The floor has been reopened.
The past two weeks’ furore over FW de Klerk’s denial and hasty withdrawal of his statement that “the system of apartheid is not a crime against humanity”, as well as the inquest into activist Neil Aggett’s murder in prison, have been a sharp reminder that not one of the democratically elected administrations has prosecuted anyone for the crime of apartheid.
And while the inquest into the violent death of Aggett and the murder case of fellow activist Ahmed Timol are a step forward, there are two other groups of apartheid criminals that remain seemingly untouchable — multinational banks and corporations.
Even after almost 20 years of civil society making several good attempts to hold banks and companies accountable, it seems the immediate post-apartheid legacy of not condemning impunity remains intact.
Beginning with the first legal action in 2002, known as the “apartheid litigation”, the issue has gone through a repeated cycle of expiry and resurrection — in the courts, public opinion and the media.
The apartheid litigation lawsuit, filed by the Khulumani Support Group in a United States district court and representing victims of human rights abuses under apartheid, sued 20 companies, including Daimler, IBM, Ford, ExxonMobil and JP Morgan. After several dismissals and subsequent appeals, the US courts finally dismissed the case in 2014.
These seemingly fruitless undertakings have left many wondering if any system actually exists that will bring these companies to justice, and who is being protected and why.
At this pivotal time it is worth going back to the most recent attempt at holding apartheid banks to account, which is still in progress.
In 2018, two South African organisations, Open Secrets and the Centre for Applied Legal Studies (Cals), tried to bring Belgian bank Kredietbank, now KBC, and its Luxembourg sister bank Kredietbank Luxembourg, now Quintet Private Bank, to justice for financially uplifting the apartheid regime.
The issue at hand is that Open Secrets obtained damning documentation from the South African and Belgian archives, which show that Kredietbank and Kredietbank Luxembourg were instrumental in facilitating covert payments by the apartheid government for them to make sanctions-busting international arms purchases and loans.
In a book written by Open Secrets’ director, Hennie van Vuuren, titled Apartheid Guns and Money, he writes: “A 1974 [Quintet] annual report for example, details major loans to South African state-owned corporations, including Eskom, Iscor and the government itself, totalling $624-million in the period 1967-74.”
In 1984 the United Nations Centre Against Apartheid listed Kredietbank as one of the top four lenders to the apartheid regime. The archives also show that Kredietbank and Kredietbank Luxembourg helped establish front companies in Liberia and Panama to launder money for weapons purchases for South Africa’s state-owned arms company, Armscor, in a web of accounts spanning France, Germany, the US, Switzerland and many more.
The banks had, for all intents and purposes, designed and run a system for the apartheid regime to build a weapons collection undetected by the world.
Open Secrets and Cals laid a complaint against the banks with the Belgian National Contact Point (NCP) and the Luxembourg NCP of the Organisation for Economic Co-operation and Development (OECD), to ensure that evidence about the crimes was brought to the attention of the public and authorities in the European countries where the banks are based. The Belgian and Luxembourg NCPs are state entities.
The complaint called for these states to take punitive action against the two banks, a public apology to the South African government, acknowledgement of a breach of the OECD guidelines and the implementation of a European-level monitoring mechanism.
But after a year of waiting on a response from the OECD, instead of the mandated three months under the OECD guidelines, the complaint was nonchalantly shut down in 2019.
Since the previous attempts at corporate accountability for apartheid crimes were done through the legal system, the OECD route was new.
“When it comes to massive human rights abuses, such as genocide, war and the crime of apartheid the law has lagged significantly in holding wealthy private profiteers to account,” says Van Vuuren. “Open Secrets and Cals felt it important to test the OECD NCP mechanism in particular, because it purports to provide a mechanism dedicated specifically to tackling human rights violations by multinational corporations.”
Quintet replied in two sentences refuting the allegations and reaffirming “its commitment to upholding the highest standards of corporate governance”. KBC sent a one and a quarter page response denying any liability for the crimes.
During the complaint process, the organisations also discovered a conflict of interest. The decision-making structures at the Belgian NCPs includes the Federation of Enterprises of Belgium, and Comeos, which are employers’ federations. Both of these have senior executives from KBC in influential positions. Ultimately, the Belgian NCP would, for all intents and purposes, be deciding whether to investigate its own people. When the organisations raised this issue, it was brushed off with a vague explanation.
