SECURING OUR AFRICAN RESOURCES FOR OUR OWN BENEFIT

Guest writer and partner in progress Mwarang’ethe responds to a recent article in the Daily Nation that was a reaction to the acceptance speech that President Obama gave in Oslo.
In summary, the article bemoaned the fact that the United States was aggressively waging wars in Iran and Afghanistan where their strategic, national security and commercial interests were at stake while ignoring the commerce- driven conflicts in Africa that are meant to sate the greed of western corporations.
Full article HERE
SOLUTION TO AFRICAN RESOURCE CURSE
LIES IN THE ENFORCEMENT OF PROPERTY
AND NOT IN OBAMA
By
Mwaniki Gachuba III 21st December, 2009 @ gachubah@yahoo.com
In a recent article Professor James Gathii, lamented that “Obama forgot resources wars that are the bane of Africa,” Daily Nation, on 21st December, 2009. In rejoinder, we assert that, the leadership to end African resource wars should come from Professor Gathii and other African lawyers versed with international law and not Mr Obama. This is so because Mr Obama is the head of the Western Empire which has practiced mercantilist acts against Africa and it people for centuries and cannot change how this Empire behaves towards Africa. The reasons are simple and obvious. Through the mercantilist acts this Empire has managed to keep itself rich while impoverishing and killing Africans. One of the most efficient methods this Empire has used against Africa is the deliberate and conscious efforts to ensure non – enforcement of well known property laws in international trade laws.
We therefore, suggest that, since Professor Gathii is well versed with International Economic Law than President Obama may be, he is in a better position to offer leadership on the African “resource curse” than President Obama. We will outline briefly how looting of African resources can be stopped using well known legal principles if Africans versed with international law like Professor Gathii were to offer the required, but, missing leadership.
Article 1 of the International Covenant on Civil and Political Rights declares that: “All peoples may, for their own ends, freely dispose of their natural wealth and resources ... based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.” Taking for instance the example of Congo, it follows that the minerals under the soil in Congo belong to the people of Congo. From this, it must follow that, for there to be free and lawful disposal of these resources, such disposal must be for the ends of Congolese people. Thus, if there is any disposal that is not for their own ends, it amounts to deprivation of people of Congo of their own means of subsistence and therefore, in contravention of known human rights instruments.
In accordance with well known legal principles, if a robber armed with superior weapon takes anyone’s property, such a robber cannot in justice claim to have valid title to that property. It then, follows and must follow that, whoever buys this property, also, does not get a valid title although he may be in possession of the property. There exists no reason why this analogy does not hold true to the natural resources of Congo or of Africa in general. It therefore, follows that, for anyone to be able to dispose and pass over good title to Congolese minerals to foreigners, the people of Congo must have freely consented to such disposal.
However, when it comes to Africa, the above well known legal principle is forgotten. As a result, whoever controls a certain territory by force is wrongly
assumed to have the right to dispose the natural resources in that territory. In other words, might makes right when it comes to African natural resources. By allowing this dangerous principle to stand, the international community has refused to enforce the right of ownership of natural resources enshrined in international human rights instruments to the benefit of Africans.
By so doing, we have perpetuated resource conflicts because, every war lord knows that, all he needs is a few guns to capture and control a certain area and then he will be free to dispose the minerals thereof. More so, those who are excluded from the gravy do their best to retake the territory or if it is a whole nation like Equatorial Guinea, they seek to overthrow the sitting president so as to be able to also dispose these resources themselves. Thus, the failure to enforce rights to natural resources is the root cause of endless violence in Africa over the natural resources.
The reasons as to why the international community has turned a blind eye to this theft are not difficult to discern. Simply, the rich nations which President Obama leads are happy with these arrangements because this ensures access to cheap African minerals no matter who is in power and however he came to power. And, since these raw materials are the basis of the wealth and power of the rich nations, they will do nothing about it. It is from this perspective; we assert that, expecting President Obama to do anything about the resources wars in Africa is a pipe dream.
