Here follow extracts from Lord Anthony Gifford QC's book 'The Passionate Advocate'. The chapters are 'The Case for Reparations' and 'Reparations Revisited'.
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THE CASE FOR REPARATIONS
In 1992, when I was building my Jamaican practice, I received a request from Dudley Thompson who was then Jamaican High Commissioner to Nigeria. He asked me if I would prepare a paper to be delivered to the First Pan African Conference on Reparations, to be held in Abuja, the capital of Nigeria. He wanted me to research the legal basis of the concept that African peoples should receive reparations for the damage done by the transatlantic slave trade and the institution of slavery in the Americas.
It was an awesome request. In essence he wanted me to write a legal opinion
for the benefit of Africans and their descendants in the African diaspora -
hundreds of millions of people spread over the continents of African, North and
South America, the Caribbean and Europe - as to whether they had grounds to make
a claim against the nations of Europe and the United States which had been
enriched by the profits which they gained from trading in and owning slaves.
The Conference was to bring together some of the most remarkable people I have known. Dudley Thompson, the veteran of the Jomo Kenyatta trial, had become a friend since the time that I first met him after my visit to Grenada in 1983. He had defended me when I was excluded from the Grenada Bar. His remarkable life included service in the Royal Air Force during the Second World War and practising law in colonial Kenya and Tanganyika. He became Minister of Security and later of Foreign Affairs in the Michael Manley administration in the 1970s. Throughout his life he had been an ardent Pan-Africanist, and he had attended the Fifth Pan-African Congress in Manchester in 1945. When Manley was re-elected as Prime Minister in 1989, he appointed Dudley as Jamaica's diplomatic representative to the continent of Africa. There could be no more fitting appointment. From his High Commission in Lagos he acted as, in effect, the ambassador of the whole Caribbean to the whole of Africa. Then in his mid-seventies, he took on the task with incredible energy.
So when I received his request, I knew that it was something to be taken very
seriously. I had learnt about the issue of reparations from another remarkable
man who also had become my friend, Bernie Grant, the Member of Parliament for
Tottenham in North London. We had become close during the time of the Broadwater
Farm Inquiry which I had chaired in 1985-86. He was the most radical and
outspoken of the four Black MPs elected in 1987.
One of his initiatives was to found the African Reparations Movement in Britain. He had explained to me how there could be no real equality between Black and White people in Britain until Britain faced up to its infamous role in the transatlantic slave trade and was prepared to negotiate some form of reparation with Black people. When I moved to Jamaica the issue arose again, as a Committee on Reparations had also been formed in Jamaica in 1991 under the leadership of George Nelson. I had been invited to some of its meetings, and had been asked to do some work on the legal issues, even before Dudley Thompson had contacted me.
The catalyst for awakening the concept of reparations in Africa itself was supplied by another larger-than-life individual, Chief Moshood ('M.K.O.') Abiola of Nigeria. He was a multimillionaire businessman who at the beginning of 1993 had been selected as one of the two candidates to be president of Nigeria. Nigeria was then under the control of the Armed Forces Ruling Council which had seized power in 1985. The head of state was General Ibrahim Babangida who had agreed to restore democracy through elections to be held in June 1993. Chief Abiola had for some years been pushing the case for reparations. He was chairman of the Group of Eminent Persons on Reparations to Africa and Africans in the Diaspora, which had been set up by the Organisation of African Unity by a resolution passed in June 1991. He had led a delegation to Gorée Island in Senegal, the point of no return for millions of the African captives shipped across the Atlantic Ocean. Dudley Thompson was part of that delegation and had been appointed rapporteur of the Group of Eminent Persons.
Chief Abiola had the reputation of being a capitalist who retained a deep sense of honour and generosity. He had made a lot of money, but also used his money in the education and upliftment of his people. The cause of reparations was his supreme act of philanthropy. He spent large amounts of his own fortune in promoting the cause. The Pan-African Conference was largely financed by him. I met him first in Jamaica when he visited on a mission to promote the conference. He arrived in his personal Boeing 707 jet, but was very late. He had been delayed by the United States authorities who could not believe that a Black African was the owner of such a plane. He spoke with contemptuous wit about his experience that morning in Washington. "Next time", he had told the Americans, "I shall bring my 747." His message to Jamaicans was encapsulated in a quote from a speech he made in 1992: "While we demand reparations in order to enforce justice, to feed the poor, to teach the illiterate and to house the homeless, this crusade is also important because only reparations can heal our land, comfort our souls and restore our self-respect."
