Saturday, June 24, 2017

Africa

"Educated" to Feel Inferior: Will Africa ever Catch Up?"

Bedford Nwabueze Umez, Ph.D.*

 

After reading my latest book, "Nigeria: Real Problems, Real Solutions,"  Dr. Nnanna Ukegbu, one of the most learned, enlightened and illustrious Nigerian thinkers, invited me for a talk (August 9, 2002) on a serious issue of common concern, namely, the apparent lack of progress in Nigeria and several African countries. Dr. Ukegbu, who is now completing a very powerful, thought-provoking book on African development, had this question to ask me: "Will African ever catch up?" After a brief pause, I answered him, "Yes, if and only if the African mind is liberated."

In this paper, I will briefly explain the relationship between development and liberated mind. Specifically, I will explain (a) how most of us, the Africans, were "educated" to feel inferior, (b) the terrible consequences of inferiority complex, i.e., low self-esteem, in Africa, especially in Nigeria, and (c) then present the ONLY powerful solution to revert this inferiority complex so that Africa can meaningfully grow and develop.

Although a perfect representation of African countries cannot be made using one country, I decided to focus on Nigeria to make my point. Nigeria is, in many aspects, a typical African country. It suffered slavery; it was subjected to colonial rule; it achieved political independence (1960) around the time so many African countries did; it is faced with the task of welding into a nation a variety of differing people. Besides, Nigeria is, by population, the largest African country.

"Educated" to Feel Inferior: How?

It was never easy for me learning in Nigeria. My parents, who never attended any school due to poverty, could neither read nor write. I lost my father at the age of three. To make the matters worse, those I looked up to, namely, my mentors, educators, and leaders were busy teaching me and other youths, probably inadvertently, to feel inferior and remain inferior. Essentially, I was taught, just as many youths in Nigeria are being taught today, to feel inferior and develop low self-esteem. Here are few examples. I was thoughtlessly taught (and children are still being thoughtlessly taught today), that "oyibo bu ndi muo," (white men are naturally spirits)," "oyibo bu agbara," (white men are wizards by nature), and "America ilu oba" (which suggests that white man's country is naturally the land of kings). Similar phrases such as "dan bature," (which implies that white men are by nature civilized), and "or buter" (which symbolizes the natural lead of white men) are very common all over Nigeria.

I was thoughtlessly taught (as children are still being thoughtlessly taught today) that almost anything "black" is inherently evil. In fact, to our "educators," it is perfectly okay to use the word, "black" (the ascribed name to people with African decent), to describe evil. In accordance with this teaching, a bad person is the "black sheep of the family," and should be "black listed." In accordance with this teaching, illegal market is "black market" (as if only black people do business in such market). In according with this teaching, Satan (no one has ever seen) is "black" in color. In fact, to our "educated" teachers, frequent use of "black" to describe evil demonstrates a mastery of the "Queen's English," deserving an "A" in English essay composition. What an education! It is a pity!

Indeed, Nigerian African children and the general public are being thought, directly or indirectly, self-hatred and how to develop a sense of low self-esteem. Without question, there are deadly consequences resulting from this kind of miseducation, and to them, I now turn.

"Educated" to Feel Inferior:" The Grave Consequences

We often hear that "the mind is a terrible thing to waste." I must add that the mind is a terrible thing to pollute. The minds of so many African children and that of the general public have been grossly polluted and destroyed by a powerful force largely unseen by naked eyes. That powerful force is inferiority complex (also called "mental slavery"). Here is a brief illustration of the destruction caused by inferiority complex/lack of self-confidence in Africa and among Africans:

Let us present an African medical doctor and a nonAfrican medical doctor to a sick African and ask him to choose the doctor to treat him. You are right, most likely he will choose the nonAfrican doctor. Why? Because he has been miseducated to believe that by nature white men are "ndi muo," "dan bature," and "agbara."

Invite an African to two meetings - one called by Africans and the other summoned by nonAfricans. You are right again, that African, all things being equal, will attend the meeting called by nonAfricans on time and attend the one summoned by his fellow Africans anytime he wants. Why? He dare not offend "ndi muo" by attending his meeting late. Notice that this "selective punctuality" on the part of so many Africans, particularly Nigerians, is what passive thinkers call "African time" (or "colored people time," in American context). To us at LAM, Liberating African Mind [www.LiberateAfrica.org], there is nothing like "African time." "African time is nothing other than "selective punctuality" ROOTED in inferiority complex.

By comparing the leadership styles of African leaders and nonAfrican leaders, one also observes another handiwork of inferiority complex/lack of self-confidence. Specifically, one notices that while nonAfrican leaders wisely refuse to invest their countries' money and resources in Africa, by practicing "charity begins at home," most African leaders are very proud to invest African money and resources in nonAfrican countries. Why? In their miseducated minds, Africa is "unsafe heaven," while "America ilu oba" - the safe heaven. What a lack of self-confidence! What a leadership! It is a pity!

