Mulling over the disclosures of vast sums of cash, or debt, amassed through South Africa’s banks during the apartheid period, I recalled a concept that may be irrelevant. Or, it can help us think about eradicating, once and for all, the wrongs of our iniquitous past, and about the differences between reparations, recriminations, vengefulness and justice . . .
Almost a century ago, the idea of odious debt was entered into legal practice to explain the repudiation of debts incurred by dodgy regimes. More specifically, the concept was invoked as a way for a particular regime to refuse to repay a debt incurred by its predecessor, on the basis that the previous order was unjust. This is, of course, a simplified explanation of the concept.
As the kids would say, it’s complicated.
In a society where the only truth is whatever is expressed the loudest, and by persons who consider themselves as “more-radical-than”, there tends to be no logical, reasonable, rational or long-sighted approach to these matters. Demands are made without concern even for justice and fairness, and with little or no deference to jurisprudence.
The exception is, of course, that justice has, sadly, become divisible.
Consider, for instance, the R15-billion that is owed to the City of Johannesburg. The populist view is that it should be written off.
The legal view is that people who owe money should pay their bills. Now add to this gruel thickeners like race, ethnicity, history, transformation, entitlement, unemployment, poverty, vengefulness and recrimination, racism, amnesia and self-righteousness, and we have a rather toxic stew.
Let us go back to the legal issue and think through the red mists that descend on us so often as to distract us from building a more cohesive society with high levels of trust among the population. The concept of odious debt, quite often used in the context of political transitions, packages a specified set of equitable considerations as a means of adjusting or completely writing off debt.
The legal argument seems clear. The odiousness of the debt is based on the belief that the previous regime did not benefit, or was used to repress, all or some of the people in a society.
As a legal argument, I’m not sure whether there is universal agreement. There is, typically, a range of caveats and qualifications submitted to account for differences in understanding of equity and justice.
Equity considerations (and justice) are intrinsic to what the statute of the International Criminal Court of Justice (ICC) stipulates in the “generalised law of civilised nations”.
And so we get to South Africa, that has turned its back on the ICC, and South Africans who are, now, fixated with post-modernist romanticism, and where recriminations, vengefulness, cronyism, corruption and prebendialism have all replaced the idea of restorative justice. Restorative justice focuses, ideally, on harm that has been done to people and communities, establishes liabilities and obligations, including the obligation to do no (further) harm, I would assume, and clears a path for wrongdoers, victims and the community put things right, so to speak.
I am not sure it includes vengefulness, spite, political manipulation or expediency. We do seem to have very many ambulance-chasing politicians.
We should be clear. Reparations are almost always necessary, but there is an argument to be made that it should never be on the basis of revenge, vindictiveness and lining the pockets of elites.
There is little to suggest that whatever reparations are made, they will not go directly into the coffers of political elite.
We have seen this in Haiti where everybody who has ruled the country, at least since the 18th century, has found new ways of stripping the country’s assets through revolutions, slavery, debt, corruption, violence and exploitation. Among the more consistent patterns has been that every regime has sought vengeance against its predecessors.
How, then, do we approach the problem of debt and the lending that propped up apartheid institutions? I leave this to people much better placed.
Of this, I am sure: political economic stability, prosperity, trust, employment creation, education, early childhood development, food security, community safety, excellent public service delivery and securing common pool resources (like water) cannot be provided by revenge and willful destruction. South Africa is too fragile and exposed a country for us to slaughter the most basic needs of the people on an altar of vindictiveness or revenge – which barely conceals greed and avarice.
It is probably futile to discuss legal or inter-generational matters, what type of country we want to leave future generations, or reparations and restorative justice in a firestorm.
Dr Ismail Lagardien is executive dean of business and economics at NMMU.