The US Supreme Court on Monday listened to claims by hundreds of Kenyans and Tanzanians that they should receive $4.3 billion from Sudan in punitive damages as partial compensation for the 1998 embassy bombings.
The members of the highest US court appeared sympathetic to the case brought by 567 persons who were injured or who are relatives of some of those killed in the attacks in Nairobi and Dar es Salaam.
At issue is whether the government of Sudan must pay the $4.3 billion in punitive damages in addition to nearly $6 billion already approved as compensatory damages for the victims.
According to a lower ruling now under review by the Supreme Court, Sudan does not have to pay punitive damages because the 2008 US law on which those claims are based, cannot be applied retroactively to losses sustained 10 years earlier.
Conservative Supreme Court Justice Neil Gorsuch suggested on Monday, however, that Sudan should not be absolved from making one set of payments when it is being held liable for making another.
“If we agree that compensatory damages apply retroactively, on what account does it make sense to speak of punitive damages not also applying retroactively, given that it's authorised by the same statute?” he asked.
$60 BILLION DEBT
The Supreme Court will rule on the $4.3 billion award prior to the end of its term in June.
Regardless of what the justices decide, it is unlikely that the Kenyan and Tanzanian plaintiffs will receive anything close to the sums approved or in dispute.
Sudan, with a national debt of roughly $60 billion, has maintained in discussions with the Kenyans' and Tanzanians' attorneys that it cannot agree to a multi-billion-dollar settlement.
Earlier this month, Sudan announced that it had reached a settlement with victims of al-Qaeda's attack in 2000 on the USS Cole that killed 17 US Navy sailors.
Sudan paid those plaintiffs a total $70 million, the Associated Press reported.
The new reformist government in Khartoum, which has won favour in Washington, could look to the Donald Trump administration for behind-the-scenes support for its position in the embassy bombing case.
But the US solicitor-general, appointed by the president to represent the government in Supreme Court cases, has sided with the Kenyans and Tanzanians in their suit against Sudan.
If the Supreme Court rules in favour of punitive damages, attorneys for the plaintiffs can be expected to use that leverage to win a more generous settlement.
Sudan, on its part, is eager to resolve this legal dispute which is one of the factors that the US cites in declining to remove Sudan from a terrorist blacklist.
Erasing that designation, originally made in 1993, can earn Sudan access to the global financial system.
Prime Minister Abdalla Hamdok told the Wall Street Journal in December that the Sudan government would come to terms with the embassy bombing plaintiffs “in weeks, not months.”
Some of the Kenyans and Tanzanians involved in the Supreme Court case were injured while they were employed directly by the US embassies or by private contractors who did business with the embassies.
The rest of the 567 plaintiffs are relatives of embassy or contractor employees killed or hurt in the blasts.
The bombings, planned by Osama bin Laden while he was living in Sudan, took a total of 224 lives and injured thousands of people.
None of the potential total of $10.2 billion in damages will be available to any of Kenyans or Tanzanians who were harmed by the attacks but who were not employed by the US embassies or contractors.
Litigation involving that large group of victims has been stalled in the US court system for several years and is not expected to reach a settlement anytime soon.