Sun | Dec 5, 2021

Reparations: a case for settlement

Published:Sunday | June 30, 2013 | 12:00 AM
A Rastafarian man holds up a cardboard placard calling for reparations during a demonstration as Britain's Prince Harry visited the non-governmental organisation RISE in Kingston on March 6, 2012. - AP

Courtenay Barnett, Guest Columnist

This month, Her Majesty's Government (HMG) was required to pay 19.9 million pounds in compensation to some 5,000 elderly Kenyans who were tortured and abused during the Mau Mau uprising in the 1950s. This case bears lessons for the Caribbean and it also has much to teach about the true nature of the British Empire.

The British imposed themselves in Kenya and confiscated land. In 1948, a quarter-million Kenyans were confined to 2,000 square miles, while 30,000 English settlers lived on 12,000 square miles of the most fertile lands in Kenya. Africans under an apartheid and colonial policy were forbidden to enter certain areas and confined away from the most arable land.

Not surprisingly, the Kenyans rebelled and started a violent campaign against the white settlers in 1952. The colonialists responded, and the Kenya Human Rights Commission estimated that 90,000 Kenyans were executed, tortured or maimed. There was the use of literal concentration camps as a nationwide network of detention for some 160,000 who were detained in the most appalling conditions.

TORTURED

President Obama's grandfather, Hussein Onyango Obama, happened to be one of those detained persons. He had pins placed into his fingernails and in his buttocks and his testicles were squeezed between metal rods. Other Kenyans were forcibly relocated in new villages. Within the camps, the British inflicted beatings, castrated, raped and performed other forms of sexual abuse and torture applying brutal interrogation techniques against the Kenyans.

It was against this background that elderly Kenyans who had suffered abuse when detained filed a claim in the English High Court. Two of the original five claimants had been castrated and an African lady who had been raped was included in the claim.

One might be astounded that despite the repeated public and international proclamations for many years by HMG about defence of all types of human rights, it fought the Kenyan claims. In 2011, the High Court finally ruled that the four test cases were "arguable cases in law".

The Foreign and Commonwealth Office (FCO) went as far, on the second round of the British government's objections, of arguing that the claims were outside time limits. But, one knows in point of law that there is no statute bar on a crime against humanity, as one is aware that for murder and serious criminal offences no statute of limitation applies.

In October 2012, the cases were permitted to proceed to trial, despite the best legal resistance that HMG could muster. The British government went as far as hiding an enormous secret archive consisting of more than 8,000 files from 37 former colonies, which researchers discovered and HMG was compelled to disclose. At Hanslope Park in Buckinghamshire, this secret archive was held separate from the National Archive at Kew, London. This discovery of the several documents corroborated the Kenyans' claims.

NO APOLOGY

The FCO expressed "regret" but then immediately drew semantic distinctions, stating that the expressed "regret" was not an "apology". The reason for this, one surmises, is that the Caribbean has a very strong case to be brought for reparations for the transatlantic African slave trade once an apology is made, and there is full acknowledgement of the crime against humanity.

Queen Elizabeth I, by way of Royal Charter and ably assisted by Captain John Hawkins in the 1500s, established a criminal enterprise of funding for trips to Africa to kidnap Africans, place them on ships and via the Middle Passage, sail them across the Atlantic to be enslaved on plantations and for centuries without pay, have the enslaved and each generation thereafter build wealth for Britain, being the principal slaving nation in the modern world.

As with the Kenyan claim, one expects all forms of continuing denials before the claim is filed and the case is finally compensated. Following the victory for the Kenyans, the British government hastened to state that it "... doesn't accept liability for the actions of previous colonial governments".

This declaration is consistent with the central intellectual plank of resistance used by European historians to "racialise" and rationalise the kidnapping of Africans to state that Africans captured Africans to be sold, therefore no claim can be made for slavery reparations.

FEEBLE ARGUMENT

So, might one honestly ask, when France warred with England or Germany with the rest of Europe, is that how European historians reasoned - that there was no wrong for want of European racial solidarity when lining up to fight their own kith and kin? I think not.

If so reasoned, war reparations would never have been imposed by Europeans. One Hermann J. Abhs, a German Jew, financed Auschwitz, the concentration camp in which thousands of Jews were slaughtered. As director of the Deutsche Bank Abhs, he definitely played a direct role in financially assisting the Nazi regime along with corporations that participated in war crimes.

