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22.05.2007 Feature Article

Justice Under the Rule of Law and Reparations for Historical Justice

Your excellencies, invited guests, students, ladies and gentlemen, the nature of the topic “Justice Under the Rule of Law and Reparations for Historical Justice”invites explanation of what justice under the rule of law entails, what reparations means and its importance in addressing crimes against humanity in all its forms including the slave trade, slavery, colonialism and neo-colonialism. Issues I shall cover, if time permits, include the legal basis for the claim of reparation, crimes against humanity perpetrated against people of African descent, and the uniqueness of slavery of Africans. I shall answer the controversial questions: who should make the claim, who should pay, and what is the reparation amount? I shall explain the need for a united front in the reparation struggle and the strategies available to the African family should the perpetrators refuse to pay.
The Legal Basis of the Claim for Reparation

The rule of law which most countries embrace today, assumes the existence of a system of law that is itself just and unbiased judges. Its principle of natural law holds that neither the accused nor the complainant be judges over their own cases or be allowed to unilaterally erect barriers or interfere with the due process of justice. According to its case law, judgment in the same or similar cases should not vary significantly. The rule of law requires all persons or entities to be treated equally. In the kingdom of the rule of law, might is right or survival for the fittest has no place.

Crimes against humanity have been defined through the Nuremberg tribunal as "Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population . . . whether or not in violation of the domestic law of the country where perpetrated." Moreover, the United Nations Convention on the Prevention of Crime and Genocide defined genocide- a crime against humanity - to include deliberately inflicting on a racial or ethnic group "conditions of life calculated to bring about its physical destruction in whole or in part." Historians from the same countries that committed crimes against humanity during the slave trade and colonialism testify to the unprovoked invasion of African territories, the mass capture of Africans, the horrors of the middle passage, the chattelization of Africans in the Americas, and the extermination of the language and culture of the transported peoples. From their testimony and the definition of crime against humanity under the Nuremberg tribunal and the United Nations Convention on genocide, the slave trade, slavery and colonialism in Africa are crimes against humanity.
Reparation is atoning for the wrongs of the past. It has the advantage of compensating the aggrieved to avert the possibility of future retaliation thereby fostering peace and harmony among the parties concerned. In international law, a country that has committed an international crime including invasion, occupation, or genocide in another country is obliged to atone for its wrongs by compensating the victims including their descendants who continue to suffer from the consequences of that crime.

The right to reparation was recognized in human history. Reparation has been paid directly or indirectly in both ancient and modern history. In Biblical history, Moses indirectly compelled Egyptians lending jewels of silver, gold and raiment to women of Israel to provide the Israelites with the reparation due them for centuries of enslavement in Egypt. In 1863, the Czar of Russia, Alexander I, after ordering the liberation of the 25 million serfs, compelled the serf-owners to pay reparation by conveying to those serfs the houses in which they lived and portions of the land they had cultivated while working as serfs. In modern times, the right to reparation was confirmed in international law when the Permanent Court of International Justice defined it in 1928. Case law in the international arena buttressing the right to reparation include the following:
1. The 1952 agreement between the Federal Republic of Germany and Israel for the payment of $222 million, when Jews who fled from Nazi-controlled countries claimed reparations.
2. The 1990 Austrian payments totalling $25 million to survivors of the Jewish Holocaust.
3. Japan's reparation payments to South Korea for acts committed during Japanese invasion and occupation of Korea in World War II.
4. The UN Security Council's passage of a resolution, which it considered binding in international law, requiring Iraq to pay reparations for its invasion of Kuwait.
5. The United Civil Liberties Act of 1988 that provided restitution to Japanese Americans for losses resulting from their internment and ill-treatment at the hands of U.S. authorities during World War II, and subsequent payment of a total of $1.2 billion, averaging about $20,000 per Japanese American claimant.
6. The 1995 Waikato Raupatu Claims Settlement Bill over which Queen Elizabeth personally presided giving reparation for the 1863 British seizure of Maori land in New Zealand. Due apology was rendered, land was handed back and an additional $40 million (U.S.) was paid in compensation.
The particular case of the Maori of New Zealand confirmed that there can be no justified barrier to reparations rationalized on the basis of long time. Once the Maori were paid reparation the principle of case law kicked in to require that Africans be not denied the same. In addition, it is a case in which the descendants of the original victims were granted reparations for the loss of their ancestral land and cultural defoliation. Moreover, since the rule of law requires that neither the accused nor the complainant has the right to unilaterally erect any barrier to the judicial process, it is unlawful and unacceptable for the accused nations to pass their own laws setting time lines to protect themselves from being held to account. It should not be forgotten that “might is right” is antagonistic to the rule of law. However, before reparation, the crimes against humanity perpetrated against people of African descent must be explained.
Crimes Against Humanity Perpetrated Against People of African Descent

