REPARATION

REPARATION

Reparation refers to the need to repair the damage done to Africans and people of African descent by the slave trade, colonization and neo-colonization so that they could compete more effectively in the global context, reverse the prolonged history of underdevelopment and rejoin the train of development in the world.

This clearly identifies two categories of victims who can claim reparation or compensation: Africans and African Americans. It also identifies the harm suffered or committed during three periods: the Maafa a Kiswahili term for the transatlantic slave trade of Africans (16th – 19th centuries); colonization, i.e. exploitation and the political, cultural and economic domination of Africa by Western Europe (19th – 20th centuries) and neocolonization; the surreptitious economic and cultural domination of the former African colonies. As we can very well realize, this subject is so emotionally charged that we question ourselves how we can rationally and objectively deal with it.

However, like other research work that has been done on slavery and its effects on Africans and African Americans in contemporary society, it is possible to show, that science can very well accept the questioning of the facts it deals with, and that in these domains, scientific rigors, without becoming confused with them, this can very well go alongside emotion, revolt, the concern of justice and the desire to restore the dignity of those who were Slave victims. I elect to join the school of thought for the reparation of wasted human and natural resources that was pondered away by the Americans and Europeans. The call for reparation is justiciable and logically balanced, it breaks the chain of inequality and sets the road map for development. My argument will be strongly based on legal positions held and decided by all relevant international bodies on different kinds of reparation.

"It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form." (1)

Reparation is a principle of law that has existed for centuries, referring to the obligation of a wrongdoing party to redress the damage caused to the injured party. Under international law, "reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed."(2)

The right to reparation is a well-established principle of international law. The International Law Commission affirmed this principle in its 53rd Session when it adopted the draft articles on responsibility of States for internationally wrongful acts.(3) The right is also firmly embodied in international human rights treaties and declarative instruments (4) and has been further refined by the jurisprudence of a large number of international and regional courts, as well as other treaty bodies and complaints mechanisms.(5)

In 2005, the UN General Assembly adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law.(6) These Principles constitute a significant contribution to the codification of norms relating to the right to reparation for African countries who suffered Slavery and colonization.

Who can claim Reparation?

International human rights treaties and instruments provide that victims of international crimes have the right to seek and obtain effective remedies for the violation of their rights.(7) The Basic Principles and Guidelines on the Right to a Remedy and Reparation provide that the term victim includes those who have individually or collectively suffered harm, and may include the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.(8)

Until recently in criminal proceedings, the standing of victims to seek reparation was limited to the domestic sphere.(9) However, the Rome Statute of the International Criminal Court now recognises that victims of crimes under the jurisdiction of the Court may seek reparation and allows the Court to make orders directly against a convicted person to make reparations to them.(10)

In 2004, Lloyds of London was sued by the descendants of African slaves. The case was not successful.(11) In Jamaica in 2004, a coalition of Rastafari movement groups argued that European countries formerly involved in the slave trade, especially Britain, should pay 72.5 billion pounds sterling to resettle 500,000 Jamaican Rastafarians in Africa. The claim was rejected by the British government, which said it could not be held accountable for wrongs in past centuries. (12)

In 2007, Guyana called for European nations to pay reparations for the slave trade. (13)

In 2011, Antigua & Barbuda called for reparations at the United Nations, saying "that segregation and violence against people of African descent had impaired their capacity for advancement as nations, communities and individuals". (14)

In 2012, Jamaica revived its reparations commission, to consider the question of whether the country should seek an apology or reparations from Britain for its role in the slave trade. (12)

Also in 2012, the Barbados government established a 12-member Reparations Task Force, to be responsible for sustaining the local, regional and international momentum for reparations. (15, 16) Barbados is reportedly "currently leading the way in calling for reparations from former colonial powers for the injustices suffered by slaves and their families." (17)

In 2013, in the first of a series of lectures in Georgetown, Guyana, to commemorate the 250th anniversary of the 1763 Berbice Slave Revolt, Principal of the Cave Hill Campus of the University of the West Indies, Sir Hilary Beckles urged Caribbean Community (CARICOM) countries to emulate the position adopted by the Jews who were prosecuted during the Second World War and have since organised a Jewish reparations fund. (18, 19).