The bottom line is that a polluted African mind accepts that Africans are, by nature, normal human beings, while nonAfricans are "ndi muo." A polluted African mind believes that nonAfricans are "divinely" chosen to live in "ilu oba," the "safe heavens," while Africans are "divinely" relegated to "unsafe heavens." A polluted African mind does not know that "ndi muo," "agbara," "dan bature," and "ilu oba" are products of tireless research engineered by true compatriot leaders and elite. In fact, a polluted African mind does not know that George Washington, the first President of the US, did not have, for instance, Space Exploration Program. Nigerians, for instance, must know that the reason for lack of so many "ndi muo," "agbara" and "ilu oba," in Nigeria is that so many Nigerian leaders rob their own people only to deposit the loot in "ilu oba." As such, the money that could have been used to produce "ndi muo," "dan bature," "or buter," "agbara" and "ilu oba" in Nigeria is senselessly siphoned out of Nigeria. African children have been repeatedly told lies, and the liars never, for one day, reflected upon the horrible consequences of their lies. They never realize that if a lie were told repeatedly, sooner or later some people would start believing it to be true. Just as a determined and concerted effort to tell a child that he is stupid is likely to get that child thinking and acting stupid, "educating" African children to develop low self-esteem and feel inferior has produced so many Africans who have, consciously or unconsciously, accepted that they are ordinary humans while nonAfricans are "ndi muo," "agbara," and "dan bature," divinely planted in "ilu oba."

The Solution

Active thinkers know that pollution of African mind, i.e., miseducating Africans to develop a sense of low self-esteem, has produced and continues to produce terrible consequences in Africa and among Africans. It is not normal for people to turn against themselves; it is not normal for leaders and elite to turn against their own people. Now is the time for African leaders and elite to start asking WHY things are the way they are in Africa instead of telling everyone HOW terrible things are. By asking WHY, solutions will naturally emerge. For instance, questions similar to those below will help move Nigeria forward:

Is there a relationship between research and "ndi muo?" Is there a relationship between research and "agbara?" Is there a relationship between research and "dan bature?" Is there a relationship between research and "ilu oba?" Is there a relationship between the legacies of slave trade and colonialism (i.e., slave and colonial mentalities) and the robbery of Nigeria by a substantial number of its leaders only to deposit the loot abroad? Is there a relationship between the robbery of Nigeria by most of its leaders only to invest the loot abroad and high unemployment rate in Nigeria? Is there a relationship between high unemployment rate in Nigeria and mass exodus of Nigerians to foreign countries? Is there a relationship between investing Nigerian money abroad and growth in negative developments in Nigeria, e.g., corruption, mortality rate, "419," armed robbery?

My fellow Africans, PRACTICAL answers to serious questions like those above will definitely produce "ndi muo," "dan bature," and "agbara" in Africa; in fact, they will produce AGAIN the class of African "ndi muo," "dan bature," and "agbara" who built the first known skyscrapers - the pyramids, and developed the first means of written communications, the hieroglyphic writings, long before the slave trade and colonialism. Nigerian children, for instance, cannot become "ndi muo" and "agbara" by miracle if their leaders continue to neglect education. In fact, "agbara," "ndi muo" and "ilu oba," will not emerge in Nigeria by miracle when teachers are being starved, libraries empty, research thoughtlessly abandoned, and universities senselessly shutdown for several months each year due to strikes. [Note: I have appealed, and will continue to appeal, to Nigerian government to summon, without further delay, series of National Economic Summits to discuss the terrible consequences of looting Nigerian treasury and investing the loot abroad, and start, on a collective level, to invest Nigerian money in Nigeria as "ndi muo" leaders and elite are doing in their own countries.]

Conclusion

African youths must be told the truth, and that truth is that what makes white men "ndi muo," "agbara," and "dan bature," is nothing other than tireless research, and with massive investment of African money in Africa by African leaders and elite, Africa will definitely produce "ndi muo" and "agbara" in large quantity as it once produced long before slavery and colonialism. Furthermore, African leaders and educators must stop using "black" as a symbol for evil and start teaching their children that black is beautiful just as any color.

All told, "Africa will can catch up" if and when African mind is liberated, for a liberated mind is a thinking mind that has the foresight to produce "ndi muo," "dan bature," "or buter,' and "agbara," and make his country "ilu oba."

--------------

*Dr. Umez is a Professor of American Government, Lee College, Baytown, Texas. His latest book, "Nigeria: Real Problems, Real Solutions," is now in use in several Nigerian universities. For more details about the book, kindly visit http://nigeria.liberateafrica.com 

 

Umez is the Founder and the Administrator of LAM, Liberating African Mind, http://www.LiberateAfrica.org Phone: 281-425-6368. 

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

 **This paper was presented/distributed at the 8th annual Convention of the World Igbo Congress, Houston, USA, August 29-September 31, 2002.

Prospects of an African Court of Human Rights

Yemi Akinseye-George

excerpted from: Yemi Akinseye-George, New Trends in African Human Rights Law: Prospects of an African Court of Human Rights, 10 University of Miami International and Comparative Law Review 159-175, 168-170 (2001-2002) (55 footnotes)

 

Notwithstanding its defects (and they are many), the African Charter and the African Commission have had some important beneficial effects on the domestic law and practice relating to human and peoples' rights in several African countries.

