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25 April 2024 Photo Supplied
Khanya B Motshabi
Khanya B Motshabi is a Senior Lecturer of Public Law and the Strategy Lead of University of the Free State Africa Reparation Hub.

Opinion article by Khanya B Motshabi, Senior Lecturer of Public Law and Strategy Lead of UFS Africa Reparation Hub.


Unjustified injuries inevitably trigger demands for remediation, almost always, at some point.  If so, colonial-apartheid atrocities rightly produce claims to redress. This face of reparative justice claims is easily cognisable. But it hides a deeper and larger claim to wholeness. Wholeness returns something to its original condition, or nearly there, and compensates for intervening fissures. Return and reparation are thus key remedies for colonial-apartheid harms. Wholeness builds on such ideas as replacement, atonement, restoration, and restitution. Wholeness concepts recognise, enable, and propel national reconstruction, an essential for shattered nations. This logic is perfectly compelling. Appreciation of colonial-apartheid depredations may be faint. However, colonial-apartheid harms equate to major world system shocks. Think of natural and ecological disasters, public health crises and material armed conflict. Picture post-1945 Germany. Imagine post-Belgian genocide Congo. Take Rwanda post-genocide. And on, we could continue.

Inevitable calls for justice

Reparative justice scholarship must frame the imperative of global justice. It imagines the world of our dreams. These fit the emerging world system opportunities, including timing inflections, to which I return. The fundamental justice thrust of reparatory scholarship is as eternal, of course, as is unremedied unjust injury. This intellectual, and political, ambition fuels the University of the Free State (UFS) Africa Reparation Hub. Reparatory scholars must prove the historic injury. This is not a tool of attack, discomfiture, or division. It merely grounds the justice claim. Domain scholars must, directly and indirectly, articulate this justice claim. Accordingly, we must cement relationships with both the African Union (AU) and sub-continental multilateral organisations. The Reparation Hub helps formulate AU reparative claims across conceptual, legal, political, and diplomatic realms. The Hub is assembling a Panel of Experts on Africa Reparations Experts (PEAR). The hub is creating a comprehensive Africa reparations information archive and resource repository. Recently, the Hub, Department of Public Law and Faculty of Law hosted their first reparations seminar, with Prof Saleem Badat as leader and Prof Pearl Sithole as discussant. The Hub officially launches in June 2024. The Hub continues its reparatory justice research. Undergraduate and graduate teaching and learning programmes could and should follow, in well-chosen good time, with due protocols.

Building the framework for justice

Reparative scholarship inhabits an ethically and morally attractive moral universe. Subjugation of former colonists, often current neo-colonialists, does not belong there. That would be wrong. Indefensible. What we want is a world defined by justice. There, human security and a sound peace and community among nations are possible. The supplicant status of former colonies must be reversed. The current world order obstructs - effectively precludes - human rights realisation in the post-colony. Post-colonial human rights enjoyment rests not simply on abstractions like freedom, equality, dignity, separation of powers and the rule of law. Intrinsically, these abstractions offer obvious human rights and human dignity value. Less obvious is their contextually defective human rights proposition. That the lofty rhetoric, and ostensible principles, should easily co-exist with endemic violations is strange. Deliberate worldwide human abuses, including war and genocide, especially against dark coloured persons are strange, or should be, strange. One international hegemon was at peace for about fifteen units of its near 250-year life, only. A global power has militarily attacked an estimated 85 to 100 countries, merely between 1945 and 2011.

The archetypal victim is a global South human. This is a poor human rights formula for the mythological exotics, the ones who by general misperception, are deservedly subject races.  African peoples, lawyers and scholars hardly have coherent experiential human rights stories. Such is our history, past and present. That human totality has shared aspirations matters not a jot. That humanity shares the same earth-space community is an incidental and dismissible insight. 

Perforce, the foundation of global South human rights protection is different. Coloniality, or enduring post-colonial colonial relations, must end. Reparation must, among other things, reverse at least those development deficits connected to colonial exploitation. Reparation, in the material form, can restore some extracted economic value. As both end and means, reparation is essential for post-colonial human liberty and fulfilment. Accordingly, decoloniality and reparations inherently drive quality post-colonial human rights outcomes. Instrumentally, decoloniality and reparations enhance global South human rights realisation. Political design imperfections aside, the painfully emerging multipolar global democracy may offer superior human rights actualisation. Life is, in this sense, a gamble. We have no choice on that world architecture gamble. But the geopolitical recalibration, itself, is afoot and assured. So, reparative justice features in a precious trio: decoloniality, reparations and multipolarity. Under this trio lies a vital ontology: validly, dark peoples are indeed human and dark nations are indeed nations. Dark peoples legitimately claim, and truly enjoy, human rights and human dignity. That eminent scholar, Michael Riesman, illustrates acutely. Human rights and human dignity are not myth system. Human rights and human dignity are operational code, reality.

