks associational standing, for ‘the presence of the individual members – the real parties in interest – is required…importantly to avoid the risk of duplicative litigation’;

– ‘Khulumani (KSG) lacks standing to sue on its own behalf’, and as for claims that KSG incurred expenses via voluntary expenditure on victims’ behalf, the defendants maintain, ‘this type of derivative claim could only be based on equitable subrogation, which is not available to volunteers’;

– ‘Judgement in favour of plaintiffs would subvert the democratic decisions of those countries to permit, – and indeed, to encourage, regulated commerce in and with apartheid South Africa’; –

– ‘cases are non-justiciable under the political question doctrine….the adjudication of these cases before the Court would conflict with clearly articulated foreign policy and interfere with international diplomacy’;

– South Africa views objections as intrusion upon its sovereignty: ‘SA has at every turn urged the US courts not to adjudicate plaintiff’s claims’; ‘plaintiffs seek massive monetary penalties on behalf of the classes they purport to represent…SA considers it to be a direct challenge to the reparations programme carefully designed by the post-apartheid government to confront the legacy of apartheid’; and hence

– the successful prosecution of the case would disrupt the growth of the South African economy, undermining economic stability and deterring foreign direct investment.   Supplemental memorandums submitted by IBM, Daimler, Ford, General Motors, Fujitsu, and Barclays develop the arguments, claiming that parent corporations should not be held liable for the alleged acts and policies of subsidiaries, which indeed may have supported the apartheid regime. Yet, if 60 per cent of global trade occurs by way of multinational internal transfer between parent and subsidiary, and lacks transparency, it is unclear as to how parent corporations could mount a case contesting purported information transfer and hierarchical management within the parent-subsidiary relationships in question. Apartheid-eraSouth Africa was, after all, branded by the international community as a pariah state perpetrating horrific crimes against humanity. In this light, all banking relations on the part of defendants could be interpreted in the context of financing (state) terrorism (defined as systematic use of terror as a means of coercion).

In their supplemental memorandum, Daimler – investors and suppliers of Unimog vehicles, marketed in 1965 as a ‘military vehicle’ (Khulumani et al, 2002, p.132) distinguished from the civilian version by mountings for arms, bulletproof tires and other characteristics – stated that the Ntsebeza Plaintiff’s  allegations are insufficient as a matter of law, ‘as they are entirely conclusory, failing to make any effort to tie Daimler-Chrysler Corporation’s purported manufacture of vehicle to any particular harm suffered by any particular plaintiff’ (Daimler Brief, 2008). But the evidence paints a different picture. Khulumani et al note that in July 1988, Daimler Chrysler leader Joachim Jungbeck bragged to a shareholder meeting,

During a company visit, I was proudly shown aggregates of army vehicles, including huge numbers of axles from armoured vehicles. Storerooms contained large numbers of engines, axles and transmissions for Unimogs and armoured vehicles of the South African police and army. In between were parts for the armoured vehicle ‘Buffel’. The Buffel was used in the war against Angola and for the occupation and control of black urban settlements (Khulumani et al, 2002, p.130).

Daimler’s presence in South Africa was marked by a series of collaborations with the apartheid government. In the 1970s, ARMSCOR used the chassis of the Unimog to develop the vehicle that would be used by the army and police to repress the population. One year after the UN Security Council enacted a mandatory arms embargo, Mercedes Benz shipped 6000 Unimog to SA. Corporations directly collaborated with state-owned entities including well known entities such as SASOL and ESCOM. The state-owned Industrial Development Corporation as an e.g. owned 51% of the Atlantis Diesel Engines (ADE) factory; Daimler owned a 12.5% share. Daimler Chairman Jurgen Schrempp stated of the ADE, ‘The authorities established ADE for strategic reasons.’ ADE’s main client was the South African army. Daimler partly owned or maintained shares in several companies that helped maintain the apartheid system, including their 56% capital stock in Allgemeine Elektizitätsgesellschaft (AEG), whose facilities aided ‘the South African government in its internal security by monitoring the identity and movement of black population…’ (Khulumani et al, 2002, p.133).

Ultimately the corporations hoped that the decisive factor in their defence was the active collaboration of former South African Minister of Justice Penuell Maduna. The corporations’ Joint Memorandum (Morrisson and Foerster, 2008) drew sustenance from Maduna’s declaration opposing litigation, later resubmitted by his successor, Brigitte Mabandla: ‘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.’ The corporations also quoted Mbeki: ‘We are not defending the multinationals. What we are defending is the sovereign right of the people to decide their future… I can’t understand why any South African would want to be brought under such judicial imperialism.’