First, the Charter has positively impacted (albeit indirectly) the development of constitutional law with particular reference to human rights. The last decade has witnessed the adoption of new constitutions that incorporate bill of rights in a manner similar to those contained in the African Charter. The South African Bill of Rights, for instance, guarantees socio-economic rights such as the right to education. Similarly, Malawi and Namibia have adopted new constitutional pacts which show a commitment to the recognition and protection of human rights as enunciated in the African Charter and other international human rights instruments. These new bills of human rights differ from those of the immediate post colonial era in that, not only are they justiciable, but they also reflect changed political realities and on- going democratic struggles. As Maluwa observed, "The common theme running through all these changes has been the attempt to institute political pluralism and democratic rule in place of single-party dictatorships and autocratic oligarchies that had become the political order of the day in all but a handful of African states, and to build a political culture founded on a conception of human rights now taken for granted in the more established democracies."

Also, some African countries have incorporated the Charter into domestic law, thus facilitating its enforcement by domestic courts. In Nigeria for instance, the Charter was incorporated through the African Charter (Ratification and Enforcement) Act cap 10, Laws of the Federation of Nigeria, 1990. Consequently, Nigerian lawyers frequently cite the provisions of the Charter to support human rights actions in domestic courts. In the case of Abacha v. Fawehinmi, the Nigerian Supreme Court upheld a decision of the Court of Appeals on the superiority of the African Charter to domestic legislation. The Court, however, rejected an argument that the Charter was superior to the national constitution of the country.

The African Charter has also had some positive political impact in African countries. Nigeria has a good record of compliance with decisions of the African Commission. The few cases of non-compliance are exceptional. In fact, African countries often respond with less enthusiasm toward United Nations human rights mechanisms. They regard the African human rights system as "our own" while often viewing the United Nations system as foreign. It is believed that the Nigerian military government might have executed some Zango Kataf activists who were sentenced to death by a tribunal, but for the intervention of the African Commission. The Chairman of the Commission had written to the Nigerian Government urging it to postpone the planned execution of the activists pending the determination of their petition by the Commission. The government seems to have complied.

Again in Katangese Peoples' Congress v. Zaire, although the Commission did not accept the claim of the people of Katanga to 'self- determination in a manner that would have recognized their claim to secede from Zaire, the government was held to be under an obligation to recognize the peoples' right to their indigenous culture and language.

Perhaps the most profound impact of the African human rights system on domestic law has been in the area of civil society empowerment. Before the establishment of the African Commission, African human rights NGOs used to work only with NGOs based in Europe and America. There was little interaction among African NGOs. However, the Charter, in its establishment of the Commission, has created a platform for NGOs to meet twice every year to exchange ideas. African NGOs with observer status at the African Commission are allowed to make submissions at the sessions of the Commission. During the military era, Nigerian NGOs learned a lot from South African NGOs through this platform. The African NGOs now have what is called the Civil Society Forum at the Summit of the Heads of State of OAU (now African Union). It is the work of the NGOs (African and non-African) that gave impetus to the emergence of the additional protocols of the African Charter including that of the African Court. The NGOs forum constituted a powerful lobbying group in convincing African leaders about the need, not only for an African Court but also for an African Union. The following section considers these new features of the African human rights system.

African Courts and Human Rights

 Mirna E. Adjami

abstracted from: Mirna E. Adjami, African Courts, International Law, and Comparative Case Law: Chimera or Emerging Human Rights Jurisprudence?, 24 Michigan Journal of International Law 103-167, 103-108 (Fall 2002) (324 Footnotes)

State collapse, humanitarian crisis, and war are the faces of Africa that the world sees today. Lost in the tide of dark images are incremental steps for the protection of human rights. In the most dysfunctional of African countries, the skeletons of State institutions still stand. Some judiciaries have even started to engage in a progressive and sophisticated discussion of international human rights norms.

Member States of the Organization of African Unity (OAU) formalized their rhetorical commitment to the promotion and protection of human rights with the adoption of the African Charter of Human and Peoples' Rights in 1981. Since the Charter's signing, critics have disparaged the African human rights system for its failure to establish a court that would safeguard and enforce the rights guaranteed in the Charter. In 1994, the OAU began the process of establishing an African Court of Human and Peoples' Rights. Given the lackluster performance of the African Charter's primary guardian institution, the African Commission, many commentators believed that the time had not yet come for the establishment of a court.

Misgivings aside, the OAU adopted the Draft Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights in June 1998. Since then, the Draft Protocol and the proposed African Court have been the focus of scrutiny by scholars of the African regional human rights system. The proposed African Court has also captured the attention of international law scholars analyzing the proliferation of international courts and the effect of this phenomenon on international law.

Though the potential creation of a supranational human rights court has brought international attention to the African human rights system, international law and human rights scholars rarely turn to African examples when studying the domesticapplication of international human rights norms. This Article seeks to fill that gap by analyzing cases from several Anglophone common law countries in sub-Saharan Africa that invoke international law and comparative case law as interpretive support in their national fundamental rights jurisprudence.

