“The several xenophobic attacks constitute serious violations of the human rights guaranteed by several provisions of the Charter, including: failure to adopt effective measures to give effect to Charter rights; Article 2: discrimination based on nationality; and Article 3: denial of equal protection of the law.
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“Others include Article 4: violations of the right to life; Article 5: inhuman and degrading treatment; Article 6: threats to personal liberty and security; Article 12: restrictions on freedom of movement; Article 14: violations of property rights; and Article 18: disruption of family protection.
“The obligation of due diligence under Article 1 requires the State not only to refrain from violations but to actively prevent, investigate, and remedy harm caused by both State and non-State actors. The continued insecurity faced by Nigerians and other African migrants in South Africa undermines the fundamental values of the African human rights system, including dignity, equality, and solidarity.
“This communication presents a critical opportunity for the Commission to exercise its mandate decisively by invoking its protective mandate, applying established jurisprudence, and referring this matter to the African Court for binding adjudication. Such action will ensure justice for victims and reinforce the credibility and effectiveness of regional human rights mechanisms.
“The Commission has consistently held that State responsibility arises from failure to exercise due diligence. The Commission affirmed that failure to prevent and respond to abuses by non-State actors constitutes a violation of the Charter.
“The Commission has held that tolerance of widespread violence and failure to investigate and prosecute perpetrators violates Articles 1 and 4. States must ensure effective protection of rights and provide remedies, including in cases involving systemic violations.
“States must prevent, investigate, and punish violations, even where committed by private actors. Failure to act with due diligence engages State responsibility. Systemic violence combined with State inaction constitutes violations of the rights to life, dignity, and non-discrimination, and requires structural responses.
“Tolerance of patterns of violence and ineffective remedies perpetuates impunity and violates fundamental rights. These principles are directly applicable to the present communication.
“Both African and comparative jurisprudence affirm that victims are entitled to full and effective remedies, including: restitution; compensation; rehabilitation; satisfaction; and guarantees of non-repetition.
“The continued denial of such remedies constitutes an ongoing violation of the Charter.
“This matter meets the threshold for referral under the Protocol and the Commission’s Rules of Procedure, particularly: the serious and widespread nature of the violations; the persistence and recurrence of harm; the lack of effective domestic remedies; and the need for binding and enforceable orders.
“Under Rule 118 of the Rules of Procedure, the Commission is empowered to refer a matter to the Court, especially where there is non-compliance or serious violations. Pursuant to Articles 5(1)(a) and 6(1) of the Protocol, the Commission is expressly authorised to submit cases to the Court, and the Court has jurisdiction under Article 3 to adjudicate such matters.”
Falana therefore called on the African Commission to:
“Be seized of this communication pursuant to Rule 93 of its Rules of Procedure.
“Find that the Republic of South Africa is in violation of its obligations under the African Charter, including Articles 1, 2, 3, 4, 5, 6, 12, 14, and 18.
“Conduct a thorough and independent investigation into ongoing xenophobic violence affecting Nigerians and other African nationals.
“Refer this matter to the African Court on Human and Peoples’ Rights pursuant to Rule 118 and Articles 5(1)(a) and 6(1) of the Protocol, seeking:
“A declaration of violations, adequate compensation and reparation for victims, guarantees of non-repetition, and structural and institutional reforms.
“Invoke Article 58 of the Charter to bring the matter before the Assembly of Heads of State and Government of the African Union as one involving serious or massive violations.
“Call upon the Government of South Africa to ensure accountability for perpetrators, strengthen protection mechanisms for foreign nationals, end incitement to xenophobic violence, and address the structural causes of discrimination and insecurity.”
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