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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

Judge Albie Sachs and Candice Mama discuss traumas of the past and forgiveness in the present

2015-08-05

Judge Albie Sachs embraces Candice Mama for her courage in confronting Eugene de Kock, who killed her father.

Two generations. Two stories of triumph. Two South Africans who have displayed immense courage.

Public Dialogue on Trauma, Memory, and Representations of the Past

Judge Albie Sachs and Candice Mama exchanged their experiences of past trauma and subsequent transformation in a public conversation. The event was co-hosted by Prof Pumla Gobodo-Madikizela and The Institute for Justice and Reconciliation (IJR) in Cape Town on Thursday 30 July 2015.

The event was the first instalment in a series entitled Public Dialogue on Trauma, Memory, and Representations of the Past. The theme of the discussion was ‘Intergenerational Dialogue on Trauma and Healing’.

"The aim of these public dialogue events we are co-hosting with IJR is to place the issues of trauma and memory, and the strategies that individuals and communities use to heal, in the public sphere," Prof Gobodo-Madikizela, Senior Research Professor in Trauma, Forgiveness, and Reconciliation Studies at the University of the Free State (UFS) said.

Judge Albie Sachs and Candice Mama in conversation

Former Constitutional Court Judge, Albie Sachs, talked about his participation in South Africa’s liberation struggle, the loss of his right arm in an assassination attempt, and meeting the man responsible – Henri van der Westhuizen. Despite years of exile and extended periods of solitary confinement, Judge Sachs maintains that “we need to acknowledge our history, not be trapped by it.” Judge Sachs also remarked, though, that “we’re seeing too much lamentation, not enough activation.” In a heartrending gesture, Judge Sachs embraced Candice Mama in a hug for her courage in confronting Eugene de Kock, who killed her father.

How poignant then, when Mama said, “I wanted to embrace the brokenness within him,” when she spoke about her meeting with De Kock. By the time I met with Eugene, I could meet him as a human being, not as a villain.” Mama believes that forgiving someone translates into an investment in the person you are forgiving and in your own sanity. She also emphasised the importance of dialogue to move our country forward: “When we share our stories with each other authentically, walls break down.”

This is a stance that Prof Gobodo-Madikizela supports strongly: “When we listen to one another, something unexpected emerges; we encounter the human in each other,” she said. “When we listen with open hearts to each other, we see and experience each other’s humanity.”

Building a bridge between research and society

Referring to the research aspect of the event, Prof Gobodo-Madikizela said that, "in establishing the series of public dialogue events, our vision is to create a bridge between scholarly research and the community at large, on the one hand, and a visual conscience of society, on the other." The UFS is collaborating with the IJR on this research project, which is funded by the Andrew W. Mellon Foundation. The endeavour is led by Prof Gobodo-Madikizela, who also serves as Board Member of the IJR.

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