Consideration of crimes perpetrated against people of African descent, in turn, demands an explanation of the meanings of slave, slave trade and the different forms that slavery or enslavement may take. A slave may be narrowly defined as a human chattel who is the legal property of another person or broadly defined as a person who is entirely under the domination or some influence of another person. Slave trade is the business of procuring, transporting and selling slaves and especially, in modern times, the bringing of African captives to America to be enslaved.

The definition of a slave as a person who is the legal property of another implies that the slave trade involving the sale of Africans was legalised by the governments of those nations that engaged in it. The broader definition of slavery enables the post-independence neo-colonial phase of Africa's development in which African countries are still dominated and dictated to in the economic, political, and ideological spheres, and relegated to the position of mere price-takers in the oligopolistic world market to be regarded as another period of slavery. Hence, Africa's development history since the fifteenth century is slavery in three distinct physical forms of captive slavery, colonial slavery and neo-colonial slavery.

There are other non-physical forms of enslavement which are more subtle. If any person or a group of persons is denied equal opportunity by reason of colour, class, creed, religion, or gerrymandering, that person or group of persons may be said to be enslaved. This is slavery by denial of opportunity or opportunity enslavement. It applies to the period when Africans were said to be free, but did not have the same rights as whites and to any situation when Africans are supposed to have equal rights with whites, but do not have the same opportunities as whites. The struggles against apartheid and the civil rights movements in the United States are typical examples of rebellion against the injustice of slavery by denial of opportunity.

Long periods of oppression and suffering culminate in enslavement within the psychic sphere where the victim regards the oppressor as a demi-god. This mental slavery occurs under all the forms of enslavement discussed earlier, and Africans are socialized into it continuously by the racist structures of human society. In his letter to Governor Pope Hennessy in Freetown in 1872 as cited by Eric Ashby (1966), Edward Blyden explained that mental slavery was more subversive. He wrote:

All educated Negroes suffer from a kind of slavery in many ways far more subversive of the real welfare of the race than the ancient physical fetters. The slavery of the mind is far more destructive than that of the body. (p.454)

The Uniqueness of Slavery of Africans
Though the phenomenon of slavery is not limited to Africans, the enslavement of African is very unique. The uniqueness of the slavery of Africans stems from five reasons. Since the fifteenth century, Africans have been the only section of human society that has been subjected massively to captive slavery. The second is the construction of a vertical mosaic of racism by Western Europeans to rationalize that particular enslavement. Thirdly, it was on a scale unprecedented in human history and lasted for as long as 350 years,` and colonial enslavement immediately followed it. The fourth is that super-profits from the labour of African slaves made possible the investments that resulted in the industrial revolution which has so far benefited other human societies more than people of African descent. The fifth is much more humiliating, continuous, and devastating to Africans everywhere. Because captive slavery was rationalized in terms of the inferiority of the African, Africans have since been relegated to the very bottom of an international vertical mosaic of racism. Western imperialism was so colour conscious that the only position it could offer Africans was the very bottom of the racist ladder. While African scientists, sportsmen and soldiers contribute to make the United States popular, powerful, and great among the nations of the world, this vertical mosaic of racism simultaneously oppresses and perpetuates the mental slavery of Africans in that same country. Indeed, Africans irrespective of their level of education or expertise are looked down upon by other races.