Part I of this Article develops the conceptual framework for the examination of these cases by outlining theories of national judicial enforcement of human rights in Africa. First, it explores the technicalities of the relationship between international law and municipal law and shows how surprising the use of international sources is given their nonbinding status in domestic legal systems. It then traces the trend toward human rights constitutionalism through the post-independence creation of justiciable bills of rights. This Part proceeds with an examination of the debate between universalism and particularism of human rights in the African context and concludes with an overview of the role and responsibility of African judiciaries in enforcing human rights.

It is in this context that Part II examines selected cases from Botswana, Namibia, Nigeria, South Africa, Tanzania, Zambia, and Zimbabwe that invoke international law and comparative case law. The cases discussed here were chosen because they highlight several distinct modes of interpretation. Part II first examines how African courts invoke international sources for support in adopting a broad policy of constitutional interpretation. It then explores how courts have relied on international sources in determining the substantive scope of fundamental rights, focusing on cases concerning corporal and capital punishment under constitutional provisions guaranteeing the freedom from "inhuman and degrading punishment." Part II concludes with a discussion of the tensions between international norms, the exercise of judicial license, and African traditions.

Researching African case law is a true challenge. Most African judiciaries function on the scarcest of financial resources. In these circumstances, compiling cases in law reports is the last priority. As such, most national decisions in African countries remain unpublished, and those that are printed in reporters are still difficult to access. Nevertheless some African States do publish quasi-regular law reports. Most of these regular reports are from Southern African countries or African Commonwealth countries. Given the irregularity of the publication of case law, any comprehensive search for African case law is unscientific and incomplete. Consequently, the cases examined in Part II were selected from a small subsection of national cases that were discovered that draw on international and comparative law in their fundamental rights jurisprudence.

This Article uses the shorthand "international sources" to refer to the full range of international authorities that these African courts reference in their decisions. These sources include international human rights instruments and decisions of international tribunals. Additionally, the courts rely on comparative jurisprudence, drawing authority from other common law countries, particularly from members of the Commonwealth.

By examining these judicial decisions this Article seeks to highlight the potential of the African State, through the judiciary, to play a positive role as an enforcer and protector of human rights at the national level. It takes this position not with the na�ve belief that the judicial protection of human rights can substitute for the grassroots development of a human rights culture or the consciousself-restraint of other branches of government in complying with human rights obligations, but rather with the view that the judiciaries can and do play a pivotal role in developing a normative climate in which such developments can occur.

This Article, therefore, does not address how the political climate of a country limits, even undermines, the role of judiciaries in African States. Most sobering is the reality that many of the countries whose jurisprudence is examined in this Article do not respect the rule of law. Their judiciaries are also not fully independent. Authoritarian governments have intervened to overturn progressive court decisions on human rights issues by fiat or have reigned in the judiciaries when the judges have been deemed to exercise too much independence.

The decisions examined in this Article illustrate how African courts have used international law and comparative case law as interpretive tools in their domestic rights jurisprudence. Even within the context of repressive regimes and dysfunctional States, and despite the challenges to the legitimacy of human rights in the African context, there exists the potential for the indigenous judicial acceptance of international human rights norms that can contribute to the expansion of a global human rights jurisprudence.

. Visiting Research Scholar, Ralph Bunche Institute for International Studies, The Graduate Center at The City University of New York. J.D., Harvard Law School, 2000, B.A., Brown University, 1996.

[1]. The African Charter on Human and Peoples' Rights, opened for signature June 21, 1981, OAU Doc. CAB/LEG/67/3/Rev.5 (1981), reprinted in 21 I.L.M. 59 (1982) [hereinafter African Charter].

Should Europe Pay Reparations to Africa for Colonialism and Slavery?

 Ryan Michael Spitzer

excerpted from: Holocaust: Should Europe Pay Reparations to Africa for Colonialism and Slavery? , 35 Vanderbilt Journal of Transnational Law 1313-1346, 1340-1347 (October, 2002) (263 Footnotes) (Student Note)


A. Prohibition of Slavery as Jus Cogens International Law

Any discussion of the prospect of African reparations must necessarily begin with an assessment of the legal status of the institutions of slavery and colonization. As discussed earlier, slavery has been rejected by the United States and the international community for over seventy-five years. During that time, the prohibition has been sufficiently incorporated into the customary international law to be fairly characterized as a jus cogens international law of human rights. The rejection of colonialism has also been fully incorporated into customary international law, although its claim to jus cogens status may be affirmed less vigorously within the international community than that of slavery. As a result of the universal condemnation of slavery, colonialism, genocide, and war crimes, states generally possess universal jurisdiction to define and punish violations of those basic rights. However, as a possible lingering effect of the earlier international law of near universal foreign immunity, courts remain reluctant to review the actions of foreign states, particularly when a significant amount of time has lapsed.