The underlining factor here is that African countries who suffered slavery and colonization deserve to be paid reparation for the wrongs done to her by the Americans and Europeans countries.

Forms of reparation

A common misconception is that reparation is synonymous with compensation. Although compensation is common, other forms of reparation include: restitution, rehabilitation, satisfaction and guarantees of non-repetition.(20)

· Restitution seeks to restore the victim to the situation that that would have existed had the crime not happened. This may include restoration of liberty, legal rights, social status, family life and citizenship; return to one's place of residence; and restoration of employment and return of property, transfer of technology.(21)

For the most heinous crimes, it is often impossible to restore victims to their original situation making other forms of reparation necessary:

· Compensation is understood to include any quanitifiable damage resulting from the crime, including "physical or mental harm, including pain, suffering and emotional distress; lost opportunities, including education; material damages and loss of earnings, including loss of earning potential; harm to reputation or dignity; and costs required for legal or expert assistance, medicines and medical services, and psychological and social services."(22)

· Rehabilitation is said to include medical and psychological care as well as legal and social services.(23)

· Satisfaction and guarantees of non-repetition include such individual and collective elements as revelation of the truth, public acknowledgment of the facts and acceptance of responsibility, prosecution of the perpetrators, search for the disappeared and identification of remains, the restoration of the dignity of victims through commemoration and other means, activities aimed at remembrance and education and at preventing the recurrence of similar crimes.(24)

The West is being asked to pay Africa $777 thousand billion within five years in reparation for enslaving Africans while colonizing the continent. The African World Reparations and Repatriation Truth Commission, also called for all international debt owed by Africa to be "unconditionally cancelled''. The Accra Declaration issued at the conference says that money will be demanded from ''all those nations of Western Europe and the Americas and institutions, who participated and benefited from the slave trade and colonialism''. The conference, co-chaired by Dr Hamet Maulana and Mrs Debra Kofie, announced plans to set up an international team of lawyers from Africa and the diaspora to pursue all legal means to collect the money. (25)

The group will also be contacting the International Court of Justice, as well as the United Nations and the Organization of African Unity for assistance.

Mrs Kofie told the BBC the reparation figure was based on the number of human lives lost to Africa during the slave-trade, as well as an assessment of the worth of the gold, diamonds and other minerals taken from the continent during colonial rule.

She says Africa's turn has come. "We are the only group that have not received reparations. The Jewish people have received reparations. The Native Americans have received reparations. The Korean comfort women and so-on and so forth," she said.

The declaration added that all those in the diaspora, who want to return and settle in Africa, should be allowed to do so and that those who enslaved and colonised Africa should provide seaworthy vessels and aircraft for such repatriation.

Perceptions of reparation

Given that African victims come from a diversity of backgrounds and experiences, Africans perceptions of reparations and the 'reparations process' are varied and multidimensional. Africans in the midst of conflict will not have time to think about 'reparations'. Cultural differences may also impact on perceptions of reparations. In some cultures, active participation in criminal proceedings may be essential whereas in others, the admission of guilt by the wrongdoer will be most important. In some contexts, the fact that European and American can never undo what was done or make adequate reparations may mitigate against reparations, whereas in others, the symbolic effect is seen as extremely beneficial.(26) The context of the violation may give rise to specific perceptions of what kind of reparation should take place. For example, a situation of massive population displacement and ethnic cleansing may necessitate a program for the return of refugees and displaced persons, and/or the other sustainable solutions for Africans.

Between 1450 and 1850, it is estimated that at least 12 million Africans and probably many more were shipped from Africa across the Atlantic Ocean, primarily to colonies in North America, South America, and the West Indies.

The United States has formally apologized for its participation in the slave trade.

A further 20 million slaves are estimated to have been exported to other parts of the world, in particular the Middle East and North Africa, over a similar time period.

Contrary to widespread belief, slavery is still practised in some parts of Africa, including Sudan and West Africa.

My humble position is that Africans deserve reparation and those country who benefited from this wicked trade and business should be forced to pay reparation to the Africans by Transferring technology to the Africans to meet up with the rest of the world.