The path to human rights

The forecast multipolar, decolonial and reparative conditions present a signal world system opportunity. The timing seems apt. And the opportunity promises much. The constitutive work is currently underway, as is evidently though murky. The architecture is difficult to imagine, design and assemble. But our dreams are crisp and bright. We want and deserve to inhabit that new world. We, the Africans, have for too long been disposable, forgettable. A world order warm to African, African-descent and post-colonial peoples prizes multipolarity, decoloniality and reparation. Post-colonial human rights fulfilment presupposes this system design principle. The principle fuels African human rights and human dignity. So, its inherent priorities represent the world we want. There, international society defines, or punctuates, itself by human rights as multipolar, decolonial and reparative arrangements. The is the stuff of dreams. A world of dreams. The dreams of our children and their children. I previously claimed that ‘our children are the force behind the waves of history still to come.’ I repeat that claim. Supported by decoloniality, multipolarity and reparation, our descendants can shape human history and human rights. We dare not squander their legacy, not least through corruption and state capture. We want better. We must behave better. Decoloniality, multipolarity and reparative justice promise, and demand, better. Then, post-colonial human rights actualisation might be optimal.        

News Archive

Resource Manual on Trafficking in Persons for Judicial Officers sees the light
2012-03-27

 

Judge Connie Mocumi, President of the South African Chapter of the International Association of Women Judges (SAC-IAWJ), during the launch of the Resource Manual on Trafficking in Persons for Judicial Officers.
Photo: Leonie Bolleurs
27 March 2012

On Human Rights Day the Department of Criminal and Medical Law in the Faculty of Law at the University of the Free State (UFS) hosted the launch of the Resource Manual on Trafficking in Persons for Judicial Officers compiled by the South African Chapter of the International Association of Women Judges (SAC-IAWJ).

The manual, which will be used by members of the South African judiciary, will equip officials in adjudicating the multifaceted crime of human trafficking.

“Presiding officers must be sensitised about the complexity of the crime. Human trafficking has many faces and presents itself in different ways. A person may for example be trafficked for sexual exploitation, forced labour, the removal of body parts, as well as forced marriages. Expert knowledge is needed to handle these cases effectively in court,” said Dr Kruger, also responsible for the human trafficking initiative in the Unit for Children's Rights at the UFS.

Prior to the launch, a total number of 300 judicial officers, including six judges from the Southern African Development Community (SADC) received training on human trafficking. After receiving this training, the officers were sensitised to scrutinise domestic violence cases as well as inter-country adoption cases in order to identify possible human trafficking activities.

As keynote speaker at the launch, Dr Beatri Kruger from the Department of Criminal and Medical Law at the UFS, said that human traffickers were running operations like a well-oiled machine. They have abundant and sophisticated resources and often bribe corrupt officials to further their criminal activities. In South Africa, people combating human trafficking struggle with a lack of resources as well as comprehensive legislation. Most cases are prosecuted under the Children’s Act and the Sexual Offences Amendment Act of 2007. Unfortunately, this legislation still leaves a gap in the prosecuting of perpetrators. Only trafficking cases where where children are trafficked can be prosecuted under the Children’s Act. In terms of the Sexual Offences Amendment Act perpetrators can be prosecuted for trafficking persons for sexual exploitation only, and not for labour of other forms of trafficking. Therefore the comprehensive Prevention and Combating of Trafficking in Persons Bill 2010 needs to be finalised to cover all forms of trafficking.

There are more slaves today than at any time in the history of humankind. “To combat this serious problem, we need to follow a holistic approach,” said Dr Kruger. This includes prevention (raising awareness), effective prosecution and suitable punishment, the protection of victims, and partnering with all relevant stakeholders, including people in the communities. Community members are often whistle blowers of this crime.

The President of the SAC-IAWJ, Judge Connie Mocumi, handed copies of the manual, a three-year project, to judicial officers present at the launch. The manual covers, among others, the definition of trafficking in persons, trafficking in persons in South Africa and the Southern African region, a legislative framework, victims’ rights and criminal proceedings.

“It is critical that judicial officers appreciate the phenomenon of trafficking in persons in its broader socio-economic context. Therein lays the ability to deal competently with the often-nuanced manifestation of this scourge. The incapacity to recognise these nuances can deny victims access to justice. In that regard, the manual, amongst others, is to become an important empowering adjudication tool for judicial officers,” said Judge Mocumi.

More copies will be printed and be ready for distribution by the beginning of May this year.

Judge Belinda van Heerden, who also attended the launch, said: “There is progress on the judicial and legislative front to bring wrongdoers to book. This manual will go a long way in giving judicial officers insight into the problem.”

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