“The use of law as one of the most important instruments of our African struggle for reparations, indeed the need to locate our claim to restitution for the damages caused by gross violations of African sovereignty must raise immediately for us the essential questions of whose Framework, whose Law and whose Justice”
Kofi Mawuli Klu ‘Charting an Afrikan self-Determined Path of Legal Struggle for Reparations’, A draft paper for presentation to the 11th December 1993 Birmingham Working Conference of the Africa Reparations Movement, UK, 1993
In the above paper jurisconsult Kofi Mawuli Klu advocates the need for Afrikan people to chart our own self-determined path of legal struggle to enforce and secure reparations. However, this requires decolonisation and repair of the law, legal system and processes. Ahead of his time, Klu asserted the self-rehabilitation and healing in a Fanonian sense that comes about through Afrikans exercising agency in the shaping, making and implementation of international law. This model has subsequently been referred to as international law from below by various legal scholars. Klu affirms seven principles which should be followed in charting an Afrikan self-determined path of legal struggle for reparations. These include:
- Demystification of the law.
- Developing legal creativity and creativity in applying what has been referred to as the ‘legal imagination‘.
- Afrikan popular democratic involvement in the law-making process.
- Recognition of the criminal injustice of enslavement, colonisation and neo-colonisation from the perspective of the legal consciousness of Afrikan people.*
- Judging the crimes and wrongs of enslavement in accordance with Afrikan law.
- Promoting mass adjudication of the Afrikan and other indigenous peoples cases for reparations through grassroots benches of an International Peoples Tribunal on Crimes Against Humanity.
- Developing international legal strategies on the formulation and prosecution of the Afrikan case for reparations.
Building on this unrivaled foresight, the ‘Stop the Maangamizi: We Charge Genocide/Ecocide‘ Petition concludes by stating that it “will also galvanise grassroots work towards establishing glocal sittings of the Peoples International Tribunal for Global Justice (PITGJ) as part of a series of actions which will put a full stop, by way of holistic and transformative reparations, to all acts of Genocide/Ecocide against Afrikan people.”
Seizing back Afrikan people’s power to define, make, shape and advocate for legal strategies and processes in our own best interests and in accordance with Afrikan forms of law and jurisprudence, the term Ubuntukgotla has been chosen to give culturally competent expression to the increasingly popular notion of a people’s tribunal.
The Ubuntukgotla/PITGJ is a court of peoples humanity interconnectedness. The term is comprised of the Afrikan terms ubuntu and kgotla. A Kgotla is a Tswana traditional institution of participatory democracy, i.e. peoples assembly or court in Botswana which has a number of functions including: (1) enabling public debate and consultation on policy and legislation; (2) being a judicial institution in which cases are heard providing access to justice; (3) soliciting views from the community on government actions and decisions or those of any other interest group; and (4) facilitating the means to come to an agreement or key issues pertaining to the health and well-being of the community. The term ubuntu which translates as”I am because of who we are” is a concept from the Southern African region which means literally “human-ness”, and is often understood to mean”humanity towards others”. It is also considered, in a more philosophical sense, to mean “the belief in a universal bond of sharing that connects all humanity. In Southern Afrika, ubuntu has come to be used as a term for a kind of humanist philosophy, ethic or ideology, also known as Ubuntuism or Hunhuism propagated in the re-Africanisation process of these countries during the 1980s and 1990s.
The Ubuntukgotla/ PITGJ is being developed as a site of an activist ‘doing of law’ which also includes knowledge-production and praxis on making, enforcing and implementing just law. Although like other peoples tribunals, it may be perceived as a deviant or even illegitimate ‘institution’ within the institutional landscape of dominant forms of law.
Civil society (peoples) tribunals initiated by citizens of conscience and oppressed groups have emerged to fill the normative vacuum created by the gap between the ideals, of justice and access to justice. Oftentimes, peoples’ tribunals have resulted in a greater democratisation of international law-making from below and provided additional accountability mechanisms for the exercise of and abuses/misuse of power by states and international organisations. They have been used by many different peoples and special interest groups.
