Khulumani: Serving whose interests?

On April 8 2009 Judge Shira Scheindlin of the US District Court for the Southern District of New York granted Khulumani Support Group and others permission to proceed with litigation against corporations accused of aiding the apartheid government to perpetrate crimes against humanity. This non-governmental organisation is submitting claims against multinational giants such as General Motors, Ford, IBM, Rheinmetall Group, Barclays, Daimler, Fujitsu, UBS, Dresdner, Deutsche, Credit Suisse etc. This litigation running into billions of US dollars is based on allegations that these multinationals “aided and abetted apartheid crimes, including, torture, extrajudicial killings and denationalisation, all committed in violation of international law”.

If at all there should be any litigation it should be against the US government. It was Ronald Reagan’s administration which significantly relaxed the arms embargo instituted against the apartheid government. The Reagan administration’s destructive policy of “constructive engagement” aided and abetted apartheid crimes. The illegitimate Nationalist regime had embarked on a murderous campaign against liberation fighters because with US government support it was able to cling onto power, including the purchasing and producing of armaments. If there is anyone against who class action should be brought, it is the US government.

It is rather alarming that the ANC government of Jacob Zuma would elect to support such litigation; contrary to the decision by the previous government led by Thabo Mbeki. Mbeki opposed such a move on grounds that it would discourage much needed flow of investments into the country. Minister of Justice Jeff Radebe wrote an undated letter to Judge Scheindlin confirming the decision by government not to oppose this litigation. One has to ask whether the ANC government would also support litigation by survivors and families of victims of gross human rights violations committed by the ANC in its fight against apartheid.

The Truth and Reconciliation Commission (TRC) found the ANC, its NEC and Umkhonto weSizwe to have been “morally and politically accountable” for contravening the Geneva Protocols by committing gross human rights violations “in the course of their political activities and in the conduct of the armed struggle”. Zuma should be reminded that the ANC in its TRC submissions accepted “full political and moral responsibility for the actions of its members, large numbers of NEC members and those involved in ANC hierarchies”. The submission was in application to the TRC for collective amnesty. The Amnesty Committee initially granted the ANC amnesty but it was subsequently overturned by the Supreme Court. The TRC report states that “the applications [for collective amnesty] were considered again by the Amnesty Committee and were refused”. It is clear that the ANC too has a case to answer. Will Radebe support a similar litigation against the ANC?

Besides the ANC leadership and its members there are many others who were not granted amnesty by the TRC and in fact many of these including these multinationals did not bother to apply for amnesty. The Zuma government has set a bad precedent by overturning the decision of the previous ANC government. The decision looks even more suspicious, if not pathetic, when noting that a Zuma appointee to the Judicial Service Commission, advocate Dumisa Ntsebeza is one of the leading lawyers in this case.

The majority of South Africans, black and white, do acknowledge that apartheid was a shameless crime against humanity and are committed to correcting the wrongs of the past and building a unified country. South Africans on both sides of the spectrum lost their loved ones. During the struggle for liberation there were those who rightfully saw themselves fighting a just and revolutionary cause, while others were on the defensive side of wanton acts of gross violation of human rights. It may seem logical that those who were wounded in whatever manner as a result of multinational corporations supporting the apartheid regime, in violation of the UN sanctions, which included restrictions on investment and trade, pursue a case against these corporations.

However the question then arises regarding its appropriateness and fairness, whether siphoning billions of dollars of these almost bankrupt multinationals would serve any meaningful purpose besides largely improving the wealth of lawyers representing victims of apartheid, whether survivors and families of victims of apartheid represented by Khulumani would be the sole beneficiaries of whatever proceeds of this litigation and if so, does it mean others can proceed with their separate litigation to milk these multinationals dry? It would appear that the primary motivation for pursuing this litigation is monetary compensation. No amount of billions of dollars would bring back victims of apartheid crimes nor heal the wounds inflicted upon survivors.

Government should be setting the nation on the path of healing and nation-building. While none of us can forget nor deny the atrocities that were visited upon ordinary people, the unfortunate truth is that neither side can proudly claim the moral high ground on this issue. Each of the parties has the blood of innocent victims dripping from their fingers.

Are we as a nation not guided by amiable virtues of forgiveness and reconciliation on such matters relating to the painful political past? The noble pursuit of justice should not be allowed to be compromised by an ill-considered quest for selective justice. The worst of the apartheid criminals still roam our streets and have not faced criminal charges. Some of those who maimed and killed under the false pretext of fighting a just cause may be within the echelons of power.