Other members of the Group of Eminent Persons included Professors Ali Mazrui
of Kenya and Ade Ajayi of Nigeria; Congressman Ronald Dellums of the United
States; Dr. M'Bow, the former director of UNESCO; the international singer
Miriam Makeba; and Graca Machel whom I knew and greatly admired from my links
with Mozambique. These were the people who were organising the conference to be
held in Abuja, Nigeria, on 27th to 29th April 1993.
I took it as an exceptional honour that this Group had asked me, a White British lawyer, to prepare a paper on the legal aspects of the issue. At the back of my mind there was also the knowledge that my own family had played a role in the destruction of Africa. The third Lord Gifford had been a senior officer in the force led by Sir Garnet Wolseley which had waged the Ashanti Campaign in Ghana in 1873-4.
In 1991 I had been visiting Ghana at the invitation of President Rawlings, to take part in the process of drafting a democratic constitution for Ghana. I had visited Cape Coast Castle, where in the museum I had seen an engraving which depicted Lord Gifford subduing an Ashanti village. Later in the visit I went to Kumasi, capital of the Ashanti people, and had an audience with the Asantehema, the Queen Mother of the Ashantis. I made an apology for the crimes committed by my ancestor against the Ashanti people, and said that I came to Kumasi with a quite different spirit. She thanked me and said that "the Ashanti bear no personal grudge against the British." It was my small personal act of reparation.
I was not an expert in international law, so I took time on a visit to London to read some of the leading text books. I found that the concept of reparation was well established in international law. The Permanent Court of International Justice had defined the principle in 1928 in the Chorzow Factory case between Germany and Poland. "Reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed." Restitution in kind, and payment of compensation, were the main forms of reparation imposed by international law.
I recognised that there were formidable questions which any serious proponent of the claim for reparations had to answer. Was the slave trade contrary to international law? Were there any relevant precedents? Did it all happen too long ago? Who would be entitled to make the claim? Who would the claim be made against? What would be the components of the claim? And in what court or tribunal could it be made? These are basic questions which arise in the daily life of an advocate. But in the context of a slave trade covering several centuries and continents, affecting tens of millions of Africans and African descendants, it was a challenge to try to answer them.
I started the paper with some biographical facts about my involvement in the
struggles against colonialism and racism. I said that to me as a lawyer it was
essential to locate the claim for reparations within a framework of law and
justice. It should not be merely an appeal to the conscience of the White world.
I noted that blatant racist advertising in Britain had not been stopped until
laws were passed which forbade it. Apartheid in South Africa began to crumble as
it became regarded as a crime against humanity and a threat to peace, so that
international sanctions could be imposed. These examples showed that the demand
for justice and legality is an essential element in the struggle for a just
I continued with words which I stand by today: "So it is with the claim for Reparations. Indeed, once you accept, as I do, the truth of three propositions: (a) that the mass kidnap and enslavement of Africans was the most wicked criminal enterprise in recorded human history; (b) that no compensation was ever paid by any of the perpetrators to any of the sufferers; and (c) that the consequences of the crime continue to be massive, both in terms of the enrichment of the descendants of the perpetrators, and in terms of the impoverishment of Africans and the descendants of Africans; then the justice of the claim for Reparations is proved beyond reasonable doubt."
To answer the crucial questions, I developed the three propositions into
The first was that the enslavement of Africans was a crime against humanity. I cited the Charter of the Nuremberg War Crimes Tribunal, which defined crimes against humanity as: "Murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population... whether or not in violation of the domestic law where perpetrated." I referred to the Genocide Convention, which did not create a new international crime but gave it new and more effective legal form. It recognised genocide as a crime against international law, and defined genocide as being "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such". The invasion of African territories, the mass capture of Africans, the horrors of the middle passage, the sale and use of Africans as worse than beasts, the extermination of family life, culture and language, were violations of these international laws.