According to Khulumani lawyer Michael Hausfeld, ‘Maduna was instructed by the US government to oppose lawsuits brought in the US against multinational corporations which allegedly benefited from apartheid.’ After leaving Mbeki’s cabinet, Maduna went on to commercially represent the apartheid corporations as lawyer, alongside Democratic Alliance politician Peter Leon (brother of the party’s former leader Tony). Maduna claimed to oppose the reparations lawsuit to protect national sovereignty, yet his declaration deliberately accorded protection to the extraterritorial corporations that undermined the struggle for freedom during the apartheid era by knowingly financing and sustaining the regime, in direct collaboration with foreign governments. Maduna had taken up this cause in 2003 as a direct result of a letter requesting him, ironically, to invoke ‘SA sovereignty’, from US Secretary of State Colin Powell (Bond 2006).

In contrast, in August 2005, an Amicus brief filed by the TRC argued that the corporations listed in the Khulumani lawsuit never engaged with the TRC, nor did the multinationals ever apply for amnesty; that the lawsuits against multinationals on the part of private citizens in no way interfere with the policies and processes of the TRC, nor do they undermine or conflict with the SA Constitution, courts or government; and finally, that private corporations may be held legally and legitimately accountable for apartheid victims, as a matter of civil law. According to advocate Dumisa Ntsebeza, former TRC head of the TRC’s Investigation Unit, ‘The TRC failed as an institution to find the evidence that would show that the role of business was such that they were complicit in South African apartheid. That failure was due to lack of time, lack of resources and lack of full cooperation from big business’ (Duke 2002).

In spite of the post-Mbeki government’s failure to overturn its predecessor’s support for the apartheid corporations, the February 2009 New York court hearing led by Hausfeld seemed to open up a new trajectory. In late 2008, the plaintiffs had honed down their case to a smaller number of corporations. According to Hausfeld associate Molly McOwen (2008):

While the availability of the aiding and abetting theory is clear, the standard for establishing such liability remains undecided… We allege that the technology companies worked with the apartheid regime intensively, over a prolonged period of time, to develop computer systems that would run the racial passbook systems. The companies purposefully designed the systems so that they would maximize the efficiency and efficacy of the regime’s enforcement of the pass laws. The companies knew that these activities violated international law. Thus, the companies’ assistance was not only substantial, but it was provided with the knowledge that it was assisting international law violations and with the purpose of perpetuating apartheid (itself an international crime) and the violence necessary to the maintenance of apartheid.

In addition to the aiding and abetting theory of liability, Plaintiffs’ First Amended Complaint raises a joint criminal enterprise (‘JCE’) theory. Under the JCE theory, a person may be liable for a crime committed by some aspect of a criminal enterprise if the person acted in furtherance of the criminal enterprise, with knowledge of the nature of that enterprise and the intent to further the criminal purposes of that enterprise. It must be foreseeable that the crimes will be committed by other members of the enterprise. This theory has been relied on in several cases before the International Criminal Tribunal for the former Yugoslavia… Plaintiffs’ factual allegations satisfy this theory, as well. For instance, we allege that Defendant Barclays National Bank was an active participant on the South African Defense Advisory Board through the bank’s director, Basil Hersov. Through this collaboration, as well as Barclays’ continued financing of the apartheid regime, the bank intentionally furthered the South African security forces and their criminal purpose of maintaining and enforcing apartheid. Plaintiffs’ injuries were utterly foreseeable at the hands of the South African security forces, whose violent acts were condemned around the world. Thus, Barclays should be found liable under the ATCA under the JCE theory as well as the aiding and abetting theory…

With respect to both theories of liability—aiding and abetting and JCE—it is important to note that the First Amended Complaint focuses exclusively on the corporate defendants’ substantial assistance to the South African security forces. Plaintiffs are not suing defendants for their general business activities in South Africa during apartheid, or even for their business dealings with the South African government in general. Rather, Plaintiffs have identified the key companies that supplied armaments, military vehicles, computerized racial passbook systems, and financing to the security forces with full knowledge that these strategic military assets would facilitate the maintenance and enforcement of apartheid.