The special history of atrocities of captive slavery and the excruciating effect of the international vertical mosaic of racism on the African family for the past 500 years justify reparation from those responsible. The atrocities both Arabs and Europeans committed against Africans were so horrendous that only substantial reparation can appease Africans. I cite two examples of these horrendous atrocities as an illustration. Sir H. H Johnston cited by Batten (1964) described a typical atrocity-rooted Arab racism and enslavement of Africans when he wrote about an expedition in 1822 - 1823 as follows:

After they got past the more settled areas of Fezzan into the desert country, where lived Negro Tibus, they began to see signs of the slave trade across the desert. Round most of the wells they stopped to get water there were numbers of human bones lying about in the sands. ........ Denham counted a hundred persons bones round one well, with the skin still on them. The Arabs with him however laughed at his pain at this sight and said: “They were only blacks”. ....... Denham was told that these slaves often left Bornu with very little food, so that more died of hunger than tiredness or even thirst. They were made to march with heavy chains round their necks and legs. (Pp.131-132)

David Livingstone, cited in Batten (1964), provided an illustration of the similarity between Arab and European atrocities when he described a typical Portuguese slave caravan he helped to free. Livingstone writes:

The prisoners knelt down and, in their way of giving thanks clapped their hands together with great joy. Our knives were soon busy at work cutting the women and children loose. It was more difficult to cut the men loose as each had his neck in the fork of a heavy stick, six or seven feet long, and kept in a piece of iron which was fastened at both ends across the throat. Many of the children were about five years of age and under. Two of the women had been shot the day before for attempting to untie their ropes. One woman had his baby's brains knocked out, because she could not carry her load and it. (p.43)

Surely, the Arab and European slave trades in Africans and slavery may be regarded as one of the most abominable international crimes in human history. The claim of Africa and its Diaspora for reparation is therefore well founded in international law. Unfortunately, and despite the existence of a legal framework of international Charters and supporting case law, the slave-trading nations that institutionalized the crime against humanity have been reluctant for centuries to pay due reparations with honourable apologies. In a twist of justice, the same nations of Europe and America that emphasize the rule of law all over the globe today granted reparations to the slave masters for losing their slaves, but nothing to the manumitted slaves. The British Parliament proudly insulted justice by approving a reparation of 20 million pounds to slave owners already rich through the labour of the manumitted slaves. Other European powers that legalized slavery emulated the British example. France, Denmark, and the Netherlands paid reparation to the slave masters, but nothing to the manumitted slaves, and United States government refused to honour its meagre promise of “40 acres of land and a mule” to the manumitted slaves.
Africa, the manumitted slaves and their descendants who suffered have received practically nothing. So far, the call by people of African descent for reparations have fallen upon deaf ears. Questions raised to counter the claim for reparations include who should claim, against whom, for what amount and in what court? Since reparations have been paid to other people of this planet, such questions may be considered manipulations for responsibility avoidance.

Who should make the claim?
The question of who should make the claim is easily answerable. Both Africa and its Diaspora suffered when the continent was invaded, its strong and able bodies were taken away and subjected to slavery. Under colonial enslavement all Africans including their kings, queens and emperors were humiliated and enslaved. Africa and its Diaspora constitute the claimants. The argument that some minority of Africans collaborated with the perpetrators does not absolve the slave-trading nations of Europe and America from any blame for committing the crime against humanity. Moreover, people of African descent paying reparations to other people of African descent is an internal matter for Africa and its Diaspora which leads no gain or loss on the whole for –X + X equals zero.
Who Should Pay?

