Slavery reparations time is now
October 29, 2013 <http://www.herald.co.zw/author/wmurape/> Wenceslaus
Murape <http://www.herald.co.zw/category/articles/opinion-a-analysis/>
Opinion & Analysis
Dr Nora Wittmann
THE prevailing scholarly legal opinion categorically shuts the door on
claims for justice and slavery reparations by referring to the principle of
non-retroactivity and to the allegation, presented as if it were a fact,
that transatlantic slavery would have been legal at the time. This is
indeed the basic argument that European and US ex-enslaver states always
come up with first.
In fact, this is really the principal argument that they persistently repeat
each time they are confronted with the topic, indicating that this is where
the crux of the legal matter lies.
This principle of non-retroactivity, a tenet of international law, has the
effect that a state can only be found legally responsible if that state
committed an act that was internationally wrongful at the time it
occurred.
It is the combination of the allegation of international legality of
slavery at that time with this principle of non-retroactivity that is
invoked to categorically block transatlantic slavery reparation claims.
This is not a scientifically pertinent and tenable position, however. When
one contends that slavery was legal, it needs to be asked by whose
standards it is supposed to have been legal. The allegation of legality is
based solely on the colonial laws that European enslaver states passed after
they had been the driving force in transatlantic slavery for more than a
century already.
However, transatlantic slavery was not legal by the laws of affected
Africans, nor was it compliant with international law standards of the time.
It was not even legal by the laws of European enslaver states, most of
which had come to pass, in developments up to the 16th century, legislation
abolishing, or at least severely restricting, slavery and outlawing chattel
slavery. In their majority, these laws were never abrogated and thus
continued to be in force throughout the transatlantic slavery period.
Before the time of transatlantic slavery, many regions of Africa were active
participators in international relations, and many African societies had
highly developed political and social institutions.
Contrary to what we are often made to believe, African political entities of
that time were as much the creators, actors and subjects of international
law as their European counterparts. The available historical evidence shows
that these rules of international relations were known and respected by
African states in their encounters with European officials and traders
before and at the beginning of transatlantic slavery.
Tragically, this conformity with international law was not reciprocated by
their European counterparts, who disrespected agreements, ignored the
sovereignty of African states and violently deposed rulers who were
unwilling to collaborate with them in enslavement.
In the 17th and 18th centuries, when European nations started to legislate
on transatlantic slavery, international law was no tabula rasa (blank
slate). And Europeans, having always been only a global minority (and before
transatlantic slavery not a particularly powerful one), could neither
unilaterally impose what international law was, nor change it.
And contrary to hegemonic opinion, historical sources referring to African,
European and international law show that transatlantic slavery was indeed
illegal at its time. Now, the concept of legal responsibility and its
ensuing obligation to make reparations for wrongful conduct too was, in one
form or another, historically present in all legal systems concerned
African, European and international.
Once the illegality of transatlantic slavery can be established and
responsibility legally attributed, in appliance of the law of the time and
looking at the facts, reparation is due for this most massive crime.
Quite obviously, the assessment on its own that African states were subjects
of international law does not yet tell us anything about the legal status of
transatlantic slavery at that time.
In order to get there, a thorough historical investigation into the laws and
legal concepts of both European and African states, and their confrontation
with the ferocious reality of transatlantic slavery, is necessary.
Such a review, also considering historical examples from world regions other
than Africa and Europe concerning the legal status of servile labour and
slavery, will allow us to come to assess general principles of law, which
are, next to treaty and customary law, one recognised source of
international law and are generally defined as legal principles common to a
large number of systems of national or municipal law.
Reparation detractors regularly contend that Africans would have enslaved
one another from time immemorial; and that they would have actively and
voluntarily participated in transatlantic enslavement. Both contentions are
of high legal significance because they serve to basically bolster the
allegation that transatlantic slavery would have been legal.
Documents and notes by contemporary European officials testify that
transatlantic slavery was totally different from African servile labour
through the formers complete disregard of the humanity of its victims.
On the ships, sick people and toddlers, weak and prone to sickness, were
often thrown overboard. The average life expectancy of a person enslaved in
the transatlantic system, once he or she passed childhood and was put to
work on the plantation, was five to seven years. In contrast, in African
societies slaves were gradually integrated into the lineage.
Common punishments in transatlantic slavery included putting people into
facial or whole-body gibbets, with metal spikes on the inside; the
utilisation of thumbscrews; extreme lashing and smearing of wounds with salt
and hot pepper; limb amputation; alive muring (being encased within a pit or
walls); covering the enslaved person entirely with honey and then putting
him or her on a tree for days so that bees, ants and mosquitoes would cover
and bite every inch of the body.
No laws protected the African from any cruelty the European masters could
conceive. Men, women, and children were at their complete mercy.
The enslaved person could be roasted over a slow-burning fire, left to die
after having both legs and arms broken, oiled and greased and then set afire
while hanging from a trees limb, or be killed slowly as the slave owner cut
the enslaved persons phallus or breasts.