I have never accepted the argument that because the slave trade was legal
under the British laws of the time, it could not have been a crime against
international law. The Nuremberg Charter dealt with that argument, which might
have been used in the context of laws passed by the elected Nazi Government in
Germany, in the last part of the definition quoted above. As international law
experts have written, acts which are so reprehensible as to offend the
conscience of mankind, directed against civilian populations, are crimes in
international law and always have been. The criterion is the conscience of
decent human beings (who in Britain were indeed outraged by the slave trade) not
the standards of those who perpetrated and condoned the crimes.
Nor am I impressed with the comment that African societies themselves permitted slavery, or that many Africans helped the slave traders by capturing and selling the people who were transported. The peculiar cruelties of the transatlantic trade, and the subsequent conditions of slavery in the Americas, were infinitely worse than the indigenous African practices of enslaving prisoners of war or criminals. Africans did not treat each other as racially inferior, subhuman beings. Africans did not imprison each other in stinking dungeons or crowd them into the holds of ships with less space than pigs in a sty. Africans did not work slaves to death because it was cheaper to replace them than to keep them alive.
Every book you can read about the transatlantic slave trade will confirm to you that its barbarities were not paralleled in history until Nazi Germany imposed its 'final solution' on the Jews. As for the culpability of the African slave dealers, it is a sad but inevitable fact that every large scale criminal enterprise will attract collaborators. Some are seduced by greed, some are coerced by intimidation. The participation of Africans in the capture of their fellow Africans does not, to my mind, detract from the culpability of those who promoted and organised the trade. It was Europeans who created the transatlantic slave trade. It was Europeans who demanded an ever-increasing pool of slave labour to work in their plantations. It was Europeans who were determined to enrich themselves without regard to the suffering of those who created their wealth. It was Europeans who created the market for the trafficking in people on a massive scale - between 12 and 25 million captives snatched from their homes and families. In my assessment the transatlantic slave trade, and the institution of slavery in the Americas, were the ultimate crimes against humanity, because they depended on the denial of human status, on racial grounds, to a vast section of humanity.
My second proposition was that international law recognises that those who
commit crimes against humanity must make reparation. I noted some of the modern
examples of reparation. The Federal Republic of Germany had reached agreement
for the payment of reparations to Israel, following a claim by Israel for the
cost of resettling half a million Jews who had fled from Nazi controlled
countries. Austria also agreed to make reparation payments to holocaust
survivors. The governments which made the payments were not the perpetrators of
the crimes, but they accepted responsibility for the crimes committed by their
Nazi predecessors. Japan had made reparations payments to South Korea for acts
committed during the occupation of Korea by Japan. The United States had passed
the Civil Liberties Act in 1988, giving reparations to Japanese Americans who
had been interned during the Second World War. The Act expressed an
acknowledgment of the "fundamental injustice" which the internees had suffered,
apologised on behalf of the US, and provided restitution to those individuals of
Japanese ancestry who were interned.
I also drew attention to the steps taken to recognise the rights to restitution of indigenous peoples in different parts of the world, whose land had been plundered and whose people had been killed or degraded. In the United States, Canada, New Zealand and Australia, there have been settlements of various kinds, including recognition of rights over land and financial payments. While these have been inadequate gestures, they recognised that the surviving generations of indigenous peoples had the right to a measure of reparation for the crimes committed against their ancestors.
I continued with a third proposition which attacked the argument that it all
happened too long ago. There is no legal barrier to prevent those who suffer the
consequences of crimes against humanity from claiming reparations, even though
the crimes were committed against their ancestors. I argued that in law, the
descendants who still suffer from the consequences of the crime have the right
to restitution as much as the immediate victims.
Under the British Foreign Compensation Act, which provided for reparations for those whose property had been sequestrated in Egypt, a person who is the owner or the successor in title to the owner could make a claim. The descendants of those whose property, including works of art, was seized by the Nazis, have successfully made claims for the restoration of the property. To found a claim which is legally supportable, African claimants would have to show that they, the descendants of the transported captives, continue to suffer the consequences of the crime. I believe that the evidence of this is overwhelming.
