Khulumani: New directions, new implications

The Khulumani case has been through many dramatic reconfigurations and the latest chapter is no exception, writes GABRIELLA SACRAMONE-LUTZ.

In 2002, the Khulumani Support Group filed a lawsuit in New York seeking civil damages against multinational corporations that allegedly aided and abetted in crimes committed by the apartheid regime, including torture, extrajudicial killing, and denationalisation. This class action suit was brought to court in terms of the Alien Tort Claims Statute of 1789.

A New York district court initially rejected the claim that aiding and abetting liability exists under the Statute, but this ruling was overturned by the Second Circuit Court of Appeal and returned to the district court for further proceedings. In addition, the ruling reaffirmed that the Statute gives claimants the right to institute lawsuits in the United States for crimes committed anywhere in the world. The Statute’s jurisdiction is global – the victims, perpetrators and site of the violations may all be foreign.

The case was subsequently referred to the US Supreme Court, but due to potential conflicts of interests, four out of the nine justices recused themselves. The case then returned to the district court.

In April of 2009, the US Judge hearing the Khulumani suit issued a ruling that reduced the scope of the case, excusing many of the multinationals, but also paving the way for some Tort cases to continue. This development also nudged the case towards a settlement. In September, minister of justice and constitutional development Jeff Radebe wrote to the court in response, indicating government support for the ruling and a willingness to offer ‘counsel to the parties in pursuit of a settlement’.

The South African media, somewhat misleadingly, heralded this as a reversal from the stance of former president Thabo Mbeki’s administration on cases of this kind: that the case infringed on South African sovereignty, eclipsed the reconciliatory project of the Truth and Reconciliation Commission (TRC), and handed decision-making power to those without a stake in the country’s future.

Opposing viewpoints on the case have again recently come to light, following the submission of a joint amicus brief to the court by former minister Kader Asmal and a number of other professors of international law.

However, although Radebe’s letter was portrayed as an ‘about-face’, government’s adapted position in fact came in response to the narrowing of the claims, and does not endorse the original case in its entirety. The Mbeki administration refused to be a party to the litigation, as did the governments of the US and Switzerland, and the stance articulated in Radebe’s letter is not inconsistent with this position. Additionally, his letter makes clear reference to a settlement, hints of which have also appeared in the media.

Nonetheless, the ruling has been applauded by legal scholars for setting a clear precedent on Alien Tort Claims: Khulumani, and other cases can continue against companies that provided goods that aided in the perpetuation of human rights violations, while claims against multinationals that simply conducted business with the apartheid government were dismissed. This set a standard for the type of violations, and extent of involvement, prosecutable under the Statute.

However, despite this important achievement, the ruling also has implications for the Khulumani claimants. The reduced scope of the claim includes only five of the twenty-three companies included in the original suit: Daimler AG, Ford, General Motors, IBM and Rheinmetall. This drastic reduction means that any decision will no longer have as comprehensive an effect, but in turn, may mean that a settlement is more acceptable to plaintiffs who have lost the possibility of a more politically influential victory.

Further, at this point a rebuke to these companies may mean little, particularly where their reputations are already damaged. IBM’s assistance to the Nazi regime is extensively chronicled.[1] (An Alien Tort Claims case was brought against the company, but subsequently dropped). Daimler AG, along with other automakers, has suffered the throes of the economic recession.

The implications of the reduced case are vastly different, and a settlement will likely mean fewer political consequences, with no precedent on which to build further cases. Examined closely, it is easy to see how the decision makes the case more palatable to the South African government. Put simply, the stakes have been lowered.

Not to be completely denied, though, is the influence of the change in administration on this position. While government’s determined stance under the leadership of Mbeki appears coherent with his rebuke of neo-imperialism, early signs suggest that the Zuma administration may prove more pragmatic and consensus-driven.

Further, insofar as the approach to the Khulumani case reveals much about the views of government and political leadership towards the project of national reconciliation, it also reflects the ethos of the population that elected each administration to office. Government’s first communication to the US courts was in 2002, and it can be argued that eight years on, the reality of increased inequality and massive developmental challenges have convinced many in government that they cannot take sole responsibility for the lingering effects of apartheid, and moreover, that it alone will not be able to facilitate processes of national reconciliation, as Mbeki had originally asserted in those early letters.

The Khulumani case remains far from over, and its outcome – which has the potential provide powerful precedent upon which future cases will or will not stand – remains to be seen.

The impact of a settlement should not be under-estimated: behind the Khulumani case are 58,000 victims of apartheid-era human rights violations, about 74% of whom are unemployed. While not guaranteeing any further consequences for the business of the corporations involved, these effects may well be served through the markets, after almost a decade of bad publicity.

However, irrespective of the outcome of the case, the persistence of the Khulumani Support Group has already had far-reaching impact. Their efforts continue to bring the ongoing – and critical – need for justice and reparations to the fore. They also send a strong message to multi-national corporations about the responsibilities, ethics and consequences of doing business with governments that commit human rights abuses. An Alien Tort Statute case is now being brought against Shell for their involvement in the killing of Nigerian activist Ken Saro-Wiwa. These already constitute major victories for the South African and international human rights communities.

Gabriella Sacramone-Lutz is an independent political analyst and researcher.

[1] Black, Edwin. IBM and the Holocaust. 1st ed. Crown, 2001.

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