President Bush has failed to halt a $400 billion dollar lawsuit against BP, Barclays, Coca-Cola, Ford and many other transnational corporations, for their activities in South Africa during the apartheid years. The ambitious case was launched in 2002 and is being led by South African lawyers John Ngcebetsha and Dumisa Ntsebeza. The latter, who was chief investigator in the post-apartheid Truth and Reconciliation Commission, sees suing foreign firms for reparations as part of the Commission’s ‘unfinished business’.
The lawsuit was filed by victims of human rights abuses and their families. One of the plaintiffs is Dorothy Molefi, whose 13-year-old son Hector Pieterson was murdered by police during the Soweto uprising in 1976, and whose image became iconic for the anti-apartheid movement. Another is Lungisile Ntsebeza, brother of Dumisa and sociology professor at the University of Cape Town, who spent six years in prison for his anti-apartheid activism. The plaintiffs claim that more than 50 major companies were complicit in ‘the single worst human rights violation in history’ by doing business in South Africa in contravention of the US’s Comprehensive Anti-Apartheid Act.
Since its launch, the case has been batted about between various courts. The Bush Administration intervened last October, asking the Supreme Court to stop the lawsuit on the grounds that it ‘would interfere with [the Government’s] ability to employ the full range of foreign policy options when interacting with regimes the US would like to influence’. Other governments, including those of Britain, Germany, Switzerland and South Africa itself, also expressed their opposition, and many of the American and European companies implicated in the case filed their own appeal.
With such powerful players working against them, it had seemed that the apartheid victims’ voices were destined to go unheard. It simply remained for the Supreme Court to rubber-stamp the US Government’s request.
However, in an ironic twist, the close links between government, judiciary and the private sector have scuppered their attempts to sabotage the lawsuit. Federal law requires at least six of the nine Supreme Court justices to hear review cases. But four of them have been forced to withdraw because of ‘conflicts of interest’: they all have financial or personal connections with some of the companies on trial, including Nestlé, Hewlett-Packard and the Bank of America. One of the judges, Samuel Alito, is a particular favourite of George W Bush. In 2005 Bush nominated him for the post, calling him ‘a thoughtful judge who considers the legal merits carefully and applies the law in a principled fashion’. These words – and the appointment – have now come back to haunt him: it turns out that Alito holds stock of up to $250,000 in one of the accused companies, ExxonMobil. Arthur Hellman, Law Professor at the University of Pittsburgh, commented: ‘[Alito] has a very powerful position and I don’t think it’s too much to say that he shouldn’t own stock in a corporation like Exxon.’
Lacking the necessary number of judges, the Supreme Court had no choice but to announce in May 2008 that it is allowing the lawsuit to continue. Should it be successful, it could prove to be a milestone in international human rights law, triggering a wave of similar suits against multinationals operating in countries with poor human rights records. For this reason alone, the proceedings will be monitored with concern not only by the corporations themselves, but by governments which, until now, have been able to turn a blind eye to abuses perpetrated by their companies overseas.