Those who should be held responsible for payment are the Arab and European nations and their institutions involved in the slave trade and enslavement of Africans. The literature on slavery in Africa including the works of Fage, Ivor Wilks, Paul Lovejoy, and Eric Wolf all identify certain countries in Western Europe, the United States and Muslim Arabs as those who enslaved Africans through the captive form of slavery. The identified nations of Western Europe include the Portuguese, the Dutch, the Danes, the Swedes, the French and the British. However, given that the Arab slave trade in Africans was minuscule compared to the European Atlantic and trans-Atlantic trade in Africans, European governments who institutionalized slavery and the slave trade should bear the larger portion. However, other institutions involved should not be left off the hook.

Long before the industrial revolution, gold from West Africa had been moving for centuries across the Sahara to the Maghreb, Egypt, the Mediterranean in general, and to Europe. 4 During the fifteenth century, the requirement of gold as a means of exchange stimulated and increased European demand for West African gold and in 1484 Pope Nicholas V created the myth that the Negroids of West Africa were Saracens (the Islamic Arabs and Turks at war with Christendom) and authorised the Portuguese to enslave them. This authority was renewed successively by Pope Calixtus in 1456, Pope Sixtus in 1481 and Pope Leo X in 1514. (Maxwell, 1975, pp 52-54). Later, the various Christian Churches not only condoned or connived at this crime against humanity, but also endorsed, encouraged, were deeply involved in institutionalising it and thereby disqualified Africans from the salvation of Christ. 6 These Christian institutions must also be held to account.

It is to be noted that the Atlantic slave trade was not born out of the desire of Africans to sell their fellows, but out of the desire of a European nation, Portugal, to obtain gold from African soil with the authority of a Pope. Secondly, the character of the process was European raid of African villages to obtain captives for sale to fellow Europeans in Africa, Europe or the Americas. Europeans in Europe, Africa and the Americas created the demand, and Europeans in Africa mainly created the supply through a combination of their superior military might and trickery. The number of minority Africans who collaborated was relatively very small. In any case, before that European demand was created, there was no epoch of slavery in Africa. Indeed, the notorious slave raider, John Hawking testified that it was precisely because West Africans had no idea about slavery that they were naïve enough for Europeans to easily capture and sell them. When that European demand was killed, the European slave trade in Africans died. How can Africans as a whole be blamed for this except that when the aggressor or his agent writes a history of Africa, it is to be expected that the facts may be twisted to give an impression that African cannibal rulers refused to eat Europeans, but most willingly and readily sold their own strong people and kept the weak?

Moreover, the colonial conquest and colonial enslavement that followed subjected Africans to processes of underdevelopment in which their human and material resources were exploited for the development of Europe and America. Thus, under colonialism, most African economies were transformed into mono-crop economies that were vulnerable to the world market, and colonial government policies of domination and exclusion prevented the development of indigenous entrepreneurs who might have continued with the development processes immediately after independence.

Colonialism turned out not to be a civilizing mission at all, but another form of slavery. Does a nation become more civilised after it has been conquered and its riches exploited to the benefit of the conquerors and their allies? Considering the brutality of the colonial conquests and the character of the colonial enslavement itself including problems of European settlers of Eastern and Southern Africa; the institutionalization of apartheid in South Africa by European settlers; the exploitation of the wealth of the continent on a very large scale to the benefit of the colonizers; the very parsimonious character of the infrastructures of present-day African nation-states; the colonial strategies of stifling the development of African capitalists and entrepreneurs; the institutionalisation of the colour bar in Europe and America; and open discrimination against African populations by the colonizers, the mission might correctly be described as banditry. Consequently, on the eve of nominal independence, African economies were so weak that true de-colonisation was not possible. The inherited colonial structures assisted by the oligopolistic world market continue to perpetuate the same colonial domination and exploitation. The IMF and World Bank guided Structural Adjustment programs have been ineffective in changing these colonial structures principally because their harsh conditionalities are biased and rooted in the same vertical mosaic of racism.
Identified companies, banks and families who made vast profits from slavery and colonialism and continue to do so from their inherited wealth should pay some reparation. Return of treasures of art looted in the course of invasion of Africa is appropriate within the international law of restitution requiring the return of such treasures to specified African countries that most closely represent the original owners.