According to the plaintiff’s lawyers, the present New York Circuit Court judge appears most concerned about how banks should be brought in to the lawsuit. In the February 2009 hearing, Hausfeld pointed out that any banks that today provide financial services to terrorist organisations are subject to prosecution. The apartheid state is as obvious a case of a terrorist organization as any, and thus should also be subject to tort claims.

In their strategic retreat to limit the plaintiffs to nine not three dozen corporations (a retreat not fully popular with the Jubilee component of the struggle), Hausfeld and McOwen probably increased the likelihood of a formal trial by jury this year – if the appeal to dismiss is rejected by the New York Circuit Court, as is now anticipated in mid-2009 – and potentially a pathbreaking victory.  On the one hand, winning again in the Court of Appeals and Supreme Court is also possible if a slim majority upholds the claims, given that they are narrower than before. But on the other hand, this strategy diminishes the merits of the apartheid profits lawsuit for more general attacks on corporate malfeasance in Africa and elsewhere. (Another possibility, inbetween, is an out of court settlement, such as the German and Swiss firms paid Holocaust victims’ descendants.)

Khulumani describes their amended lawsuit as targeting those ‘companies that did profitable business by (knowingly) equipping the apartheid security agencies with the means of enforcing and sustaining apartheid.’ The Khulumani lawsuit ‘asks for compensation for injuries on behalf of individual victims who fall into four classes of victims. The decision regarding compensation would be based on standards established in international law’ (Jobson, 2009).

A common cause?

Those attacks on the record of malevolent firms and even colonial-era states are at a relatively high level of intensity at present. Other cases include claims by the Herero people against Germany for genocide carried out between 1904-08 (Sarkin 2008), and ATCA cases against firms which despoiled the Niger Delta. For example, the case Bowoto v. Chevron was heard in November 2008 in San Francisco, with Chevron acquitted by a district court in a jury trial. The case originated a decade earlier, when Nigerian armed forces worked closely with Chevron security, a period during which the Nigerian army killed two unarmed Ilaje community members engaged in a sit-in at the firm’s Parabe Platform. Others were permanently injured and indeed tortured by the military. In February, Chevron (whose record profits in 2008 amounted to $23.8 billion) rubbed salt in the Ilaje people’s wounds by seeking reimbursement of $485,000 in legal fees for the case, including $190,000 in photocopying charges (Paddock 2009). 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’ (Paddock, 2009). The case was lost again on appeal on March 4 in the District Court for the Northern District of California, but Voorhees plans another appeal, due to ‘insufficient evidence for the defence verdict, erroneous legal rulings, and prejudicial misconduct by Chevron’s lawyers.’

An impressive network has emerged to support the Ilaje. In addition to Voorhees’ firm and Justice for Nigeria Now, it included EarthRights International, the private law firms of Hadsell Stormer Keeny Richardson & Renick and Siegel & Yee, and Cindy Cohn and the Electronic Frontier Foundation, Robert Newman, Paul Hoffman, Richard Wiebe, Anthony DiCaprio, Michael Sorgen, Judith Chomsky and the Center for Constitutional Rights. Many of these organizations are also supportive of the Movement for the Survival of the Ogoni People, whose leader Ken Saro Wiwa and 8 other Ogoni activists were executed by the Abacha regime in November 1995. Shell was kicked out of Ogoniland in mid-2008. Wiwa’s son Ken is taking Shell to the New York courts for alleged ‘complicity for human rights abuses against the Ogoni people in Nigeria, including summary execution, crimes against humanity, torture, inhumane treatment, arbitrary arrest, wrongful death, assault and battery, and infliction of emotional distress’ (as Justice in Nigeria Now, 2008, puts it). In a case filed in 1996 but only going to court on April 27 2009, Wiwa is invoking not only ATCA but also the Torture Victim Protection Act and Racketeer Influenced and Corrupt Organizations Act. Crucial to these cases’ progress will be the kind of high-profile public campaigning associated with the apartheid reparations campaign.

There are other important legal strategies currently being pursued, including a so far unsuccessful ATCA case (on appeal) by the family of the late Palestine solidarity activist Rachel Corrie against Caterpillar, which supplied the Israeli military with the vehicle that killed Corrie. In Corrie v. Caterpillar, Inc. (2007), the judges ruled that ‘Allowing this action to proceed would necessarily require the judicial branch of our government to question the political branches’ decision to grant extensive military aid to Israel. It is difficult to see how we could impose liability on Caterpillar without at least implicitly deciding the propriety of the United States’ decision to pay for the bulldozers which allegedly killed the plaintiffs’ family members.’

