Africa: A Goldmine of Wrongs

A series of cases , well past their prime have been making it to court rooms and
demanding redressal. Although the cases in West have garnered attention,
those in Africa are hidden in plain sight. This piece explores the historical and
ecological violations Africa was subjected to and the legal mechanism to
compensate the victims and plug further subjugation.

On January 31, as Pope Francis descent to Kinshasa International Airport, his

visit was marked not just by the jubilation of scores of Catholics, but also by his
denouncement of the ‘economic colonialization’ that had plagued Africa for
decades and is still an ongoing phenomenon. Although, the economic
exploitation of Africa has been the elephant in the room, it has been relegated to
the back burner by the International Community as they wrestle among
themselves to gain a foothold in this dark continent. (How the withdrawal of
French troops from Mali was soon followed by the deployment of Russian
mercenaries lay bare to the fact)
In this article, we shall explore the after-math of the ‘economic colonisation’
that bogs down Africa, the factors that contribute to it and the suitable legal
mechanism (compensation scheme and the correcting the historical wrongs) to
stave off another colonisation.

Disgraceful Concoction
While economic gains generally besmirch an area with small-scale
environmental degradation, here was a region that has been wobbling between
floods and droughts of stratospheric proportions. Severe floods engulfed South
Sudan, Nigeria, Republic of Congo and Democratic Republic of Congo in 2021
and drought-led forest fires have enveloped the north of Africa. The intermittent
floods and droughts will hit 250 million Africans and take a beating on the
GDP. Besides, the resource exploitation also feeds the militias that control vast
swathes of Africa, further exacerbating the deteriorating ecological and political
conditions. The foundering economy and the environment degradation ( with
the rampant corruption in the government and lawlessness)legitimises the rule
of militia. Thus, the aftermath and the factors that contribute to the ‘economic
colonization’ are two sides of the same coin. In short, Africa is caught in a
vicious circle, where the timely exit of China and the West is the only way
forward.
Suitable Legal Action
Although an exit of the West is much desired, a withdrawal, after having left a
continent to the dogs, is to be accounted for. With the stringent international
norms, holding the West accountable is no longer a pipe dream. However, with
the multifaceted destruction, legal action has to be effected on various fronts.

Ecological front
With Africa caught in a double whammy situation, (the ecological destruction
aggravating the conflicts), it recently saw light at the end of the tunnel. Suits
such as the one brought out by Nigeria against Shell are just the baby steps. In
the above case, Shell’s Nigerian subsidy SPDC was held responsible for the
disastrous oil spill in the Niger Delta which costed the livelihoods of the
farmers and had a toll on the environment. However, the problem here is twin-
fold.
 The human cost of ecological destruction isn’t foreseeable. An illustrious
case would be the curative petition submitted in the case of Union
Carbide Corporation V Union of India, where Union Carbide fervently
denied to pay a farthing more of the compensation, though the number of
victims had surged since the disaster occurred. Factory pollution, oil spill
and disasters of like nature involve seepage of toxic chemicals (such as
lead) into soil and water bodies, which will be hard to detect. The
repercussions of such a disaster could span generations. The remedy is
that the compensation should primarily be used to clean up the
environment. Victim compensation shall be restricted to 1 st generation
victims. A similar view is expressed by the Nagasaki court as it curtailed
the ambit of aid to 1st generation hibakusha (atom bomb survivors). Now
as Zambians, move to court against, the mining company, Anglo
American, on charges of lead poisoning, though a laudable feat, care has
to be taken to dole out the compensation prudently.
 The consequences of Africa’s problems not just transcend generations,
but also borders. Africa’s shared waters imply a stop-gap approach
shouldn’t be adopted to deal with the crisis. It also means the fall-out of
an ecological crisis could spill over to neighbouring countries leading to
an increasing number of compensation-seekers. This buttresses my earlier
proposition to focus on recuperating the environment.
 Further, a huge burden of compensation may also deter foreign
companies, when Africa is in acute need of investment. Therefore, a
balance must be struck between achieving a clean environment and
fostering businesses.