The Reparation Amount
The amount of reparation to be paid can be estimated. The estimated amount can be divided among the defending nations by population ratio. Other identified institutions can be allocated their quota in proportion to their assessed wealth. I published an article in the Journal of Black Studies estimating the reparation to be conservatively at least US$100 trillion. That estimate may be revised up to include losses arising from Africa's loss of its flourishing civilizations, loss of millions of its strongest able bodies and the slavery system in America that gave rise to poverty, inculcation of inferiority among black people, and the indoctrination of whites into a racist mindset which were not considered in my estimate. The reparation claim may be settled by agreement failing which an international court excluding representatives from the slave-trading and colonizing nations from its panel, but recognized and accepted by all parties be constituted. Its decisions should be binding on the defendants.

The question as to whom the reparation should be paid is not difficult to answer at all. It should be paid to Africa and it Diaspora as a whole. Africa and its Diaspora does not lack trained bankers. A Bank of Africa and Diaspora can be established into which the reparation amounts can be paid and disbursed for development purposes. Instead of borrowing money from the IMF and the Word Bank under harsh conditionalities, African governments, businesses and institutions within the diaspora can then borrow from this bank with dignity and respect.

The Need for a United front in the Reparation Struggle
The need for a united front in the struggle for reparation is paramount. Africa and its Diaspora have struggled for decades for righting historical wrongs and for addressing their plight of hundreds of years of poverty and discrimination arising from those ignoble economic systems of the slave trade, slavery, colonialism and neo-colonialism. In an OAU summit of 1992, African heads of state appointed a group of eminent persons to explore the reparations issue. In 1993, the group organized a Pan-African Conference in Abuja under the chairmanships, of Chief Moshood Abiola of Nigeria and Amadou-Mahtar M'Bow, the former UNESCO Director-General.

According to the proclamation of that Conference, the destructive consequences of slavery, colonialism and neo-colonialism could not be a thing of the past; the debt of reparations owed to people of African descent cannot be written off; called for "full monetary payment ... through capital transfer and debt cancellation", international recognition of the slave trade officially as a crime against humanity and for the former slave-trading nations to apologize. Support from African American groups who also called for reparations from the United States government and the 1991 Pope John Paul's apology for the sins that Christian Europe committed against Africa while visiting Senegal's Goree Island, one of the main transit centers for the trans-Atlantic slave trade, served to buttress the legitimacy of the claim. Ultimately, the reparation issue was included in the agenda of a Conference organized in Durban in 2001.