I wrote in the paper: "On the African continent, flourishing civilisations were destroyed; ordered systems of government were broken up; millions of citizens were forcibly removed; and a pattern of poverty and underdevelopment directly resulted, which now affects nearly every resident of Africa. In the Americas, the slavery system gave rise to poverty, landlessness, underdevelopment, as well as to the crushing of culture and languages, the loss of identity, the inculcation of inferiority among Black people, and the indoctrination of Whites into a racist mindset - all of which continue to this day to affect the prospects and quality of Black people's lives in the Caribbean, USA, Canada and Europe."
There is no limitation period in international law. The countries which were
damaged by the international slave trade, in Africa and the Americas, had no
means of pressing a claim, because slavery was accompanied with colonialism
which continued into the second half of the twentieth century. Only then could
any former colony speak with independence on behalf of its people. In 1993 I
said: "Indeed I would argue that now, as never before, is the right time for
this claim to be made, as African leaders are speaking with a new confidence and
operating new democratic structures."
I was thinking particularly of the two wealthiest countries of Africa, Nigeria and South Africa, both of which were then on the verge of a transformation to democracy. The claim would be brought on behalf of all Africans, in Africa and the Diaspora, who suffer the consequences of the crime, through the agency of an appropriate representative.
With this proposition I was sailing into uncharted waters. Hundreds of millions of people in different parts of the world had an interest in the issue of reparations. Some minds are so daunted by the practical problems that they conclude that the claim is unrealistic. But, I wrote: "Difficulties of scale or procedures should not be obstacles to justice. The unwillingness of the White world to consider the claim is not a reason for giving it up, but rather a spur to mobilising awareness and support around the issues. Governments in Africa and the Caribbean should neither be excluded from nor have sole control over the prosecution of the claim. Many who still suffer the consequences of slavery, in the United States and Britain for example, had no government which could speak to them. So some form of appropriate, representative and trustworthy body would be required."
The claim would be brought against the governments of those countries which promoted and were enriched by the African slave trade and the institution of slavery. I concentrated on governments because they fostered the trade and allowed it to continue; because they represent the countries which were enriched by the trade; and because they would be responsible for the international conventions and agreements which a reparations package would require. I thought that trying to identify and make claims against individual companies, or the descendants of plantation owners or slave traders, would create many problems in international law. But in the case of works of art, stolen from Africa and held in individual collections, the principle of restitution demanded that they should be returned to the people from whose shores they were taken. The components of the claim would be assessed and formulated in each region affected by the institution of slavery.
With this proposition I was suggesting that the concept of reparations would
cover a wide spectrum of demands. The damage could be classified and researched
under different headings. There was economic damage, cultural damage, social
damage, psychological damage.
Another approach would be to look at the extent of the enrichment of the various slave-trading and slave-owning nations. Recognising that I did not know the answers to the difficult questions which were raised, I sketched the broad elements of a package which might include: an apology by the governments of the slave trading nations to Africans world wide; the cancellation of debt; programmes of development in the inner cities where African descendants suffer still from the racism inculcated in the days of slavery; the rebuilding of the infrastructure of the African continent, once a land of well developed trading networks; facilitation of the return to Africa of those, including Rastafarians, who long to go to the continent from which their ancestors were taken.
I suggested that the very process of formulating and negotiating the claim would be "an educative process through which the horrors of the past will be re-examined". The claim, if not settled by agreement, would be determined by a special international tribunal recognised by all parties. I noted that there was no court which would be competent to hear the claim for reparations.
In cases where reparations had been paid in the past, once the legitimacy of the claim was accepted, the necessary mechanisms were established. A commission was set up to consider claims for reparations for American property confiscated in Iran. With the claim of the Japanese Americans, an Act of Congress was passed. The payment of reparations by Germany to Israel came about by voluntary agreement. I concluded that: "The international recognition of the justice of the claim is a condition precedent to the setting up of any machinery." In accepting the absence of any presently existing judicial body, I was recognising that the reparations claim, while based on legal principle, could only be realised by political agitation and moral persuasion.
