What must be done about past harms?

Many of the new laws and policies in Zimbabwe are (in their best light) an attempt to rectify past harms. In fact, much of the discourse about justice in Africa concerns compensation for past harms. Simplistically, the idea is that imperialism, invasion and exploitation harmed much (all) of the developing world. Independence of these nations ended that harm. However, the harm continues because years of dominance deprived indigenous populations of an opportunity to educate themselves, gain work experience and become middle-class rather than rural poor-this is the continuing harm that deprivation caused by oppression causes. Countries all over the world have attempted to compensate oppressed peoples of all kinds for harms caused to them from a dominant majority. It continues to this day. Does any of it make any sense?? There are real problems with attempts to pay for past ‘mistakes’ or oppression.

Firstly, many reparations schemes cannot hope to realistically address a continuing harm when the oppression lasted over many years, nay centuries in some cases. The law cannot always design programs that extensive. Laws can do simple things like pay money, even over time, but it cannot right vast wrongs. I belive Society needs to do that. Its continuing harm. If you start someone off wrong it can be nigh impossible to set that right. Just ask anyone with kids. You must do something drastic and it usually involves you changing as well.

Secondly, reparations schemes sometimes lack finality. Just look at Truth and Reconciliation (not exactly reparations per se) in South Africa. The multinational corporations never participated and now we have suits in American courts over things that took place way down there.


Historically reparations schemes worldwide some were predominantly for war related harms such as: France paying Germany for reparations after the Franco-Prussian Was of 1872, Holocaust reparations paid by West Germany after World War II, Iraq reparations for the Gulf War. In the US, Native American Indian reparations take the form of Indian gaming laws on reservations (Indian land) as well as Japanese American World War 2 internment reparations, Hawaiian Annexation reparations and there are some more on the list. Some of these programs have their critics. Indian gaming rights has not reduced poverty or significantly contributed to better education on reservations. It has, however, forced some tribes to give up power in order to exercise their federal right to allow gambling on reservations-kinds of a step backwards rather than forward. (See Naomi Mezey, Note: The Distribution of Wealth, Sovereignty, and Culture through Indian Gaming) What the US has never approved of are reparations to African-American for slavery and the continuing harm this causes to the African-American community in the US. A critical legal scholar argues that a dominant perspective frequently causes those included in the dominant culture –members of the class that exerts economic and ideological control over a society—to minimise the need for reparations.

The ‘other’ perspective is the oppressed. Under this rubric we each will frequently only understand reparations from our separate perspective and not from the other perspective. This is a problem for the oppressed who never have others see their point of view. (see Vincene Verdun, If the shoe fits wear it: an Analysis of reparations to African Americans, 67 Tul L Rev 597, 610, 1993) The majority does not understand the concept of a continuing harm and want African Americans, for example, to just get on with it and give up the pursuit for reparations. However, there is an entirely different viewpoint which is that of the African American, in this example. The other viewpoint is not that of American individualism and limitations on liability. It is the viewpoint of the continuing harm that cannot rise above the detritus of the oppression because it is pervasive.

And what about all the other genocides and atrocities world wide whose victims never saw reparations—such as the raping of Nanking along with the other terrible things the Japanese did in mainland China before the outbreak of WW2?? No one will ever be compensated for any of those horrific events. What can we do about that? Apparently not much and maybe because we don’t feel guilty enough. Judith Butler a feminist scholar has argued that we even consider some lives worth grieving for and others-not so much (see Judith Butler, Frames of War: When is life grievable? 36 (2009))

I do believe the Indigenisation law in Zimbabwe uses a similar argument to support itself. The argument is that there is a harm that cannot be rectified by cash payment-rather the payment must be in kind. Companies doing business in Zim must be owned by indigenous Zimbabweans. This is one creative way to rectify and remedy a past harm which is the oppression of blacks. We could not have something similar in the US because of our Constitution. While some Justices of the Supreme Court have argued that the Equal Protection clause of the Constitution is colour blind*, the simple fact is that a law can be passed that is strictly based on race but if challenged it would face the strict scrutiny test, which asks if the legislation is based on a compelling governmental interest and narrowly tailored to achieve that interest. What is the governmental interest in Zimbabwe that allows for the Indigenisation law ?

I think the main difference between most of the reparation schemes I know about and the Indigenisation law in Zim, is that most reparations schemes are designed with the idea that there will be continued interaction between the peoples who are currently resolving past harm issues. In Zim, the Indigenisation programme is corrective justice but on a societal level. Somehow these plans force out the white majority rather than work together with them. Furthermore, since foreign owned firms are also affected by the indigenisation empowerment programme, this law will reach beyond its borders.

