A Case of Holding Corporations Accountable: South Africa

During the "business hearings" of the Truth and Reconciliation Commission of South Africa (TRC), the relationship between apartheid and the economy, the role of business, government and trade unions were examined. "No one admits today to having supported apartheid", commented Archbishop Desmond Tutu, chairperson of the TRC, in his opening remarks to the hearings. Given the internal political constraints of the TRC, it is unfortunate that the binding precedents of international human rights instruments guaranteeing economic rights and condemning apartheid as a crime against humanity were not invoked in these hearings to hold business accountable for human rights violations under apartheid during the period of the TRC's investigation. The international condemnations of apartheid over decades as well as other human rights instruments overlap to provide norms and standards which govern economic life.

The TRC's precedential contributions toward establishing a framework and principles in the universal quest for holding perpetuators of human rights violations accountable for their crimes.

1. The TRC succeeded in implementing the concept of corporate accountability in the context of a State entity and through a public, transparent process even with its inherent constraints as a negotiated reform and in the reality of the new Government's dependency relationship with apartheid-era businesses. The TRC treated businesses' representatives with the same equality as other witnesses, and did not accord them the privileges to which they had been accustomed during apartheid. The hearings enabled the TRC to make an historical record and, through this process, put businesses on notice that present and future violations will not be condoned. The efforts of white businesses to expunge their crimes from history and, in that process, revise that history, had simply failed.
2. The findings of the Final Report on business removed the distinction between the public and the private spheres in an apartheid society in which a legislated racial context governed everyone's every activity, from cradle to grave. They dispelled the notion that business existed in a political vacuum, and rejected the view that the economic sector functions separately from and outside of its political environment. They discredited the position that 'private' white businesses were not affected by and did not benefit from apartheid legislation. On the contrary, the findings support that in the nexus of the economic and political spheres, a profitable, symbiotic relationship for white businesses, particularly with the military/security machine of the State, was fostered. While the report concludes that most white businesses benefitted from the racial structures of apartheid, it acknowledged that the levels of benefit and involvement varied.
3. The findings affirmed the collusion and complicity of business with apartheid, and detailed that at least over the more than three decades of apartheid's rule, business was a linchpin in the military/industrial/security complex of South Africa's repressive and authoritarian regime.
4. The TRC, unique among truth commissions to examine the role of business in a previous authoritarian regime, set a precedent for expanding the definition of human rights violations to include economic issues and for broadening the definition of perpetuators of human rights violations to include business entities, going beyond State actors in official capacities in governmental and military/security positions. This is important in the context of struggles to hold private corporate entities accountable for human rights violations and the efforts of non-governmental organisations to include socio-economic crimes in international criminal codes, such as the Rome Statute for the Establishment of an International Criminal Court.

(excerpts from: Beth S. Lyons, Getting to Accountability: Business, Apartheid and Human Rights, Netherlands Quarterly of Human Rights, vol. 17, no. 2, June 1999, pp. 135-160).