As a dyed-in-the-wool Pan-Africanist, I cannot adequately express my joy and sense of fulfilment in the ground-breaking resolution of the United Nations General Assembly declaring the Trans Atlantic Slave Trade as “the gravest crime against humanity”, spearheaded by our own President John Mahama.
This was a momentous achievement which will make great Pan-Africanists ― Marcus Garvey, W.E.B. Du-Bois, Patrice Lumumba, Nelson Mandela, Haile Selassie ― feel proud in their graves.
It is befitting that Ghana, a hotbed of Pan-Africanism, championed and sponsored the resolution. Ayekoo to the President and Foreign Minister.
This epic achievement has, however, reopened one of the oldest and most important debates in legal philosophy: what is law?
Is law simply what authorities decree, or must law attain a higher standard of morality and justice?
The opposition of Israel and the abstention of England to the resolution, on the grounds of intertemporality and non-retroactivity in international law, may be legally defensible within a narrow positivist framework, but morally, it exposes the deep inadequacy of legal positivism when confronted with historical injustice.
To those not familiar with legal theory [jurisprudence], legal positivism in its most basic form posits that law is law because it is enacted by legitimate authority. Whether it is moral or immoral is irrelevant.
As long as the law has gone through the stages of a bill in parliament, been passed and received a presidential assent, it’s good to go.
Similarly, in a dictatorship, the pronouncements of the dictator become law and, in both cases, citizens are obliged to obey them.
That argument or scenario inexorably leads to an uncomfortable and deeply troubling conclusion: slavery was legal, therefore slavery was acceptable, at least in legal terms.
Reality
The reality of history is a rather different kettle of fish.
The Trans-Atlantic Slave Trade was a grave crime against humanity par excellence.
Millions of our ancestors were kidnapped, shackled, transported across the ocean in horrifying conditions and sold like commodities.
Families were destroyed, cultures were shattered, and generations were condemned to suffering.
Yet all this was done under the cover of legality.
Laws were enacted, charters were granted, ships sailed with official approval, and courts enforced property rights over human beings.
If we accept strict legal positivism, then we must also accept that their barbarities were lawful and therefore legitimate at the same time.
Such a conclusion not only affronts reason but conscience as well.
Indispensability
Therein lies the indispensability of natural law and moral jurisprudence.
Natural law thinkers, from Thomas Aquinas to modern philosophers like Ronald Dworkin, argue that law must be grounded in morality.
According to this view, unjust laws are not true laws.
They may carry the appearance of legality but they lack moral legitimacy and therefore should not command obedience.
This is not merely philosophical theory; it is the moral foundation upon which modern human rights law rests.
The world should take a cue from the Nuremberg trials after the Second World War.
Nazi officials defended themselves at the Nuremberg trials by arguing that they were merely following orders, legitimately enacted.
The tribunal rejected that argument and held that there are higher principles of justice which transcended the domestic law of Germany at that time.
The moral of the story: crimes against humanity remain crimes, even when committed under legal authority.
The same principle applies to slavery.
To say that condemning the slave trade violates inter temporality or non-retroactivity is to prioritise technical legal doctrines over moral truth.
It is to suggest that historical wrongs must remain beyond moral judgement simply because they were once legal.
That position risks turning law into a shield for injustice.
Hail
It is in this context that all must hail the spectacular effort of Ghana in pulling off this feat, which has such gargantuan ramifications.
Even though the resolution lacks enforcement power, it is a giant step forward in eventually making a case for the payment of reparations for the heinous crimes of slavery.
As a descendant of a slave on my father’s side, I feel this issue personally.
From my research, one of my ancestors was captured in Ghana, enslaved in Jamaica, given the name Shaw by his slave master, rebelled and became a maroon [Fantes who escaped the plantation and, led by Nanny – now the national hero of Jamaica ― deployed guerrilla tactics against the British] before being transported to Sierra Leone once he gained his freedom.
Burning Spear’s classic song on slavery, “Do you remember the days of slavery?” on my mind!