B. African Reparations Under the Foreign Sovereign Immunities Act

One alternative is to bring an action in a U.S. court for violation of the international law of human rights against those countries or companies that perpetrated slavery and colonization against a state in Africa. Courts in the United States can only exercise jurisdiction in cases involving international law if they fall within one of the exceptions to the Foreign Sovereign Immunities Act (FSIA). The institution of slavery is arguably within the exception to the FSIA for commercial activity. Although the Hwang court held that operation of brothels by the Japanese government was not a commercial activity, that case is distinguishable from the institution of slavery. In the case of the Imperial Army of Japan, the brothels operated primarily for the purpose of satisfying the sexual needs of the troops in order to further the military objectives of the Empire. In the case of European conquest of the African states, however, the institution of slavery and the conquest and colonization itself was a means of furthering the commercial interests in labor and resources of the European empires. The task of establishing slavery as a commercial activity exception to the FSIA is eased to the extent that African states can demonstrate that European governments have coordinated their efforts with private shipping, mining, and agricultural businesses to that end.

Additionally, African states can make a colorable argument that the European powers and the United States have impliedly or explicitly waived sovereign immunity as it applies to events before 1952 by imposing retroactive application of the FSIA and reparations generally to Axis Powers after World War II. To the extent that those countries have held Germany accountable for reparations to Jewish victims of the Holocaust, African states could argue that the same countries have exposed themselves to accountability for their own misdeeds. This argument will necessarily run afoul of the U.S. Supreme Court's concern for ex post facto prosecution. Surmounting this obstacle will hinge upon the ability of the African states to characterize the jus cogens status of the international human rights law relating to slavery as a transcendent truth that should have been recognized by the slave-trading states during the time of slavery. This argument will necessarily take on a tone similar to the criminal law concept that ignorance of the law is no defense. The African states could argue that the slave-trading states can be held liable for their actions even if they believed they were acting within the norms of international law at the time. This position can be fortified by pointing to the Swiss Banks and German companies that have been held accountable for their collusion with the Nazis, although they were acting within the bounds of international law at the time.


C. African Reparations Under the Alien Tort Claims Act

Another alternative is to file a suit for reparations in the United States under the Alien Tort Claims Act (ATCA). The primary difficulty with this avenue of slavery reparations is the ten-year statute of limitations derived from the Torture Victim Protection Act (TVPA). African states could argue that the statute of limitations was tolled by the delayed development of a cause of action in international law. This argument reflects the condition of customary international law that is formulated and developed according to the evolving conception of human rights within the international community. The African states would argue that a cause of action did not exist and that, therefore, the statute of limitations did not begin to run until the concept of the prohibition of slavery as a facet of the jus cogens body of international law reached a sufficient level of general acceptance. This argument is, of course, susceptible to the contention that a state cannot be liable under a cause of action until that cause of action actually exists.

Alternatively, the African states could argue that the statute of limitations was equitably tolled by the refusal of the slave-trading states to recognize the jus cogens status of the prohibition of slavery. This argument suggests that the continued practice of slavery until the end of the nineteenth century and the survival of colonialism into the twentieth century represent a fraudulent misrepresentation of the true nature of human rights upon the international community by slave-trading states. By employing this argument, the African states place the slave-trading states in a "catch-22" scenario. From one perspective, the slave-trading states' continued insistence that slavery is not a transcendent evil represents a continuation of that fraud on the international community. However, acceptance of the freedom from slavery as a universal right extending back through time opens the slave-trading states to the same responsibility for their actions. Additionally, African states that have remained in a state of tutelage, as described by Judge Ammoun in Security Council Resolution 276, might argue that their subordinate status on the world stage entitles them to equitable tolling of their causes of action.

At the time of publication for this Note, a class action complaint was initiated in federal district court that will present this equitable tolling argument in the context of reparations for African-Americans. The suit was filed against four companies in the United States that allegedly participated in the slave trade. The first count of that action alleges conspiracy by the companies and asserts that they acted individually and in concert with their industry groups to profit from uncompensated labor derived from slavery. The second count demands the production of records from the period of slave trading. The plaintiff class asserts that the defendants knew or should have known of the existence of these records and that the defendants should be required to produce them. The third count asserts that the defendants committed human rights violations by enslaving and persecuting the ancestors of the African American class members. Counts four and five allege conversion and unjust enrichment, respectively, for the failure by the defendant companies to compensate the enslaved ancestors of the plaintiff class for their labor. The complaint asserts that the general lack of reliable shipping records from the period, the unwillingness of companies to release their records, and the reluctance on the part of Congress to address the issue of reparations justify the delay by the plaintiff class in bringing this action. Arguably, the plaintiffs should not be made to suffer because of the lack of diligence in record keeping and reluctance in producing those records by the defendant companies.


D. African Reparations and the Nonjusticiable Question Doctrine

Whether African states pursue slavery reparations under international law by way of the FSIA, or as a tort under the ATCA, they will still have to contend with the nonjusticiable question doctrine. First and foremost, the African states should argue that the slave-trading states are completely unwilling to negotiate or consider any form of compensation or reparations by legislative or executive means. The African states should point to the overwhelming size of the injustice perpetrated over centuries of colonial domination and enslavement as a dual indicator of both the reason why treaty settlement is impossible and why judicial remedy is essential. The African states should argue that the debt is so great that slave-trading states will never give repayment an adequate consideration.