[i]

1. [i] Permanent Court of Arbitration, Chorzow Factory Case (Ger. V. Pol.), (1928) P.C.I.J., Sr. A, No.17 at 29.

2. See Permanent Court of Arbitration, Chorzow Factory Case (Ger. V. Pol.), (1928) P.C.I.J., Sr. A, No.17, at 47 (September 13); International Court of Justice: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Merits 1986 ICJ Report, 14, 114 (June 27); Corfu Channel Case; (UK v. Albania); Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 184 ; Interpretation des traites de paix conclus avec la Bulgarie, la Hongrie et la Romanie, deuxieme phase, avis consultatif, C.I.J., Recueil, 1950, p. 228. See also Article 1 of the draft Articles on State Responsibility adopted by the International Law Commission in 2001: "Every internationally wrongful act of a State entails the international responsibility of that State. (UN Doc. A/CN.4/L.602/Rev.1, 26 July 2001" (ILC draft Articles on State Responsibility)).

3. See Report of the International Law Commission - 53rd session (23 April - 1 June and 2nd July - 10 August 2001), UN Doc. (A/56/10). Ibid., para 23.

4. For example, the Universal Declaration of Human Rights (Art. 8); the International Covenant on Civil and Political Rights (art.2 (3), art 9(5) and 14(6)); the International Convention on the Elimination of All Forms of Racial Discrimination (art 6); the Convention of the Rights of the Child (art. 39); the Convention against Torture and other Cruel Inhuman and Degrading Treatment (art. 14) and the Rome Statute for an International Criminal Court (art. 75). It has also figured in regional instruments, e.g. the European Convention on Human Rights (art 5(5), 13 and 41); the Inter-American Convention on Human Rights (arts 25, 68 and 63(1)); the African Charter on Human and Peoples' Rights (art. 21(2)). See also, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Adopted by General Assembly resolution 40/34 of 29 November 1985; Declaration on the Protection of all Persons from Enforced Disappearance (art 19), General Assembly resolution 47/133 of 18 December 19 92; Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (Principle 20), recommended by Economic and Social Council resolution 1989/65 of 24 May 1989; and Declaration on the Elimination of Violence against Women.

5. See, e.g. ruling of the Inter-American Court of Human Rights in the Velásquez Rodríguez Case, Serial C, No 4 (1989), par. 174 . See also Papamichalopoulos vs. Greece (Art. 50) E.C.H.R. Serial A, No 330-B (1995), p. 36..

6. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005 (Basic Principles).

7. See above n. 4.

8. Basic Principles, par. 8.

9. Reparations proceedings are common in civil law countries where claims for damages may be attached to criminal prosecutions. In common law countries, it is more typical for claims for damages to be sought separately through civil courts.

10. Rome Statute of the International Criminal Court, UN Doc. A/Conf. 183/9th of 17 July 1998, entry into force 1 July 2002, art. 75(2).

11. ^ Gavin Stamp, "Counting the cost of the slave trade", BBC News, 20 March 2007.

12. "Jamaicans Form Commission to Investigate Slavery Reparations from Britain". Associated Press. 1 November 2012.

13. "Guyana calls for reparations", BBC News, 27 March, 2007.

14. "Reparations should be made for African slave trade, Antigua and Barbuda tells UN", UN News Center, 24 September 2011.

15. "Barbados Takes Lead in Fight For Reparations for Slavery in the Caribbean", Atlanta Black Star, November 6, 2012.

16. Patrick Hunter, "CARICOM and reparations for slavery", Share, 20 February 2013.

17. Sanchez Manning, "Britain's colonial shame: Slave-owners given huge payouts after abolition", The Independent, 24 February 2013.

18. [http://www.jamaicaobserver.com/latestnews/UWI-principal-wants-CARICOM-to-seek-reparation-for-slavery#ixzz2Mqi9W08m "UWI principal wants CARICOM to seek reparation for slavery",Jamaica Observer, 12 February 2013.

19. Rony Best, "The Case for Reparations", The New York Carib News, 6 march 2013.

20. Basic Principles, par. 18.

21. Id, par. 19.