Sudan: does it care a damn?

2 March 2020 · Carmel Rickard

The highest court in the United States has just heard argument in a case that could have far-reaching implications for Sudan and perhaps for other countries said to be sponsoring terrorism. It concerns amendments to a key piece of US legislation and whether these amendments could apply retroactively, in this case to Sudan. That state has withdrawn from the litigation, refusing to participate in any way. However, if the court finds the law applies, Sudan could be liable to damages running into billions of US dollars for compensation to victims of terror bombings and their families. Judgment on the question has been reserved, but in the course of argument when the matter came to the US Supreme Court last week, counsel appearing for Sudan let slip an ‘utterance’ seldom heard in such a conservative, formal environment: he said ‘damn’. A quick check shows that a member of South Africa’s highest court has gone even further, putting the word into a formal decision of that court.

Courts and court documents usually epitomise conservative, formal language. Even advocates of simple English find it difficult to persuade some courts and lawyers to dump unnecessary legalisms so that ordinary people can read and understand decisions and related documents. Argument in court by counsel tends to follow the same rule: ‘clean’ language, usually conservative rather than conversational.

But now and then there’s an exception.

Conservative

In the United States, where lawyers and courts are generally as conservative in their language as anywhere in Africa, counsel in a case argued at the US Supreme Court last week has made news. Why? Because he said the word ‘damn’.

Evidence to this effect has been provided in a blog by US Supreme Court reporter, Marcia Coyle. Her blog, topped with a photograph showing the relevant word in its context as part of the transcript of the hearing, has appeared in The National Law Journal, under the headline: ‘A rare “damn” reverberates among US Supreme Court advocates’.

Mild

The mild expletive – she called it an ‘utterance’ – came in the course of argument in the case of Opati v Republic of Sudan. This is a dispute about damages that may be claimed in the USA against foreign states and whether the Foreign Sovereign Immunities Act (FSIA) could be ‘applied retroactively to impose punitive damages on a state sponsor of terrorism.’

The particular litigation follows Al Qaeda’s 1998 bombing of US embassies in Kenya and Tanzania, in which hundreds of people were killed and thousands more injured.

Sudan is being sued by Monicah Okoba Opati and a number of other applicants, most of the petitioners being foreign national employees or contractors of the US government. They themselves or their families were victims of the attacks on the embassy.

Legal ladder

According to the petitioners, Sudan supported the bombings. Opati and others claimed the deaths were ‘extrajudicial killings’ under the FSIA and wanted compensation. As the case has made its way up the legal ladder, it has provoked very different responses from the courts. Though Sudan stopped participating in the litigation during 2009, in 2014 the US District Court for the District of Columbia issued judgment against Sudan for over $10.2b in damages. But there have been other decisions on the matter by the next levels of court hierarchy, including one setting aside that damages award.

Now the US Supreme Court must make a final decision on a crucial question – whether the FSIA, as amended in 2008, may be applied retrospectively so that damages can be imposed on a state that sponsors terrorism, in this case Sudan.

Carnage

All of which suggests that the issues at stake could hardly be more serious: On the one hand, hundreds of people killed in a terrible carnage, thousands more injured and even more whose lives have been irreversibly altered as a result of the bombing. On the other, the question of whether legislation may be applied retroactively against foreign states in connection with terrorist activities that took place before the ‘current version of the statute’.

When this question was argued at the Supreme Court, counsel for Sudan, Christopher Curran, and one of the US Justices, Stephen Breyer, were caught up in an exchange of views that was as intense as befits the subject under debate. Curran noted that an earlier Supreme Court precedent had held that ‘retroactive imposition of punitive damages was a “draconian step” and against the basic principles of fairness.’

As Coyle reports – and as the transcript shows – Curran then added, in his answer to Justice Breyer, ‘So before we attribute that intention [retroactive application] to Congress, we’re going to ask Congress to say it pretty damn clearly.’

Phone call

Coyle writes that when Curran was later asked about his language, via a brief phone call after the hearing, he laughed. ‘I think the term speaks for itself,’ he said.

Though argument is now complete, the Supreme Court has yet to decide and deliver its judgment on the central question, which in turn will affect whether the families affected by the bombings may claim compensation under the FSIA.

Meanwhile, however, what about the language of the courts in the jurisdictions covered by AfricanLII?

Quotations

Where they do appear, and it is not often, most ‘damns’ – or other ‘utterances’ and even expletives – are reproduced in a judgment by way of quotations from evidence given in a case.

So far, the only exception to the results of this admittedly brief search, comes from a South African Constitutional Court decision of 2017. This case, Off-beat Holiday Club v Sanbonani Holiday Spa Shareblock, concerns prescription of a claim.

Debt

There were three judgments in the matter, the second of which was written by Justice Johan Froneman. He dealt with the meaning of the word ‘debt’ canvassed in an earlier case and reproduced that meaning. Then he added these words, ‘This dictionary definition of a “debt” is as near as damn to what our law accepts as constituting a legal obligation.’

That is one step up from the US usage in the Sudan case: there the word was used by counsel in debate with one of the justices in the highest court of the USA; here the word is used, not by counsel, but by one of the justices of the highest court himself, and in a formal decision published by the court.

Carmel Rickard

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