For the same reason, however, African states should argue that it is imperative that some organ of government address the issue. Judicial resolution of the reparation issue is necessary because treaty or legislative action by the other branches of Western governments is unlikely. To strengthen this argument, the African states should actively pursue settlements by treaty or U.N. resolution. On the one hand, the potential for litigation may help the African states achieve their primary objectives of debt forgiveness and a formal apology through international agreement. On the other hand, the failure to reach such an agreement will fortify the assertion that diplomatic resolution is impossible.


E. Adequate Evidence to Document the African Injury

Underlying the issue of the nonjusticiable question doctrine and of litigation generally is the ability of the African states to adequately document the injuries sustained from centuries of slavery and colonization. Not only must the African states locate those companies that profited from the slave trade that are still in existence, but they must also obtain whatever documentation may still exist of the numbers and origins of slaves transported to the New World. Obviously, slave traders and slave owners in the new world would not have kept detailed records of the identities and origins of their property. Even if such records did exist, they most likely would not have withstood the passage of time. However, the African states should argue that equitable doctrines should prevent the slave-trading states from continuing to prosper from their lack of diligent record keeping. At the very least, the African states could pursue their objective of debt forgiveness by claiming that the accumulated national debts of their countries is a rough approximation of the damage sustained at the hands of Imperial Europe.


F. The Impact of Moral Outrage on African Reparations

In assessing the potential for slavery reparations, the impact of international moral outrage on the success of Holocaust reparations should not be overlooked. For that reason, the likelihood of reparations for African states may be expected to be directly proportional to its similarity with the Holocaust situation. On its face, it appears that the Africans have suffered to a similar degree under slavery and colonization as did the Jews under the Nazis. Certainly, the dual horrors of slavery and colonization oppressed and subjugated a comparable number of persons as the Nazi Holocaust. The duration of that suffering was also far greater that the six years of World War II. Therefore, the carnage of slavery and colonization can be fairly characterized as an African Holocaust.

However, there may be a fundamental difference in the lack of intent to harm the African people in the same way the Nazis intended to harm the Jews. There were certainly legitimate political and economic reasons for the countries in the West to engage in colonization. No European country could afford to withdraw unilaterally from the race to colonize, or fail to utilize fully new colonies through slave labor without sacrificing its own security at home. It is much more difficult for courts or countries to accept an assignment of moral culpability when there is no clear evidence of malice. At most, the colonial powers are guilty of recklessly disregarding the interests of the African states when pursuing their own survival.

Likewise, a significant difference exists between the Allied Powers laying blame on a handful of surviving Nazi leaders and laying blame on generations of their own ancestors. This point helps to illustrate precisely why the reparations issue, particularly in a courtroom setting, tends to exaggerate tensions. If the issue was raised entirely in a political setting, the West would have room to maneuver. It could empathize with the descendants of former colonial subjects and propose measures to offset the lingering effects of colonization without necessarily making a formal apology or publicly accepting blame. Similarly, proponents of the reparations movement could obtain the economic relief they seek in the form of debt forgiveness with much less opposition from the West, assuming African states forego a formal apology and acknowledgment of wrongdoing by European nations. By keeping their options open in treaty negotiations, the Western and African states can reduce tensions and concentrate on a realistic evaluation of the merits of the reparation claims and the secondary benefits of, for instance, a stabilized African market for European goods.

However, when the issue is presented in the form of litigation, the stakes are raised. Even though the parties can still negotiate a settlement, any settlement is, at least in the eyes of the observing public, both an admission of responsibility and an acknowledgement of the moral legitimacy of the reparations cause in proportion to the amount of the settlement. In litigation, the parties are engaged in a type of formalized battle that removes political alternatives. The motivation to fight for the cause itself and to win a moral victory in the form of a formal apology is more likely to move to the forefront in litigation. Likewise, the slave-trading states will be encouraged to avoid an apology at all costs in order to prevent any admission of guilt.The net effect is that each side will be more likely to be consumed by the desire to hold the moral high ground, or to obtain a perceived moral victory or vindication at the expense of the real objectives. For the African states, there is a greater risk that tempers will flare, as they did at the World Conference Against Racism. As a result, they will not receive the debt forgiveness they so desperately need. The West, of course, wants to put the entire issue to rest, but not at the price of its dignity and cultural heritage. England, for instance, even in its post-colonial state, is not prepared to sacrifice the legacy of the British Empire because of the nostalgic sentiments and feelings of national identity that underlie the retention of its monarchy. Similarly, the United States has reason to fear that a settlement with African states regarding slavery could open the floodgates to reparation actions by African American descendents of former slaves in the United States.

There may be some very good arguments for why the West should not be held responsible for colonization and slavery. Of course, no Western democracy that considers itself to be morally sophisticated would ever make such arguments. An open defense of slavery would have the same public consequences as a defense of the Nazis. However, it is not entirely clear that slavery or colonization is a transcendent moral evil comparable to the extermination of the Jews, for which all people at all times should be held accountable. Slavery was a thriving institution long before the United States or the Roman Catholic Church existed. It did not become morally reprehensible until we, as a civilization, decided it was morally reprehensible. In the United States, that recognition of the reprehensibility of slavery took four bloody years of Civil War and a constitutional amendment. The remnants of colonization lasted even longer.