So, what can we do as African lawyers? A lot, we would say. What Africans lawyers need to do is to fight to bring the trade in African resources under proper market and legal principles of ownership and sale. Under these rules, African lawyers must assert that, the HUMAN RIGHTS of its people are violated when anyone takes by deception, manipulation or force the natural
resources of any African nation. This would mean that, for Africans to be deemed to have consented to sale of their resources, they must have civil liberties and political rights which can enable them to properly scrutinise the sale of their resources.
For instance, when President of Equatorial Guinea sells the oil from his country, it is impossible to assert that the people in this country have consented to such sales. It is so because these people do not know how these sales are conducted, and who gets what. They cannot protest these sales without torture, detention and such other acts.
This being the case, the question is, since the President of Equatorial Guinea sells this oil because he can, i.e. because he can threaten and kill them, does this give him the right to transfer the title to their oil to outsiders? We say no for in simple words, he is stealing the resources of the people of Equatorial Guinea and purporting to sell it for their benefit. Flowing from this, it must follow that he cannot pass a good title of this oil to the buyers. Thus, the buyers of oil from Equatorial Guinea are dealing with stolen goods. Therefore, those who buy and ship these resources while knowing they have been stolen are accomplices in violation of Equatorial Guinea’s people’s right to their natural resources.
Following the above principles, it seems that if African lawyers can organise themselves, they can easily act on behalf of Africans to enforce the property rights of the African people all over the world. The question is how Kenya, Western, Chinese would or Indian courts determine if a ruler or a warlord has the consent of his people to dispose their resources?
We would suggest that, among others, the Freedom House reports which rates both civil liberties and political rights can be brought to bear to demonstrate that these goods are stolen.
In accordance with Freedom House scoring sheet, states like Equatorial Guinea in 2008 was rated 6 on civil rights, 7 on political rights and the status was declared as Not Free.1 By rating Equatorial Guinea at 6 on civil liberties, it means that:
“People in countries and territories with a rating of 6 experience severely restricted rights of expression and association, and there are almost always political prisoners and other manifestations of political terror. These countries may be characterized by a few partial rights, such as some religious and social freedoms, some highly restricted private business activity, and relatively free private discussion.”2
By rating it at 7 on political rights, it means that:
“For countries and territories with a rating of 7, political rights are absent or virtually nonexistent as a result of the extremely oppressive nature of the regime or severe oppression in combination with civil war. States and territories in this group may also be marked by extreme violence or warlord rule that dominates political power in the absence of an authoritative, functioning central government.”
Now, if these are the conditions in Equatorial Guinea, can one say in justice and equity that their natural resources have been disposed in accordance with Article 1 of the International Covenant on Civil and Political Rights? Since it is possible to prove that much of the money from these resources end up in the
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1 http://www.freedomhouse.org/template.cfm?page=22&year=2008&country=7389. (21st December, 2009).
2 http://www.freedomhouse.org/template.cfm?page=351&ana_page=341&year=2008. (21st December, 2009).
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personal accounts of the President and his cronies, it seems that this is not a difficult case to prosecute successfully against companies trafficking stolen goods either in the West or in the African soil. The sums recovered from such buyers would be entrusted to an impartial body for disbursement for the sole benefit of the people of Guinea for instance. More importantly, this would deprive war lords and other petty dictators the means to buy weapons to enslave their own people.
When the Western economic interests were threatened, they entrusted their international lawyers like Louis B. Sohn and R. R. Baxter to work on the “Responsibility of States for Injuries to the Economic Interests of Aliens.” We ask, has the time not come for Professor Gathii to lead a team of African international lawyers in drafting, “Responsibility of Multinationals for Injuries to the Economic Interests of African People Due to Theft of Their Natural Resources?
As usual reader comments and suggestions are welcome. Those interested in joining a dynamic nationwide movement to retake Kenya are encouraged to register so we may start organising.