The atmosphere at the conference in Abuja was dynamic. There were delegates
from many parts of Africa, the United States, the Caribbean, Brazil and Britain.
President Babangida's message, read by his vice president, opened the
conference. He spoke of the independence and civil rights struggles and
continued: " The reparations movement seeks to preserve and forward the gains of
these earlier struggles, to make Africa progress into the next century and
beyond, and to make our continent and its scattered people one and whole again.
Reparations combine morality with logic and historical necessity by claiming the
right of the injured to compensation. If history demonstrates that Africans have
been injured by slavery and colonialism, and if morality demands that injury be
compensated, then the logic of the reparations movement is established alongside
He warned the conference against seeing reparations as seeking revenge or proceeding in anger and ill-will. The reparations movement had no element of racism, but called upon men and women of all races to help put an end to the hatred and contempt that divided the human race over the past six hundred years.
It was heady stuff. Chief Abiola, chairing the conference with panache,
pledged that if he was elected president in June, he would take the case for
reparations to the United Nations. "Our legs have been broken by slavery and
colonialism, and we must insist that these legs be mended." He concluded that
the claim for reparations was not about vengeance; rather, it is about justice.
"It is justice we demand; by the grace of God, it is justice we will get."
There were messages from the presidents of Senegal and Cuba. The Secretary General of the Organisation of African Unity, Salim Ahmed Salim from Tanzania, said that this was a crusade which went beyond financial considerations. "It will be the overwhelming mobilisation in pursuit of justice, time and space and for the dignity of man." Dudley Thompson gave a speech which vibrated with his passionate Pan-Africanism. He quoted from Dr W.E.B Dubois' speech to the First Pan-African Congress, held in Paris in 1919: "The problem of the 20th century is the problem of the colour line."
He acknowledged the Black leaders who had inspired him: Marcus Garvey, Kwame Nkrumah, Jomo Kenyatta, George Padmore, Toussaint L'Ouverture, Franz Fanon, Martin Luther King, Nelson Mandela. In his person, and through his achievements, Dudley symbolised the re-uniting of African peoples. Pan-Africanism, he said, was not a plea for charity. "It is the burden of this Conference to show that the reparations aspect of Pan-Africanism rests on a basic philosophy as old as justice itself; it rests not only on an unassailable moral ground, but on ancient and modern precedents." He quoted from Dr King's dream that "one day the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood".
I befriended one of the delegates from Brazil, and helped her to translate
her message from Portuguese, learning at the same time how Afro-Brazilians
suffered from "an ideology of the desirability of whiteness", which had led to
"the negation of our racial identity". I listened to Dr Ronald Walters of Howard
University, who led the USA delegation, who spoke of the struggle for
reparations as "yet another chapter in the decolonisation of the African mind."
My own paper was well received by the delegates, but not I think by the European diplomatic observers, who clamoured to have copies. I remembered a recent exchange with a leading Foreign Office diplomat, Sir Anthony Goodenough, whom I had first met when he was high commissioner to Ghana. On hearing that I was preparing a paper on Reparations, he had reacted with consternation, and told me, only half in jest, that the British government should get reparations for their role in suppressing the slave trade after the Abolition Act had been passed. I believe that what disturbs the British profoundly about the concept of reparations is that it changes the whole basis of the dialogue between Black and White, North and South, Europeans and Africans.