IX. Conclusion

If the international community chooses to assign moral culpability to the West for colonization and slavery, then that is its prerogative. However, perhaps that choice should be recognized as just that, a choice. The international community may be better served if it casts off any illusions it has about an overarching, permanent moral framework that applies equally to all wrongdoers at all times. The recognition of the international law of human rights as an evolving moral framework may help European and African states alike to set aside the issue of blame and apology for slavery in order to concentrate on the continuing plight of the African continent and the strained relations between nations.

In discussing the potential for African reparations, lasting peace must not be forgotten as the ultimate goal. Although it is feasible to shape the dynamic international law to support or deny reparations for slavery and colonization, this must not be done in a way that inspires lingering resentment. In the end, it is that lingering resentment that has created this confrontation. The underlying moral sentiments must be recognized and openly discussed to reach a final peace that is acceptable to everyone involved. Otherwise, this problem will arise again in the future.

[a1]. The Author's use of the term "African Holocaust" is not in any way intended to discount the importance of the Jewish Holocaust. In this instance, the Author uses the term to simultaneously recognize the extent of African suffering during the slave trade, and to signal to the reader that a comparison of the two genocidal events will comprise a significant part of this Note.

At the time of publication for this Note, the authors of four previous law review articles used the term "African Holocaust." See Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 40 B.C. L. Rev. 477 (1998); El-Obaid Ahmed El-Obaid & Kwando Appiagyei-Atua, Human Rights In Africa--A New Perspective On Linking The Past To The Present, 41 McGill L.J. 819 (1996); Tuneen E. Chisolm, Sweep Around Your Own Front Door: Examining the Argument For Legislative African American Reparations, 147 U. Pa. L. Rev. 677 (1999); David Abraham & Kimberly A. McCoy, Dealing With Histories of Oppression: Black And Jewish Reactions To Passivity And Collaboration In William Styron's Confessions of Nat Turner And Hannah Arendt's Eichmann In Jerusalem, 2 Rutgers Race & L. Rev. 87 (2000).

[aa1]. J.D. candidate 2003, Vanderbilt University. 

The African Union and the New Partnership for Africa's Development

 Nsongurua J. Udombana

excerpted from:  Nsongurua J. Udombana, the Unfinished Business: Conflicts, the African Union and the New Partnership for Africa's Development, 35 George Washington International Law Review 55 - 106, 55-58,106-106 (2003) (319 Footnotes Omitted)

[T]here are moments when I feel that we are all trapped in a mammoth factory known as the African continent, where all the machinery appears to have gone out of control all at once. No sooner do you fix the levers than the pistons turn hyperactive in another part of the factory, then the conveyor belt snaps and knocks out the foreman, the boiler erupts and next the whirling blades of the cooling fans lose one of their members which flies off and decapitate the leader of the team of would-be investors--the last hope of resuscitating the works. That, alas, is the story of our human factory on this continent.

I. Introduction

The Organization of African Unity (OAU or Organization) is dead. The final rites of passage were performed at the last summit of the Assembly of Heads of State and Government of the OAU in South Africa from July 9-10, 2002. Another baby has been born to take the OAU's place--the African Union (AU). A vague anticipation in 1999 gave way to a startling sense of possibility and reality in July 2000, when the Assembly of the OAU adopted the Constitutive Act of the AU in Lome, Togo. The Act replaces the Charter of the OAU. The AU has a sister, born on October 23, 2001 in Abuja, Nigeria--the New Partnership for Africa's Development (NEPAD). NEPAD is:

a pledge by African leaders, based on a common vision and a firm and shared conviction, that they have a pressing duty to eradicate poverty and to place their countries, both individually and collectively, on a path of sustainable economic growth and development, and, at the same time, to participate actively in the world economy and body politic.

The AU Act, together with NEPAD, intends to extend and deepen Africa's regional commitment towards democracy, human rights, economic and political integration, sustainable development, and peace and security. It is, however, not yet clear if the AU is a mere reincarnation of the OAU or an entirely new plan for African development; although the OAU Secretary-General has given an assurance that it is a new entity.

To the effect of making a brief eulogy, the OAU's contributions towards the restoration of political independence in all of Africa undoubtedly tops its list of achievements. The Organization strengthened the anti-colonial lobby in the United Nations (U.N.) and gave material and diplomatic support to the liberation movements. FN10] This "represents concrete achievement of the pan-African movement." Although slightly overstated, the OAU sums up its achievements in the following words: "Through huge sacrifices and heroic struggles, Africa has broken the colonial yoke, regained its freedom and embarked upon the task of nation-building." There were, however, many shopping lists of tasks that the OAU could not complete. The reserve domain doctrine, the policy of non-interference--a doctrine that succeeded in making African leaders accessories before, during, and after state criminality--largely facilitated the OAU's failures. The OAU became largely a club whose members entertained intensive social relations among themselves and tended to show a sort of group solidarity towards the outside world.