It is clear that the OECD is protective of the banks. The Luxembourg NCP’s response claimed that because both banks denied the allegations, it would be more difficult for either to be held liable because they are now no longer linked, and could not be expected to hold on to documents from 50 years ago. Furthermore, the “decision-makers” in the bank may not even have known that financial vehicles were being used for “illegal and clandestine sales of weapons”.
And so, another accountability mechanism bites the dust.
“The stakes for Luxembourg, one of Europe’s most important tax havens, is significant,” says Van Vuuren. “Their economy has boomed as a result of the secrecy provided to dubious clients such as the apartheid arms dealers in the past. The Belgian bank we are targeting — KBC — is one of Belgium and Europe’s largest banks and historically close to the interest of the wealthy, politically connected Flemish elite. The pushback is massive and this makes our fight all the more important.”
In response to questions from the Mail & Guardian, Stef Leunens, the press officer for KBC wrote: “KBC investigated the complaint and the NGOs’ [nongovernmental organisations’] supporting documentation as far as it was able to, given they referred to facts that dated from the period 1977-1994. However, as the related documents no longer exist, no verification of the allegations made by the NGOs was possible.”
Nicholas Nesson, head of communications for Quintet, said they have no additional comment following the OECD’s decision.
Open Secrets is now turning to other legal mechanisms. But history has shown that this route is tough to say the least.
“There is no real system for holding apartheid banks accountable,” says Miriam Saage-Maaß, vice-legal director at the European Centre for Constitutional and Human Rights in Berlin. “It’s quite a sketchy scene and those who create the legal system don’t want these crimes to be accounted for.”
So what about state-support at home?
The way in which the government has reacted to these attempts at accountability has shown that the legacy of corporate impunity created by the post-apartheid administration remains intact and, as time passes, it is increasingly difficult for civil society to do the job themselves.
Already in 2003, state support started off on the wrong foot. During the apartheid litigation, Penuell Maduna, then the minister of justice and constitutional development under then president Thabo Mbeki, wrote a letter to the US district court actively discouraging the lawsuit on the grounds that “these proceedings interfere with a foreign sovereign’s efforts to address matters in which it has the predominant interest” and that “it remains the right of the government to decide and finalise issues of reparations, both nationally and internationally”.
Maduna’s affidavit overvalued the outcomes of the Truth and Reconciliation Commission and emphasised the detrimental effect the lawsuit would have on the South African economy, by deterring foreign investment.
And it worked.
“Many of the companies that need to be held accountable continue to make money here today, and many made a seamless transition into the post-apartheid era,” says Bonita Meyersfeld, the former director of Cals. “The resistance was economically driven, and Mbeki really tied a neat bow around this.”
That apartheid perpetrators get off the hook so easily, and still make profits in South Africa, is one reason it should be no surprise that De Klerk says he was unaware of the UN declaration pronouncing apartheid a crime against humanity.
There was some hope when Jacob Zuma’s administration showed an apparent change in attitude in 2009, when Jeff Radebe, who was then the minister of justice and constitutional development, wrote a brief letter to the US district court saying the government believed it was “an appropriate forum to hear the remaining claims of aiding and abetting in violation of international law”.
Although saying they did not oppose the litigation, they also did not withdraw Maduna’s affidavit.
With the legal and OECD mechanisms failing the South African victims of apartheid, this remains a pivotal time for the South African and European governments to show their commitment to post-apartheid justice.
“For the South African state this is an opportunity to argue for justice, because of the harm that apartheid wrought, but also because we continue to see the role that banks play in enabling state capture in countries like South Africa today,” says Van Vuuren. “Our history is one of compromise that too often has favoured the very wealthy who profited from these crimes. Tackling all the economic criminals of the past and present is how we will root out impunity.”
The legal strategy Open Secrets uses next will be something to watch.
The fight for justice for Timol and Aggett, and hearing the last apartheid president admit his ignorance to the severity of a criminal regime in the context of continued discussion about corporate impunity, makes this a crucial time for the state and the people to keep the struggle for apartheid accountability resurrected.
This time for good.