More promisingly for ‘ecological reparations’ activists, a global warming lawsuit was settled out of court in February 2009 by Friends of the Earth, Greenpeace and the cities of Boulder in Colorado, Arcata in Santa Monica, and Oakland in California. Their targets were the US Export-Import Bank and Overseas Private Investment Corporation, which invested, loaned or insured $32 billion in fossil fuel projects from 1990-2003 with no regard to the US National Environmental Policy Act (NEPA). At present, it is only US cities which have formal standing to sue for damages from climate change under NEPA, in the wake of a 2005 federal ruling, but others – especially in the continent least responsible and most vulnerable to global warming, Africa – may have future recourse, perhaps under ATCA. The defendants agreed to important concessions in the settlement, rather than monetary damages; both will incorporate CO2 emissions into future planning (http://www.foe.org/climatelawsuit).

While the ecological debt doctrine continues to be built, there is ongoing interest in contestation of Illegitimate and Odious Debts associated with African dictatorships. In the wake of Ecuador’s January 2009 debt default, this appears a promising grassroots pressure discourse, since so many African countries have residual or historic debts associated with the financing of dictators by Western governments and banks. Given the inadequacy of the 2005 G7 finance ministers’ concessions (the Multilateral Debt Relief Initiative) just prior to the G8 meetings in Gleneagles, a movement began to promote a ‘Fair and Transparent Arbitration Process’ (FTAP) meant to promote cancellation – or if not, then repudiation – of African external debt. The group Afrodad (2009, pp.2-3) lists several parallel initiatives whose strategic orientation would be consolidated in a March 2009 Johannesburg conference:

i) The Norwegian Government’s (2005) declaration explicitly expresses the intention to support arbitration on illegitimate debts: ‘The Government will support the work to set up an international debt settlement court that will hear matters concerning illegitimate debt‘.
ii) The Helsinki Process on Globalisation and Democracy, created at the initiative of the Finnish Government in co-operation with the Tanzanian Government in 2002 also promoted novel and empowering solutions to the dilemmas of global governance.
iii) The Italian Parliament passed a law on debt relief in the summer of 2000, Art. 7 of which requests an examination of present debt management. Under the title International Regulations on Foreign Debt this article reads: The Government will propose, to the relevant international institutions, the starting of the necessary procedures to obtain a ruling from the International Court of Justice on the consistency between the international regulations governing developing countries’ foreign debt and the general framework of legal principles and human and people’s rights.
iv) During a Conference in Uruguay’s Parliament the Montevideo Declaration calling for FTAP was formulated, and signed by Latin American Parliamentarians.
v) The ACP-EU Joint Parliamentary Assembly demanded FTAP in 2000, believing ‘that consideration should be given to the creation of an International Debt Arbitration Panel to restructure or cancel debts where debt service has reached such a level as to prevent the country providing necessary basic social services .’
vi) The High-Level Regional Consultative Meeting on Financing for Development, Asia and Pacific Region (Jakarta, 2-5 August 2000, session 1) called for: ’There is a need for an international bankruptcy procedure. It should also be ensured that private debt does not become government debt’.
vii) At the African Union‘s Experts’ Preparatory Meeting in Dakar 2005, the President of the Republic of Senegal argued that any lasting solution to Africa’s debt crisis must first and foremost be based on an audit – a ‘radioscopy ‘ – to ‘make known the amount to be repaid’ , recognizing the principle that debt should be repaid. This is a clear call to tackle the problem of illegitimate debts and debts that would not exist in the case of debtors in the North where basic legal principles of debtor-creditor relations are respected.
viii) The Outcome document from the International Symposium on Illegitimate External Debt held in Oslo, Norway, 20-23 October 2008 called for Litigation/arbitration: ‘Specific contracts concerning debts exhibiting strong signs of illegitimacy should be considered for referral to arbitration or litigation, with a view to establishing relevant practical precedents.’
ix) Informal summary of the hearings with representatives of civil society and the business sector on financing for development (New York, 18 June 2008) also called for impartial and transparent processes towards resolving debt disputes, where parties were given equal treatment and judgments were based on impartial evaluation of cases.
x) AFRODAD conducted national and regional FTA campaign launches in 2008, in Nigeria, Democratic Republic of Congo and Kenya, where participants demanded justice through an impartial and transparent process towards resolving debt disputes.

