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.

Obama turning the US into Zimbabwe

Here is an entertaining link. It has some interesting quotes by US legislators concerning the US Economy and comparisons to Zimbabwe.

Very entertaining--
take with a nice glass of California Pinot Noir!!

http://fabiusmaximus.wordpress.com/2010/02/22/zimbawwe/

District 9 and the Oscars

I will have something more serious to write about shortly but I really need to discuss District 9 right now. LA and the Oscars are deeply, deeply flawed in a very fundamental way but movies are important in America and sometimes in the world at large as well.

I was very proud that District 9 achieved 4 nominations: Best Picture, Best Adapted Screenplay, Best Film Editing and Best Visual Effects. C'MON!!! How cool is that??

The camera panned across the audience and I saw Neill Blomkamp AND Sharlto Copley who played Wickus van de Merwe. They showed lots of clips from the film and it was glorious. I did think it unfair that it came up against Avatar in the visual effects category....it was just not meant to be.

I hope those guys went to a ton of great parties and had a blast on the red carpet. They deserved it.

I have not yet seen The Hurt Locker which won best picture (or Avatar..yikes!!!).
Getting nominated is cool enough for District 9. (I saw it 3 times!!)

Pretoria High Court registers SADC tribunal ruling

This past week the High Court of Couth Africa (North Gauteng High Court, Pretoria) issued an order that required the registration of the South African Development Community (SADC) Tribunal ruling against the Government of Zimbabwe on it’s land reform policy. This means that the white farmers will be able attach assets of the Government of Zimbabwe in satisfaction of the SADC Tribunal ruling.

This is issue is saturated with political issues, perhaps it not possible to discuss Southern Africa with out discussing those issues. On the most basic level, the registration of the SADC Tribunal decision opens up a channel for positive movement. Regardless of which side of the land reform debate you are on, this decision by the High Court opens a new, previously closed, avenue of action. At the very least it will be fascinating to observe what happens next.

By registering the SADC Tribunal ruling the High Court has contributed to the legitimisation of the Tribunal. This is neutral actually. Whether you like or dislike these tribunals as they resolve international disputes and the decisions they make matter. Sometimes the rulings only matter to the parties. In this case the decision might matter to more than just the parties. For a long time the SADC ruling was virtually ignored. That is a problem for every signatory to the SADC treaty. All of the organs of SADC need to be fully functioning. All the talk of how co-operation and integration are the key to development is just talk unless legitimacy is established.

Everyone can spill all the ink they want on how ‘rule of law’ is a defective idea of the Washington Consensus. Maybe, but I say, cowboy up and use that concept to your own benefit. These farmers did not like what happened to them and they have dedicated some time energy and money to seek justice.

The SA High Court simply did what all SADC members should have done and register the Tribunal ruling. Life has become complicated for everyone on the planet. Rules help us all. We know what to expect in the morning-traffic lights that work, people to be civil to one another, that our pay check will clear the bank and that our family is safe while we go about our day. This is not actually a western idea-it is universal. The SADC Tribunal gave the ruling that they gave. Good or bad it is the law now. Things may be dead in the water, so to speak, but if they are not things are about to get interesting.

Goldman still Sucks

I like the comic but the White House is completely complicit.

South African High Court and Zim Land Acquisition-Case Note

The North Gauteng High Court, Pretoria held in the matter of Von Abo v. Govt of the Republic of South Africa, et al 3106/07 decided 5/2/2010, that the Government and President of South Africa and the Ministers of Foreign Affairs, Trade and Industry and Justice and Constitutional Development are jointly and severally liable to pay the applicant Von Abo damages. These damages were for losses suffered as a result of the violation of his rights by the Government of Zimbabwe when they acquired his land.

This decision is a sequel to the main judgment decided in 2009. The main judgment provided that the Respondents, Government of SA and others, failed to protect the rights of a SA citizen in violation of the Constitution. Diplomatic protection for Von Abo was expected- was a constitutional right. In the main judgment the court ordered Respondents to remedy the Von Abo rights violation and report back to the court within 60 days of the main judgment what steps were taken to remedy the Von Abo situtation . Paragraph 4 and 5 of the main judgment are as follows:

4. The respondents are ordered to forthwith, an din any event within sixty days of the date of this order, take all necessary steps to have the applicant’s violation of his rights by the Government of Zimbabwe remedied.

5. The respondents are directed to report by way of affidavit to this court within 60 days of this order, what steps they have taken in respect of paragraph 4 above, and to provide a copy of such report to the applicant.

This case concerns only the court ordered report and nothing else. There was the matter of suing the President and the Government that had to be cleared up by the Constitutional Court. It was finally decided that the Government of South Africa and the Minister of Foreign Affairs were only obligated to comply with paragraph 5. No report was ever made by affidavit, as ordered by paragraph 5. Instead, one report was provided but found lacking by the court because it was signed not by the Respondent, but by someone on Respondents behalf. Clearly unacceptable to the court.

A report was not provided by the Minister of Foreign Affairs, as ordered, but by the Deputy Director-General in the Dept of Foreign Affairs. The court calls the failure of Respondents to comply with a court order contempt of court and in violation of the Constitution. Specifically, section 165(4) which provides that the organs of State must assist and protect the courts to ensure their effectiveness.

The court points out that respondents failed to file affidavits or explain their failure to file. The court also took issue with the fact that the one report that was provided was not by a Respondent but someone designated by the Minister of Foreign Affairs.

The court next turns to analysis of the report itself which is meant to explain what actions were taken by Respondents to remedy the situation of Von Abo. The report states that requests were made to the Zim Government to assist when the SA Embassy asks regarding SA farmers who are victims of illegal land occupation. The court concludes that this is not dealing with the matter properly. Furthermore, the court states that the Government of SA could have used the South African Development Community (SADC) Tribunal judgment to fortify their efforts in Zimbabwe. This did not happen.

The report provided by the Deputy Director-General states that they could not do more since Zimbabwe could not be stopped from its policy of land acquisition. The Von Abo court did not find this persuasive. The court explained that Respondents could apply diplomatic pressure and did not. In fact, Respondents were in the unique position of funding the Government of Zimbabwe so were perfectly situated to make efforts to change the situation at least for South African farmers. No help was provided.

This is just a case note and I am no expert on SA law...AT ALL. But I will try to follow all of these cases as they make their wasy through the SA court system. I have no real comment to make other than I enjoy the law when it is applied by the judiciary. It can be so beautiful. This case is political but the legal aspects appear narrow enough so that the court can hammer its point repeatedly and it is so beautiful to watch. It may be meaningless, I cannot say. But this court opinion is out there and that is all that can be done for now.

Tejas

The San Antonio River

The shrine at the Alamo





The Alamo

San Antonio, Texas is adorable. Everything is walkable. It has great food and drink
and it is very friendly.


Why Europeans (and others) avoid Texas is beyond me.
I mean Americans do manage to get to Paris and THAT can be a disagreeable city.


Prickly Pear Cactus Margarita!!