There is no point in moping and sulking about the past and, in particular, on the failures of the OAU. It is the duty of every age to strive to find its own truth. As Mammo Muchie puts it, "[w]hat the OAU was able to do, it has done. What was beyond it has to pass on to the African Union." Certainly, the avalanche of unresolved conflicts in the continent and the new ones that brew up from time to time are part of the unfinished business of the OAU that the leaders of the AU and NEPAD will have to urgently address. Conflict resolution and the peace, security, and stability were no doubt major concerns of the OAU from the beginning. The Organizationdeployed tremendous efforts towards a search for peaceful resolution of conflicts in Africa, but the rewards were not always commensurate with the efforts invested. Indeed, Africa, a continent that has not known peace, is still defined by crises because it is perpetually plagued by conflicts, famine, and disease.

This Article looks at conflicts in Africa in the light of the refurbished continental organization, the AU, and the new development agenda, NEPAD. Against the background of reiterated failure and incessant peril, it asks what these new bodies have to offer in tackling the problem of conflicts in Africa. The Article examines the current mechanisms for dealing with conflicts in Africa and offers some suggestions towards strengthening them. It advises the leaders of these new creatures to put the problem of conflicts on the front burner of their continental development agenda, because peace and security are the keys to the restoration of the continent's greatness and glory. It may be boldly, but truthfully, asserted that there will always be economic and social development anywhere that there is internal and external peace and security.

First, the Article examines how conflicts retard Africa in terms of both human and economic costs. Second, the Article looks at the current normative and institutional agendas for dealing with conflicts in Africa. This includes highlights of the relevant provisions of the AU Act and NEPAD on conflicts, peace, and security as well as the institutional framework for conflict prevention, management, and resolution in Africa. Third, the Article points to areas requiring rethinking, focusing on the root causes of the problem rather than on pious irrelevancies and sanctimonious trivialities of the past. It argues that more will need to be done, and quickly, in order to establish a climate of peace and security that will usher in socio-economic development in the continent. Finally, the Article concludes that Africa's development agenda will be a mirage unless pragmatic solutions are found to intractable intra- and inter-state conflicts in the continent. Nothing is more likely to disrupt the unity of African States and their economies than internecine disputes and bad relations among them. Any effective method for tackling the challenges of the new era has to be one that integrates both the requirements of economic development and the demands for peace and security.

* * *

V. Conclusion

It is true that colonization of Africa, like slavery, impacted negatively on its development, a position forcefully canvassed by the dependency theory. It "subverted hitherto traditional structures, institutions and values or made them subservient to the economic and political needs of the imperial powers. It also retarded the development of an entrepreneurial class, as well as middle class with skills and managerial capacity." It is no longer tenable or attractive, however, to justify Africa's current development plight on colonialism. Africa need not look too far to find the reasons for its current economic, political, and social quandaries, one of which is the avalanche of armed conflicts besieging the continent--mostly by those countries that could least afford them. The festering conflicts of today, like the ravages of poverty, threaten the many modest achievements in health and education that African governments, the international community, and local citizens have laboured for long decades to attain. The dependency theory no longer suffices as an explanation for underdevelopment, as the remarkable economic growth of Taiwan demonstrates.

As a vital first step, African countries should cut down on their defence spending and other white elephant projects. This is the only way the industrialized world is going to take Africa's campaign for debt relief and cancellation seriously. NEPAD may be a plan "of extraordinary vision and immense realism," as the Canadian Prime Minister, Jean Chretien reportedly said. African leaders will first need to put their houses in order to engender the political will for massive debt relief by creditors and ensure better management of their economies to minimise the debt problem. It is therefore vitally important for African governments to dedicate a larger proportion of their national budgets to the revitalisation of social services, in particular health and education.

Meanwhile, Africa must articulate a new approach to conflict resolution, since the time for flogging dead paradigms is past. It must be one that will involve not just the leaders but the African people as well. More importantly, "it must be based on indigenous solutions to reconstructing the African state in all its dimensions." Africa has had its fair share of conflicts. If we assume that life is worth living and that man has a right to survival, then an alternative must be found to conflicts in Africa. Although some men in our time still feel that war is the answer to the problems of the world, wisdom, born out of experience, tells us that war is obsolete. "There may have been a time," says Martin Luther King Jr., "when war served as a negative good--by preventing the spread and growth of an evil force--but the destructive power of modern weapons eliminates the possibility that war may serve as a negative good." The continent's leaders and peoples must find peace with all men and brotherhood, without which no sustainable development can take place.

[a1]. Senior Lecturer, the Department of Jurisprudence and International Law, University of Lagos, Nigeria; former visiting Research Fellow, The Danish Centre for Human Rights, Copenhagen, Denmark; Member of the Nigerian Bar; LL.M., LL.B. (Lagos);

Subcategories

Africa, Generally
Article Count:
11
South Africa
Article Count:
6
Sudan
Article Count:
1
Ghana
Article Count:
1
Rwanda
Article Count:
1
Sierra Leone
Article Count:
1
Niger
Article Count:
1
Nambia
Article Count:
1

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