For example, in 1993 the indigenous people of Hawaii developed the Ka Ho‘okolokolonui Kānaka Maoli-Peoples’ International Tribunal Hawai‘i in which the United States and the state of Hawai‘i were put on trial for crimes against the original people of Hawai‘i, the Kānaka Maoli. A video has been made of this tribunal which we recommend you view. It can be found here: http://www.hawaiianvoice.com/products-page/history-and-sovereignty/the-tribunal/.
The Ka Ho‘okolokolonui Kānaka Maoli Tribunal features a panel of international judges that was convened to hear the charges, which included genocide, ethnocide, the taking of their sovereign government and the destruction of their environment. The Tribunal judges and prosecutor/advocates came from Japan, Aotearoa (New Zealand), Jordan, Korea, Afrika, the U.S., Puerto Rico and the Cree, Cherokee, Shawnee and Creek nations. It traveled to five islands to see and hear firsthand the words and personal experiences of witnesses, many of whom faced arrest and eviction from native lands. At the end of ten days, the Tribuanal called upon the United States and the world to recognize the fact that Hawaian sovereignty has never been extinguished. It also called for the restoration and return of all lands to which Kānaka Maoli have a claim.
How will the Ubuntukgotla/PITGJ operate?
As a people’s tribunal, the Ubuntikgotla/PITGJ derives its power from the voices of Afrikan heritage community victims and survivors, and also those of national and international civil societies with relevant knowledge and expertise to establishing and providing evidence on the concrete manifestations of the Maangamizi including the genocide of Afrikan heritage communities. The PITGJ will have the format of a formal human rights court,however, it is not a criminal court in the sense that individual persons are indicted. In the first instance, the prosecutors will indict the state and institutions of the UK, based on the proofs presented of responsibility for the widespread and systematic crimes against humanity committed in the current phase of the Maangamizi. It is expected that, as support for and the influence of the PITGJ grows, it will be also be able to build the capacity to address other instances of genocidal crimes that have been perpetrated by other peoples who have experienced European settler colonialism, conquest and invasion.
The proof presented will consist of documents, audiovisual materials, statements of witnesses and other recognized legal means. The power of the PITGJ will be to examine the evidence, develop an accurate historical and scientific record and apply principles of international law to the facts as found. It is expected that the chosen judges will produce a verdict based on the material presented and call upon the Government of the UK to realize that so far they have failed to take legal and moral responsibility for the victims. This verdict can also be used as a basis for an United Nations resolution and other actions on these crimes.
How can the Ubuntukgotla/PITGJ contribute to Afrikan people’s empowerment and healing?
- By taking as its primary source the voices, experiences, aspirations, demands and visions for reparatory social change of the peoples’ and communities of the violated themselves, from which all other specialist support groups – lawyers, the media, politicians, institutionalized academics, economists, and others – may build upon by utilizing their specialist languages for resistance in diverse sites of public judgement.
- Through establishing informal but public and ‘judicial’ processes to deal with atrocities committed by States resulting in the moral power and authority of informal quasi judicial processes.
- Through giving effect to Afrikan peoples’ voices of judgement, developing and disseminating the often silenced articulations of Afrikan people’s legality as part of a legal strategy of resistance whose contribution is to advance, through the specific language of law, the broader struggles against the violence of the Maangamizi today.
* Legal Consciousness is the sum of views and ideas expressing the attitude of a group or people toward law, legality, and justice and their concept of what is lawful and unlawful. Legal Consciousness therefore traces the ways in which law is experienced and interpreted by specific individuals and groups as they engage, avoid, or resist the law and legal meanings. Legal consciousness also entails the process by which a group or people concretize their political goals and demands and the means by which they try to give them universal force in the form of laws and policy. It follows that Legal Consciousness is a form of social consciousness and closely related to political consciousness.