Instead of African pleas for aid to be dispensed by a benevolent and kindly
Europe, the Abuja conference demanded justice from a Europe which had committed
crimes. British imperial history has often been characterised by hypocritical
assertions of moral superiority by the colonisers. They went into Africa on a
'civilising mission' and committed barbarities. They brought 'Christian values'
to the Caribbean and allowed slaves to be whipped and worked to death. They
portrayed emancipation in 1838 as a gift from Britannia to grateful slaves,
forgetting that it was only through slave rebellions in the Caribbean and
popular demonstrations in Britain that the ending of slavery was finally
conceded by a ruling class which had resisted the demands for it during the
previous forty years. They paid £20 million in compensation to the slave owners
(roughly 40% of Britain's national budget at the time), and not a penny to the
The Abuja declaration, passed at the end of the Conference, challenged this version of history. It declared that the damage sustained by African peoples was "not a thing of the past, but is painfully manifest in the damaged lives of contemporary Africans from Harlem to Harare, in the damaged economies of the Black world from Guinea to Guyana, from Somalia to Suriname". It drew attention to the historic precedents of reparations paid to Jews and Japanese Americans. It observed that compensation for injustice could be paid both in capital transfer and in other forms of restitution. It declared the delegates' conviction that the claim for reparations was well grounded in international law, and urged the OAU to set up a legal committee on the issue.
In a generous recognition of the unity of Africans, it exhorted African states to grant entrance of right to all persons of African descent, and the right to obtain residence. It urged those countries which were enriched by slavery to give total relief from foreign debt. It called for a permanent African seat on the Security Council of the United Nations.
It emphasised that "what matters is not the guilt but the responsibility of those states and nations whose economic evolution once depended on slave labour and colonialism." It called for the return to Africa of stolen artifacts and traditional treasures. It recommended the setting up of national reparations committees in Africa and the Diaspora. Finally, it called upon the international community "to recognise that there is a unique and unprecedented moral debt owed to the African peoples which has yet to be paid - the debt of compensation to the Africans as the most humiliated and exploited people of the last four hundred years".
I wish that I could say that the Abuja conference led to the case for
reparations being speedily put on the world agenda, as the framers of the Abuja
Declaration had intended. In fact the exhilaration of Abuja was followed within
two months by the disaster of the aborted Nigerian elections.
Everything looked set for the return of democracy in Nigeria. The run-off was between two presidential candidates who were both representative of business interests. Between the two, Chief Abiola appeared the more popular. But after the elections were held on 12th June 1993, the government refused to publish the results. They were leaked on 18th June by the Campaign for Democracy. Chief Abiola had comfortably defeated his rival industrialist, winning 19 out of 30 states. On 23rd June President Babangida announced that the elections had been annulled. The National Electoral Commission was suspended and no further challenges were allowed through the courts of law.
President Babangida stepped down in favour of an interim Head of Government, but the real power was with General Sani Abacha, Minister of Defence, who in November 1993 took power and reinstated military rule. Chief Abiola, who declared himself to be the lawful president, went into hiding and was arrested in June 1994. He remained in prison in humiliating solitary confinement during the whole of General Abacha's military rule, until the general died in May 1998. A month later Chief Abiola also died, still in prison.
The aborting of the election and the imprisonment of Chief Abiola dealt a bitter blow to the campaign for reparations. He was the continent's most vocal spokesman on the issue, and as President of Nigeria he would have had the authority to raise it internationally. Working with Dudley Thompson as Jamaican ambassador, he would have brought together African and Caribbean nations and the broader African diaspora. The campaign would have had resources behind it; after he had gone there was no one able and willing to fund meetings or publications or other initiatives. It was a tragedy for the wider interests of Africa, since I believe that Chief Abiola had the moral stature and political support which would have changed the standing of Nigeria in the world.
As I watched these events unfold, I wondered why they had happened. I never
heard of any convincing reason for the annulment of the elections. It was an
extreme action which shattered Nigeria's image in the world. It seemed so
unnecessary and wrong. I suspected, and still suspect, that a part was played by
Britain and the United States, between them the biggest outside influences on
The coming to power of Chief Abiola was threatening to them, not because of anything in his economic or social programmes, but because of his dominant and determined role in the movement for reparations. The demand for justice which he had proclaimed from the podium at Abuja would have vibrated ominously through the Foreign and Commonwealth Office and the State Department. Had they persuaded General Babangida, in spite of his enthusiastic message to the Conference, that Chief Abiola would not be an acceptable President of Nigeria?
It would be another eight years before the issue of reparations would be mentioned at an international conference in Africa. If the motive for the removal of Chief Abiola had been to set back the cause of reparations, those who planned it had succeeded, at least for a limited time.
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