Editorial: Accountability arrives in Africa

By Jon Roe

Reversing their long-standing opposition, the South African government is now supporting civil action filed in the United States against several large corporations by the victims of the country’s brutal apartheid era laws. The lawsuit alleges the companies — including Ford, General Motors and IBM — knew the government used their products to violate the human rights of black citizens and assist in the violent suppression of protesters.

Though the suit is being filed under a nearly 200-year-old law, and there’s some controversy behind it being pursued at all, any action or settlement that makes companies think twice about dealing with brutally oppressive regimes should be lauded.

The newly elected administration of president Jacob Zuma threw their support behind the lawsuit after years of opposition by former president Thabo Mbeki, whose administration argued that the suit would have a chilling effect on much-needed foreign investment. For South Africa to oppose compensation of any sort for victims of apartheid is abysmal, and to do it for the sake of foreign investment is even worse. The wounds of apartheid are slowly healing and putting business ahead of the interests of wronged citizens can only hurt that process. Thankfully, Zuma saw this.

The civil suit is being filed under the Alien Tort Statute, a law enacted in 1789 that allows foreign citizens to file suit in American courts over international law violations. In the last 15 years, the law has primarily been used as a way for victims of human rights abuses to claim damages from U.S. companies. In June, Royal Dutch Shell, who denied any wrongdoing, settled a suit alleging the company was complicit in the executions of protesters carried out by the Nigerian government with a $15.5 million USD payment.

The victims in the South African case are apparently not interested in settling out of court, unlike in the Shell case, and are looking to pursue a ruling to establish a precedent. This could have wide-sweeping implications, but there are some difficulties with the case. The primary question is what constitutes knowledge on the part of the companies in how their products are being used. It remains to be seen how this will be handled in the lawsuit, but if it’s defined broadly and removes the option of willful ignorance many companies have when they deal in places such as Nigeria, is that really a bad thing? This is a lawsuit that pits the interests of large multinationals against those of the oppressed and abused in some of the worst countries in the world. A ruling which makes large multinationals tread more carefully, or makes it too difficult to deal in those trouble spots, can’t be a bad result.

The second problem with the suit is that, in a way, it forces companies to stand in place of offending governments and their officials. But to argue that the companies shouldn’t be held accountable for business deals they conducted with awful regimes because the regimes themselves should be brought to justice isn’t convincing. If the companies knew what the regimes were doing and continued to sell them the machinery to carry out these human rights violations, they are still responsible, whether or not the former governments are there to stand with them.

The plaintiffs were, at one point, seeking $20 billion USD in damages, now they aren’t even seeking a specified amount. But even if the victims do end up settling out of court, if the result is companies second-guessing their business dealings under abusive regimes, it will be a victory for human rights and accountability.