Wednesday, 2 April 2014

Reparations and some legal hurdles

IT is more than slightly ironic that regional leaders have retained the services of a British law firm to assist their efforts legally to gain reparation from as yet unnamed defendants for the consequences of the slave trade. Unless this retainer is on a contingency fee basis; that is, on the condition that there will be the payment of fees only in the event of a successful claim, then that British law firm is in a win-win situation so far as remuneration is concerned.

It is perhaps surprising that after nearly half a century of regional legal education that the leaders should have turned to a British firm for representation in this matter. But we have seen the same attitude manifested by some jurisdictions with regard to their reluctance to accede to the Caribbean Court of Justice (CCJ) as their final appellate court. As it is with the CCJ, these states prefer, seemingly, to contribute financially without using the product of that monetary underwriting.

Nonetheless, the prospect of court action on this issue appears to have been further delayed with the recent decision at the CARICOM inter-sessional summit to approach the European states with a view to an amicable settlement of the matter.

This is a commendable move, especially in light of the arguable weaknesses surrounding any court action on the issue. While this is not meant to deny the moral force of an argument for reparations, we must remind the public proponents of this claim that a legal issue is not resolved solely on moral right, but rather on the application of strict principles of law in a jurisdiction and before a forum clothed with formal authority to hear the matter.

And while we do not intend to throw cold water on the legal claim, there are several hurdles that must be faced in the event that the proposed talks are unsuccessful. Among these is the issue of which court has jurisdiction to try this matter. For instance, the recent successful claims of the Kenyan Mau Mau fighters for compensation for their torture at the hands of the British was launched in the High Court in England. It is in serious dispute whether this tribunal or a regional one has any jurisdiction in a case brought against European states generally.

Another relevant issue is the identity of the proper claimants. While it is understandable that regional governments should lead the fight at this stage, we are not certain how the enslavement of the ancestors of a majority of the citizens of the region translates into a legal claim for reparations by the states themselves. If the claim were one for the act of enslavement of the transported Africans by the European powers, then an effective response would be that the states themselves suffered no harm and are thus not competent to maintain an action. On the other hand, if the claim is one for the deleterious consequences of this inhumanity, then, even if we accept that the regional governments should act as agents of the respective states, there may very well be some nice issues of causation to be determined, given that the events in question occurred nearly 200 years ago at latest.

Further, a significant aspect of the claim will be that a legal wrong was done to the claimants. Clearly, in the cases of the Mau Mau and other parties who have made successful claims, the issue of the wrongfulness of the offensive conduct in question was not seriously in issue. The principle that conduct is not to be treated as unlawful unless the law in existence at the time of its commission makes it so might present an insuperable hurdle in this context for the regional claim. It is globally accepted now that the slave trade constitutes a crime against humanity. The critical question is whether it was so then.

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