If we agree with the critical legal academe that there is a dominant view, then many will criticise the indigenous empowerment programmes in Zim but only because they cannot see the other side. It is possible, for arguments sake, they these schemes are not so wrongheaded. Certainly, the US has not really been able to get things 'right' with the Native American Indians. Also, concepts of constitutional law have prevented us from providing reparations to certain groups who suffered great harm.

Ultimately, what must be determined is whether these laws are effective in achieving what they say they desire-black empowerment across the country--and not simply enriching a few.




http://nankingthefilm.com/

See Eric Posner, Adrian Vermeule, Reparations for slavery and other historical injustices, 103 Columbia L Rev 689 (2003)

*Adarand Constructor, Inc v. Pena, 515 US 200, 239 (1995)

Indigenisation laws, Apartheid and the Alien Tort Claims Act

On April 15 2010 all companies in Zimbabwe are required, under the new Indigenisation and Economic Empowerment Act, to provide an indigenisation implementation plan to the government. Indigenisation means that 51% of shares in all companies with asset values over $500,000 must be owned by indigenous Zimbabweans. The law discriminates based on race. However, they function as an affirmative action plan which intends to advance the interests of people who were previously discriminated against. Much like the land reform programme this new scheme will compensate for years of discrimination under white rule in Zimbabwe.

The United States has decades of experience with affirmative action programmes for example the Civil Rights Act of 1964 prohibiting discrimination based on race in a program or activity that receives federal funding. Additionally, South Africa has implemented the Broad Based Black Economic Empowerment Act to remedy past discrimination there. All of these programmes have their critics. Often only specific groups or people benefit from them. Also, the dominant group that is now excluded from preferential treatment-feel s mistreated. Indeed, the State of California passed Proposition 209 in 1996. This initiative amended the California Constitution and prohibited public institutions from considering race, gender or ethnicity for public employment, education or contracting. In 2009, the US Supreme Court held that the city of New Haven Connecticut committed reverse discrimination by failing to promote white fire-fighters who performed well on an exam, in order to promote minority fire-fighters. See Ricci v. DeStefano, 557 US (2009).

All the Indigenisation law in Zimbabwe does is exactly what all the other affirmative action laws worldwide do. Is it possible however that the SADC tribunal ruling finding the land programme in Zimbabwe illegal and now registered in South Africa could set a legal precedent for companies seeking to defeat the Indigenisation law? A company, who felt discriminated against under the new Indigenisation law, would need to sue the government of Zimbabwe under a SADC tribunal and receive a favourable judgment. The question is how likely is the government of Zim going to participate in such a process? Not likely at all given previous results and Zim’s demonstrated defiance for unfavourable SADC policies. Also, it is possible that corporations do not have standing to claim discrimination.

In the US, a corporation may sue for racial discrimination. There are many cases in this area but I will focus on a recent case from the Ninth Circuit. The court held in Thinket Ink Information Resources, Inc. v. Sun Microsystems, Inc., No.02-16754 (9th Cir. May 17, 2004) that when a corporation has a racial identity it can then sue for discrimination. The corporation in question was a minority owned business. The case essentially holds that while a corporation has to protect its employee’s civil rights it can also sue for violation of the corporation’s civil rights. Of course, this right may not be available for companies under Zimbabwe law.

Perhaps Zim companies could sue in South Africa or maybe even in the US. The Alien Tort Claims Act (ATCA) is the new way to gain access to US courts. All you need to show is a violation of a norm of international law under the colour of state authority and you need to be an alien. See Kadic v. Karadzic Certainly freedom from racial discrimination, if that is what the Indigenisation law is, is a human right. The African Charter on Human Rights for Africa and the Convention on the Elimination of all forms of Racial Discrimination say so. The ATCA will be further defined by the decision in the Second Circuit Court of Appeals this year. The plaintiffs are the human rights organisation Khulumani Support Group who is suing multinational corporations operating in South Africa. If claimants are successful, there will be a new kind of corporate responsibility that multinational corporations will need to embrace and it will be distinctly political. Corporations will need to become more sensitive to government policies when they do business around the world. Just like affirmative action these new responsibilities will have benefits and burdens.

It just makes me wonder if some of this legal activity might develop precedents that are unexpected. If laws develop that ask corporations to act more like people in a global community then corporations might start asking for people rights as well.

Where does this leave the companies in Zimbabwe? While Americans are filing their tax forms before midnight on 15 April, companies in Zim will be filing some forms of their own. Discrimination is bad and bad things happen when there is a lack of equality. The Indigenisation law is here to stay and it might help to include a previously excluded population in the business of Zimbabwe. It might help train a new generation of skilled workers. Unfortunately, affirmative action programmes have never been that simple in the US, or elsewhere for that matter. In general, law, all law, often makes things much worse and lawsuits always do.