A person could be placed on the ground, stomach first, stretched so that
each hand was tied to a pole and each foot was tied to a pole. Then the
slave master would beat the persons naked body until the flesh was torn off
the buttocks and the blood ran down to the ground.
The Middle Passage from Africa to the plantation colonies took approximately
three months during which the people remained enchained in darkness in
minimum space, the living, sick and dead side by side, laying in their
excrements and vomit, and without any possibility of movement.
No reparation detractor has ever been able to come up with documentation of
any such institutionalised barbarities happening in pre-Maafa African
slavery because they simply did not exist there.
The eminent historian Basil Davidson pointed out that at the beginning of
transatlantic slavery semantic manipulation was employed by European traders
to justify their dealings. It is important to see clearly and acknowledge
that this very same manipulative argument is still used today to fend off
reparations claims.
In its indigenous form, slavery had functioned on the edge of society.
Generally, slaves were people who had failed to pay debts, been convicted of
crimes, seized in war, or transferred as compensation for damages.
As in Europe, the causes that could justify war were limited to the
violation of interstate treaties which had been sealed with the respective
national oaths; the harming of envoys and the failure of the violating state
to make reparation for the violation; the support of an enemy during war by
a hitherto friendly or tributary state; and the defence of a state against
an aggressor.
Some acknowledged rules for the conduct of war also existed. For example,
the lives of innocents were to be spared as far as possible, and sacred
groves were considered inviolable.
Domestic slavery also played the role prisons serve in industrialised
societies. There is ample evidence that domestic slavery was a marginal
economic and social force before transatlantic slavery took off.
In fact, domestic slavery became a significant phenomenon in Africa only by
the nineteenth century when it was influenced by global forces and demand.
One effect of transatlantic slavery was the corruption of indigenous legal
institutions. Instead of resorting to traditional legal means of redress,
the corrupt powerful turned to the slave trade. Many African rulers who
traded slaves with Europeans acted without the constitutionally proscribed
advice or consent of other gremia (advisory/decision-taking bodies). Such
agreements of slave trading were thus contrary to customary law and
illegal.
Comprehensive reparations must also provide means for thorough investigation
into these developments that are at the root of numerous grave problems and
conflicts in African society today.
The vast majority of those deported to the Americas were neither criminals
nor war captives, but people kidnapped in raids. When talking about African
collaboration, it is important to remain conscious of the fact that
throughout the long centuries of transatlantic slavery, many African people
and leaders fought with all their might to stop this massive crime.
What is essential to retain is that, just because some individual African
rulers were corrupt and participated criminally in transatlantic slavery,
this does not mean that chattel slavery had been lawful in their respective
countries.
African resistance and attacks on transatlantic slavers and trading posts
bear witness that transatlantic slavery was not considered normal and
legal in the eyes of the African majority, but as decidedly illicit.
This is the reason why, wherever possible, as in Saint-Louis and Gorée
(Senegal), James (Gambia), and Bance (Sierra Leone), slave dungeons were
located on islands to render escapes and attacks difficult.
African people opposed transatlantic slavery to the extent that in some
areas, such as Guinea-Bissau, Europeans gave instructions that as soon as
people approached their ships the crew is ordered to take up arms, the
cannons are aimed, and the fuses are lighted.
One must, without any hesitation, shoot at them and not spare them. The
loss of the vessel and the life of the crew are at stake. From the early
16th century onwards, it is documented that ships belonging to an African
fraternity patrolled in the Gulf of Guinea, with their crews of 60 and
more armed men.
Such resistance was also put up by various chiefs and kings. Until the
mid-18th century the entire countryside from Sierra Leone to Cape Mount was
rife with rebellions against transatlantic slavery.
Not a single year passed without groups of Africans attacking some slave
vessel. People succeeded in establishing free zones on the coast and
attracting runaway slaves from all over the area.
Tragically, the resistance of African leaders and people did not prevail
because Europeans supplied fire-arms to African rulers and individuals who
were ready to enslave others. This scheme resulted in a situation where the
choice for most Africans became one of being enslaved or enslaving others.
In the 18th century alone, between 283 000 and 394 000 guns were imported
into Africa each year by European traders. At least 20 million guns were
sold to African merchants in total during the time of transatlantic slavery.
Between 1750 and 1807, England sold massive quantities of both gunpowder and
lead annually.
These arms exports were controlled by European states, as can be seen by
means of the many examples cited here. Wars were often-times directly
stimulated by European states in order to produce slaves for their use. For
many regions, the relationship between gun importation by Europeans and the
expansion of transatlantic slavery has been clearly established.
Looking at our world, any sound-thinking person should easily see that it is
in serious and urgent need of re-balancing and healing, if we are to stay
here. Transatlantic slavery reparation is fundamental to this healing. New
African
Thé Mulindwas Communication Group
"With Yoweri Museveni and Dr. Kiiza Besigye Uganda is in anarchy"
Kuungana Mulindwa Mawasiliano Kikundi
"Pamoja na Yoweri Museveni na Dk. Kiiza Besigye Uganda ni katika machafuko"
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