Clearly, tribes and nations exist in Africa, and as with European warfare, so, too, did Africans fight Africans, but African leaders resisted the slave trade from its inception:

"And we cannot reckon how great the damage is, since the mentioned merchants are taking every day our natives, sons of the land and the sons of our noblemen and vassals and our relatives, because the thieves and men of bad conscience grab them wishing to have the things and wares of this Kingdom which they are ambitious of; they grab them and get them to be sold; and so great, Sir, is the corruption and licentiousness that our country is being completely depopulated, and Your Highness should not agree with this nor accept it as in your service.

"... We beg of Your Highness to help and assist us in this matter, commanding your factors that they should not send here either merchants or wares, because it is our will that in these Kingdoms there should not be any trade of slaves nor outlet for them.

"And as soon as they are taken by the white men, they are immediately ironed and branded with fire, and when they are carried to be embarked, if they are caught by our guards' men, the whites allege that they have bought them, but they cannot say from whom, so that it is our duty to do justice and to restore to the freemen
their freedom, but it cannot be done if your subjects feel offended, as
they claim to be.
"

(Letter from African King
of the Congo, Nzinga Mbemba - aka Afonso I - to the King of Portugal;
letter dated October 18, 1526)

Britain's Black
Debt

The Caribbean claim for reparations initially is
academically established by Dr Eric Williams' book, Capitalism
and Slavery
, and more recently advanced by Professor Hilary
Beckles' book, Britain's Black Debt. Every facet of
British society has been astoundingly enriched from the period of
African enslavement in the Caribbean.

Slavery for
Britain was central to the British economy, and at the time was
proclaimed to be central and in the "national interest" for the
enrichment of Britain, including royalty and the Church of England.
Barclays Bank was started from the profits of two plantation owners who
traded in slaves. The insurers, Lloyd's of London, started as insurers
of ships that were transporting slaves from Africa to the
Caribbean.

The real point is the inuring British
judicial denial of "human rights" which exposes a stark contradiction
between the basic professed tenets of English law, respect for the rule
of law, human rights and justice and the conflicting set of views which
to this day instinctively and compulsively deny the rights of
others.

If the Kenyan case was one of the darkest
episodes of Britain's imperial past, what then, in comparison, would the
Caribbean claim for reparations constitute? The Caribbean has a
challenge, now bolstered by the Kenyan case, to take collective steps to
commence a claim for reparations.

It is not that
Britain wants to learn from the past; rather, there is a decisive
wilfulness to distort, avoid, hide and minimise the true levels of
compensatory payments and/or restorative sums lawfully due. This
observation is factually supported by reference to certain colonial
files being placed out of reach despite the stipulations of the UK
Freedom of Information Act.

Additionally, there is a
case to be brought in England that the provisions of the Public Records
Act 1958 have been breached.

Making the
case

The claim for reparations can be made in one or
more of the following ways:

Placing the matter before
the UN General Assembly. This was the declared intent of Chief Abiola,
the elected leader of Nigeria. Sadly, it appears that he was killed by
the military when he had been imprisoned and the intent to claim
reparations through the Nigerian government's efforts at the UN died
with him.

Use of a specially constituted
international tribunal to decide upon the terms of payment through a
negotiated settlement.

A contested case argued before
an international court. There being at present no international court
with specific jurisdiction for the award of African reparations, the
claim becomes one of political will to make the claim and establish a
specially constituted court.

Reliance can be placed
on the International Court of Justice through which an advisory opinion
can be sought. This fourth point relates to the first in that the
General Assembly of the United Nations could make this
request.

For some, the matter may seem something
related to the distant past that has no contemporary bearing. History,
however, is not disjointed. The negative self-images of the African, in
psychological, literary, economic and social terms, are not conditions
biologically determined, but rather are historical
constructs.

Power never conceded anything without a
demand.

Assessing the value

The
value that may be assessed due from Britain relates to a starting point
of the sum of £200 billion, ably and vigorously debated in no less an
august place than the British Parliament. Much of British aid money
serves purposes that are disguised to promote sales of British produce
and services abroad (arms included).

Reconfiguring the
existing aid funding and redesigning British foreign policy can do much
good, in shifting from handouts of beguiling aid and supportive pursuit
of wars of aggression to constructive payments of reparations for
sustainable Caribbean development and, indeed, stepping along a path of
global justice.

Her Majesty's Government cannot now
afford the greater embarrassment of fighting a case of far larger
historical significance than the Kenyan cases, so might avoid the cost
of further debasing the professed value system of the British government
and state and its global reputation.

The people of
the Caribbean should now decisively bend the arc of history from
assumptions of benevolent associations with Empire towards direct
efforts in pursuit of this claim for justice.

Courtenay F.R. Barnett is a graduate of London University. His areas of
study were economics, political science and international law. He has
been a practising lawyer for more than 30 years. Email feedback to
columns@gleanerjm.com and
courtenaybarnett@yahoo.com.