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Reparative Justice as Human Rights

25 April 2024 Photo Supplied

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

“To forgive is not an obligation. It’s a choice.” – Prof Minow during Reconciliation Lecture

2014-03-05

“To forgive is not an obligation. It’s a choice.” – Prof Minow during the Third Annual Reconciliation Lecture entitled Forgiveness, Law and Justice.
Photo: Johan Roux

No one could have anticipated the atmosphere in which Prof Martha Minow would visit the Bloemfontein Campus. And no one could have predicted how apt the timing of her message would be. As this formidable Dean of Harvard University’s Law School stepped behind the podium, a latent tension edged through the crowded audience.

“The issue of getting along after conflict is urgent.”

With these few words, Prof Minow exposed the essence of not only her lecture, but also the central concern of the entire university community.

As an expert on issues surrounding racial justice, Prof Minow has worked across the globe in post-conflict societies. How can we prevent atrocities from happening? she asked. Her answer was an honest, “I don’t know.” What she is certain of, on the other hand, is that the usual practice of either silence or retribution does not work. “I think that silence produces rage – understandably – and retribution produces the cycle of violence. Rather than ignoring what happens, rather than retribution, it would be good to reach for something more.” This is where reconciliation comes in.

Prof Minow put forward the idea that forgiveness should accompany reconciliation efforts. She defined forgiveness as a conscious, deliberate decision to forego rightful grounds of resentment towards those who have committed a wrong. “To forgive then, in this definition, is not an obligation. It’s a choice. And it’s held by the one who was harmed,” she explained.

Letting go of resentment cannot be forced – not even by the law. What the law can do, though, is either to encourage or discourage forgiveness. Prof Minow showed how the law can construct adversarial processes that render forgiveness less likely, when indeed its intention was the opposite. “Or, law can give people chances to meet together in spaces where they may apologise and they may forgive,” she continued. This point introduced some surprising revelations about our Truth and Reconciliation Commission (TRC).

Indeed, studies do report ambivalence, disappointment and mixed views about the TRC. Whatever our views are on its success, Prof Minow reported that people across the world wonder how South African did it. “It may not work entirely inside the country; outside the country it’s had a huge effect. It’s a touchstone for transitional justice.”

The TRC “seems to have coincided with, and maybe contributed to, the relatively peaceful political transition to democracy that is, frankly, an absolute miracle.” What came as a surprise to many is this: the fact that the TRC has affected transitional justice efforts in forty jurisdictions, including Rwanda, Sierra Leone, Cambodia and Liberia. It has even inspired the creation of a TRC in Greensborough, North Carolina, in the United States.

There are no blueprints for solving conflict, though. “But the possibility of something other than criminal trials, something other than war, something other than silence – that’s why the TRC, I think, has been such an exemplar to the world,” she commended.

Court decision cannot rebuild a society, though. Only individuals can forgive. Only individuals can start with purposeful, daily decisions to forgive and forge a common future. Forgiveness is rather like kindness, she suggested. It’s a resource without limits. It’s not scarce like water or money. It’s within our reach. But if it’s forced, it’s not forgiveness.

“It is good,” Prof Minow warned, “to be cautious about the use of law to deliberately shape or manipulate the feelings of any individual. But it is no less important to admit that law does affect human beings, not just in its results, but in its process.” And then we must take responsibility for how we use that law.

“A government can judge, but only people can forgive.” As Prof Minow’s words lingered, the air suddenly seemed a bit more buoyant.

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