Ghosts of the past alive in the present

Apartheid reparations remain one of the unfinished legacies of the Truth and Reconciliation Commission. Most of the suggestions and proposals made by the reparations committee of the TRC about payments were never implemented.

But, for the modest sum of R30 000 paid to approximately 20 000 individuals designated as “victims” by the TRC, most victims had to be content with the rhetoric of reconciliation and nation-building.

The rhetoric of reconciliation and “letting bygones be bygones” has not removed apartheid victims’ need for financial reparations. For many victims the need is becoming more acute. I applaud the initiative taken by the Khulumani Support Group to claim reparation from multinational companies by resorting to courts in the United States and to the Alien Tort Claims Act.

The Khulumani Group and other groups of plaintiffs are both ambitious and astute. Until very recently the South African government has been unsympathetic to this initiative and continued to state that court cases of this kind go against the spirit of “national reconciliation”. I have always felt that the vague and ill-defined term “reconciliation” is subject to abuse. The term does not embody all that is good, especially not if manipulated in this way.

By not paying substantial financial compensation to the victims, the South African government is not only ignoring the recommendations of the TRC but also violating international law. Moreover, the government is showing its ignorance of an important movement towards the recognition of victims and reparation claims in the international community. And the victims are left out in the cold.

Kader Asmal and others who oppose the Khulumani plaintiffs’ claim are wrong if they focus on the perception that the claim reflects negatively on the South African ­government and reconciliation process. The claim is not aimed against the government. It is aimed primarily against companies who profited from doing business with the National Party government.

By resorting to the US process, the plaintiffs are utilising a powerful human rights tool—the Alien Tort Claims Act, which is increasingly being used by victims worldwide in suits against large corporations.

The plaintiffs show an awareness of modern developments in international human rights law. And the argument that apartheid reparations should primarily be a domestic matter shows insensitivity to the fact that crimes against humanity (such as apartheid was) are of universal concern. The grave nature of the crimes in question trumps all other concerns.

In June last year I attended an international conference in Prague on the restitution of Holocaust-era assets. In light of the embarrassing and human-rights-insensitive ­decisions of our foreign affairs department, I was not surprised by the South African government’s absence from the conference.

Delegations from 48 countries were present (including micro-states such as Montenegro and non-European states such as Australia). The conference resulted in the drafting of the Terezin Declaration. In the words of Stuart Eizenstat, who headed the US delegation, this declaration is the most detailed and comprehensive instrument of its kind to date.

But it seems the South African government did not consider this an important enough event to attend.

Reparations have become a ­question of more than domestic or political concern—it is now a matter of international law and international human rights law. It was pointed out in Prague that all nations were implicated in, and affected by, the theft and plunder of the Holocaust.

Since the Holocaust involved the “greatest robbery in history”, Holocaust restitution is of ongoing legal and moral concern.

Reparation movements all over the world have drawn from the lessons of Wiedergutmachung (the German term for Holocaust reparations). Apartheid reparation is similarly of ongoing legal and moral concern.

In a statement in Parliament in 2002 then-president Thabo Mbeki called the Khulumani initiative “completely unacceptable” and implied that it is unpatriotic for the Khulumani plaintiffs to resort to US courts. It was but one instance in which the Mbeki government swam against the human rights current.

Reparations claims do not fade with the passing of time. This is illustrated vividly by continued calls for reparations by the descendants of the victims of slavery in the US. Our government ignores such claims at its peril.

Mia Swart is an associate professor in Wits University’s law school



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