The Tort of Historical Wrongs

As stated earlier, Africa has been atrophied by a series of coups and civil wars
degrading the existing ecosystem. To put brakes on the degradation, there is an
urgent need to resolve the conflicts. These conflicts involve various players (not
just nations, but also offshoots of terrorist organisations) and have a history
dating back years. Thus, finding a permanent solution appears to be a distant
dream. However short-term measures will alleviate the grievances of the
survivors. While these wars could drive a million in search of new pastures, aid
should be provided to those staying put. Government troops and non-state
armed groups should also be held liable for the atrocities committed (an
impartial judiciary is essential) and compensation should be dispensed to the
victims.
But what hinders the disbursement of compensation is how most of the crimes
with time, would be classified as historical wrongs. The tort of historical wrongs
has been a grey area.
 On one hand, meting out justice to victims of historical wrongs runs
counter to the statute of limitations, on the other, trials such as the
Nuremberg is a paradigm on how justice could be dispensed long past a
crime is committed, setting aside the limitation period. Despite this, there
are wrongs such as the Rwandan genocide where the extremist Hutus
slaughtered the Tutsis at a rate “five times that achieved by the Nazis”
and was still overlooked by the West.
 In Mutua V Foreign and Commonwealth Office, Mc Combell J. opined
that the wrongs alleged must be extremely grievous such as torture, rape,
castration and severe beatings. Even when the conflicts in Africa are
fraught with grave human rights violations be it the recent civil war in
Ethiopia or the “forgotten war of Cabo Delgado”, the international
community has failed to take the perpetrators to court.
 In ancestor- based claims, where there is the victim-wrongdoer
attenuation, there must, there must be sufficient connectivity between the
plaintiff of now and the victim of then. Though there are conflicts which
fail to meet the above criterion, there are ‘continuing genocides’ such as
the Darfur (Somalia), where victims couldn’t be strait-jacketed into
victims of the present and past. The above criterion is also myopic in the
respect that the after-effects of a conflict (such as malnourishment,
homelessness, lack of sufficient aid (at times due to the sealing of borders
by the enemy [as in Yemen]) could still claim lives and the effect could
linger on for years. The victims of such distress would be ineligible to
bring suit.
Though revamping the above criterion might result in a plethora of suits,
efforts must be made to dispense justice. The ideal way is to rebuild the
lives of the victims.

Therefore, from the above, it is evident that the tort of historical wrongs
had a bumpy ride.

Presently, courts are renouncing the ‘let bygones be bygones’ attitude

and adopting the old idea of ‘reparative justice’. On this note, a flurry of
historical wrongs has been brought to public attention-the Japanese
comfort women case, Magdalene Laundries abuse, Catholic Church abuse
scandal and reparations are being made for the same.

Indigenous people are also receiving the justice that has been denied to
them for years. The probe into Canada’s Indian Residential School
System, though reopened old wounds, is in a manner, a delivery of
justice. Similarly, in the case of Kailas and Ors. V. State of Maharashtra,
the Indian Supreme Court, gave a clarion call to redress for the wrongs
done to the nation’s tribal people. The Court noted that the mentality of
considering tribal people as “inferior or sub-humans” is detestable.
With a vast majority of Africans native to the continent(thereby
indigenous) all this offers a glimmer of hope to Africa’s populace that
their grievances too will be answered.

Not a Rosy Picture

As briefed before, the West (China has made a recent forage into Africa)
has a hand in the wrongs committed in Africa. Be it the spill over of
colonialism (the racist leanings had spurred attacks in South Africa and
currently in Tunisia) or the resource exploitation (the diamond trade in
DRC funds the militias) and even indirectly through its reckless activities
accelerating climate change in the most vulnerable continent and
contributing to violence. With the West’s antecedent of non-compliance
 with ICC, African Union must be steadfast and represent the plaintiff.
(With the individual states bickering, often AU ensured peace in the
continent).

Further, the suits filed on the ecological and human costs have not always
been met with success. There have been setbacks on the above fronts.
 Lately, a French Court dismissed a case against Total Energies for oil
projects in Uganda and Tanzania on its failure to adhere to the ‘duty of
vigilance’. These days, when oil companies are drawing ire from climate
activists (with ravages of climate change occurring daily too), this
judgement is unacceptable.
 South Korean policy to compensate its citizens who were forced to work
in Japanese factories has angered the South Korean masses as it doesn’t
hold Japan accountable. Thus, not merely justice must be done but a
sense of justice must also prevail.

Conclusion
As, Carl Sagan remarked, “You have to know the past to understand the
present”, Africa’s past wrongs (be it the ecological destruction or historical
atrocities) have left festering wounds. Better late than never, these wrongs must
be undone lest the ramifications shall not be confined to Africa( resulting in a
deluge of refugees and undoing the efforts to taper off climate change.) Thus,
it’s not just Africa’s, but is the concern of the world, that Africa’s wrongs be
remedied.