Unfortunately, the African leaders at the Durban conference could not forge a united front as the representatives at the Abuja Conference did. It was disheartening to hear some African leaders, including Senegal's President Abdoulaye Wade, Nigerian President Olusegun Obasanjo, President Pedro Pires of Cape Verde and President Denis Sassou-Nguesso of the Republic of the Congo argue against the payment of reparations while on the other side of the divide Zambian Vice-President Enoch Kavindele, Martin Belinga-Eboutou, Cameroon's UN ambassador, George Chikoti, the Angolan Minister of Foreign Affairs and Jean de Dieu, Rwanda's Minister for Justice and Industrial Relations argued in favour of it. Their own division betrayed Africa and encouraged the European representatives to adopt a strong and united stand against both apology and reparation.
Consequently, the conference had to settle on the weak statement that it "profoundly regrets the massive human suffering and the tragic plight of millions", and suggested that the matter should be left to each slaving county's discretion. In the end, the final declaration of the August 31 to September 7 conference in Durban, South Africa was the lukewarm diplomatic statement “Slavery and the slave trade were appalling strategies … a crime against humanity, and should always have been so.” On the surface, it seems a very nice statement, but deeply beneath the surface were problematic issues which sent the message that the person of African descent is still far from being accorded equal right and justice on this planet. Most disheartening, the European resistance did not end with the declaration. Speaking on behalf of the European delegation after the declaration, Louis Michel, the Belgian Foreign Minister asserted that the declaration and its program of action were mere political documents which were not intended to impose obligations, liability or right to compensation
Despite these problems, Mary Robinson, the UN High Commissioner for Human Rights as well as the Secretary-General of the Conference commented that the same toothless and ambiguous document “sets out the issue in plain unequivocal language for the first time” and “will resonate throughout the world and especially among those who still bear the scars” of slavery. Since the issue has been resonating among people of African descent for about five hundred years without any resolution through reparation, I wonder why Mary Robinson wanted more of the same.
Those African countries and representatives who were not pleased with the toothless declaration pledged to continue pressing for an outright apology and reparations. Pressing for reparations, Archbishop Desmond Tutu, has argued that compensation was a way for the former slave-trading nations to say, "We are sorry for what happened." That statement is very encouraging. The reparation struggle must continue unabated. Considering the structure of power relations in the world today, however, the chances are that the perpetrators may refuse to pay. In the mind of the perpetrators, the notion “might is right” is like Johnny Walker, born 1820, still going strong.

Strategies Available Should the Perpetrators Refuse to Pay
However, there are potent strategies still available to the Diaspora. One strategy is for countries within the African family to refuse to sign or honour any international treaties until the perpetrators demonstrate their willingness to pay annual interest on the estimated amount of reparation. For example, they should not sign the nuclear non-proliferation treaty, and if some have made the mistake of signing it, they should rescind their decision. That treaty essentially, permits some particular section of human society to amass nuclear weapons while simultaneously denying others that right. It should not be forgotten that when that particular section of human society had the advantage of the maxim machine gun and cannons, it used those weapons to colonize the African continent. What is the guarantee that after refusing to pay the reparation it will not proceed to use the nuclear weapons to exterminate Africans or recolonize the continent? Indeed, the very refusal to pay the reparation is proof of refusal to repent and seek peace. Never trust trust the unrepentant soul!

As a reparation strategy, the Diaspora should refuse to take part in the Olympic Games and organize Diaspora games in Africa, the Mother Land. Africans continue to excel in sports and have been great inventors to the benefit of the whole human race.10 None of these has been able to eradicate the racist wall. There is no point in competing in the same games with people who so look down upon Africa and its Diaspora that they are willing to support reparation to any race on this planet except to Africans.

Peaceful demonstrations against injustice is an acceptable strategy. The Diaspora should organize demonstrations in large numbers at the capitals of the perpetrators, at the offices of the United Nations, the Vatican, the headquarters of the Protestant Churches, and around the Mosques of Islam. Africa and the Diaspora may also boycott selected goods produced by companies with their headquarters in the countries of the perpetrators.

I have a very sweet message for the perpetrators who refuse to pay reparations. If due reparation including appropriate restitution had been implemented, the situation in Zimbabwe could have been avoided. The blame for what is happening now should be laid squarely on two entities: Cecil Rhodes who deceived King Lobengula, brutalized the Zimbaweans and robbed them of their land and on Britain who refused to pay reparations. Do not blame Mugabe! Blame Cecil Rhodes and the British government!

Conclusion
In conclusion, there is an international legal framework buttressed by case law for claiming reparation including restitution to atone for the wrongs of slavery, colonialism and neo-colonialism perpetrated against people of African descent. There are potent strategies including legal action, but it requires steadfastness, commitment and a united front. Thanks.

Daniel T. Osabu-Kle
Daniel T. Osabu-Kle, © 2007

This author has authored 2 publications on Modern Ghana. Author column: DanielTOsabuKle

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