These are mainly elite processes, and suffer from the broader cul-de-sac of global governance paralysis, in which since the Basel Convention on Trade in Toxics (1992) and Montreal Protocol on ChloroFluoroCarbons (1996), there have been no world problems tackled effectively (consider the failed Doha Agenda of the World Trade Organisation, United Nations reform, Bretton Woods democratization, the Kyoto Protocol). Nevertheless, Afrodad (2009, p.3) concludes, ‘We are deeply convinced that despite its own weaknesses as a global institution, the UN remains the most suitable place to establish an arbitration court because of its legitimacy across nations.

In contrast, there are a myriad of other more militant, grassroots-driven strategies presently at work (Bond 2009), exemplified by historic AIDS medicines victories against Big Pharma and the US and South African governments by the South African Treatment Action Campaign (TAC) and their international supporters (ACT UP! in the US, Oxfam and Medicines sans Frontiers). These included two crushing 2001 defeats for TAC’s opponents in the courts, including South Africa’s Constitutional Court. Other anti-corporate victories have been claimed by civil society members of the Africa Water Network, especially Accra’s Campaign Against Privatisation and Johannesburg’s Anti-Privatisation Forum and Coalition Against Water Privatisation. In the wake of years of militant protest, the latter groups won an April 2008 High Court victory against the public agency Johannesburg Water (managed from 2001-06 by the giant firm Suez of Paris), resulting in a judgment doubling the universal Free Basic Water allocation to 50 liters per person per day and banning prepayment meters, in a case the state appealed and which is likely to go to the Constitutional Court as well.

It is becoming clear, in such cases, that it is only in the mix of radical social pressure – ‘tree-shaking’ – and the power of the courtrooms – ‘jam-making’ – that the threat to corporations which exploit Africa can be maximized

Bibliographic Note:   Afrodad (2009), ‘International Conference on Fair and Transparent Arbitration Mechanism on Illegitimate and Odious Debts’, Harare, 30-31 March.   Bond, P. (2006), Talk Left Walk Right, Pietermaritzburg, UKZN Press. ___ (2009), ‘African Resistance to Global Finance, Free Trade and Corporate Profit-Taking’, forthcoming in R.Westra (Ed), Confronting Global Neoliberalism: Third World Resistance and Development Strategies, Atlanta, Clarity Press. _____ (2006) North Versus South: Expect More Global Apartheid, Monthly Review Zine, http://mrzine.monthlyreview.org/bond070106.html, last accessed 16 March 2009   Corrie v. Caterpillar, Inc. (2007), ‘Judgment’, 503 F.3d 974 (9th Circuit).   Daimler Brief (2008), Supplemental Memorandum of Law in Support of Defendant’s Joint Motion to Dismiss (08/12)   Duke, L. (2002), ‘The Price of Apartheid’,Washington Post, 3 December.   First, R., Steele, J. and Gurney, C., (1972), The South African Connection, TempleSmith.  Jobson, M. (2009) ‘Interview with Patrick Bond and  Khadija Sharife,’ 17 March.   Justice in Nigeria Now (2008), ‘Nigerian Activist Ken Saro Wiwa Hanged Thirteen Years Ago this Week’, http://justiceinnigerianow.org/tag/alien-tort-statute.   Khulumani et al (2002), ‘Plaintiff Complaint’, New York, 11 November.   Maduna, P. (2003), ‘Declaration by Justice Penuell Maduna’www.info.gov.za/view/DownloadFileAction?id=70180, last accessed 7 March 2009.   McOwen, M. (2008), ‘Legal Theory of the Amended Khulumani Complaint’, Washington, 3 November.   Morrisson and Foerster (2008), ‘Memorandum of Law in Support of Defendants Joint Motion to Dismiss’, New York, 8 December.   Paddock, R. (2009), ‘Chevron seeks reimbursement from villagers who sued over 1998 shooting’, Los Angeles Times, 8 February.   Reagan, R. (1985), ‘Comments at White House Conference’, http://www.reagan.utexas.edu/archives/speeches/1985/90985a.htm, accessed 7 March 2009.

Sarkin, J. (2008), Colonial Genocide and Reparations Claims in the 21st Century, New York, Praeger.

[1] The suits were led by ‘Khulumani Support Group and 90 others’; ‘Digawamaje et al’; and ‘Ntsebeza et al’, subsequently consolidated in a 2007 countersuit, ‘American Isuzu Motors, et al, v Ntsebeza, et al’

Fuente: Tandfonline

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