Minister’s Mbandla’s Amicus Curiae undermines international human rights agenda –

Minister's Mbandla's Amicus Curiae undermines international human rights agenda

Khulumani Support Group, the membership organisation of around 44,000 victims and survivors of apartheid-era gross human rights violations in South Africa, was assisted to bring the case to the appropriate court in New York in support of their demands for accountability and for redress. For thousands of victims, there remains little to celebrate in this year of the tenth anniversary of the country’s much-respected Truth and Reconciliation Commission.

Khulumani’s goal is to establish respect for a rule of law amongst corporations as juristic bodies to prevent recurrences of the harm that was done to ordinary people in South Africa under apartheid through the support and assistance of multinational corporations.

None of the 23 multinational corporations named in the Khulumani case, used the generous opportunities provided by the Truth and Reconciliation Commission to voluntarily acknowledge their complicity with the apartheid government; their role in helping to sustain the apartheid regime and their role in contributing to the harm caused to individuals. Instead most have claimed that they were merely “doing business”.

At the level of individual perpetrators in South Africa, the Truth and Reconciliation Commission received only 293 amnesty applications from former security agents, leaving a large pool of individuals eligible for prosecution. Against this background, the release this week of the special policy directives for the prosecution of apartheid-era political crimes for those who were either denied amnesty or who shunned the opportunity to apply for amnesty, raises serious concerns for victims and survivors. It is time to hold perpetrators to account, whether corporate or individual, if the prospects for reconciliation are not to be undermined and the gains of the transition are not to be reversed.

The Khulumani et al vs Barclays et al lawsuit operates in this context of seeking to extend a system of accountability to multinational corporations at a time in history where the greatest danger facing the citizens of the world is the subversion of the interests of the majority in the globalised economy to those of an elite who wield greater economic and political power than most governments in developing nations. These CEOs of these corporations can be seen to operate in “tight networks of people . . . to protect their own interests to the detriment of their public obligations”. (Sole) Given their power to affect the destiny of millions of the world’s people, it has become increasingly important to extend systems of accountability to the corporate world.

Victims and survivors declare that that past is in the present and that the only means of preventing the recurrence of human rights violations through the collusion of multinational corporations with illegitimate political regimes, is through enforcing the constitutional right of citizens to seek legal redress in any competent court.

South Africa’s much-admired Constitution provides for this right in Section 34 of the Bill of Rights on the matter of “Access to courts”. It states that “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” The Second Circuit Court of Appeals in New York is one such competent court that has the capacity to judge the case that the Khulumani Support Group lawyers have worked so hard to bring before its panel.

The Khulumani et al vs Barclays et al lawsuit neither hinders the goals and policies embodied by Truth and Reconciliation Commission nor discourages investments in South Africa. These allegations cannot withstand scrutiny.

In a century characterised by some of the greatest atrocities ever witnessed by the world, the Khulumani et al vs Barclays et al lawsuit, provides an important mechanism for reigning in the power of corporations over the majority of the world’s people.

It is not perpetrators who should be announcing that it is time to move on from the horrors of a past that continues to live in the present. It is victims who should announce that time. (Legum) Victims and survivors should be supported by their government in such an important endeavour.

The shameful submission of an Amicus Curiae brief by the present Minister of Justice, Honourable Brigitte Mabandla, has the potential to undermine the international human rights agenda and the extension of a rule of law to all persons and juristic bodies including corporations.

We call on this government to restore the hope of victims and survivors and to honour their contributions to the daily struggle for freedom and democracy in South Africa.

Issued by Khulumani Support Group

  • For comment, please contact Dr Marjorie Jobson, Chairperson of the Board of Khulumani Support Group +27 82 268 0223
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