Xenophobia: Nigeria vs S/Africa application a test case -African Court

By John Chuks Azu

As the Federal Government mulls filing an application before the African Court of Human and Peoples’ Rights against the South African government over the xenophobic attacks against Nigerians, the court says it will be a test case in inter-state applications.

In an emailed message on Monday, the registrar of the court, Robert Eno, said the court “has so far not received any inter-state application.”

Eno said the charter in Article 47-53 of the court dealing with the receipt and consideration of cases brought by one state against another refers to the African Commission, “the same can apply to the court.” He added: “So, this may be a test case.”

Why Nigeria may file an application against S/Africa

A source in the Federal Ministry of Justice had on Thursday hinted that Nigeria may be considering seeking compensation for its citizens who are victims of the attacks in South Africa if diplomatic moves between both countries failed.

The source, who would not want to be named due to the sensitive nature of the matter, said Nigeria would soon file the application to enforce the fundamental rights and freedoms on behalf of its affected citizens and other African nationals in the Arusha, Tanzania-based court.

The legal option is also predicated on Nigeria’s ratification of the Protocol to the African Charter on Human and Peoples Rights on the establishment of an African Court on Human and Peoples Rights on May 20, 2004.

A news wire service, Reuters, had reported that South African Foreign Affairs Minister Naledi Pandor on Thursday said there was no provision in local law for compensation for damage caused in the latest wave of attacks.

The ministry source said the Federal Government has been left with no option but to exercise its duty under international law to protect the rights of its citizens in diaspora.

“It is an elementary principle of international law that a state is entitled to protect its subjects, when injured by acts contrary to international law committed by another state, from whom they have been unable to obtain diplomatic action or international judicial proceedings. A state is in reality asserting its own rights – its right to ensure in the person of its subjects, respect for the rules of international law,” the source said.

“A state is entitled to exercise diplomatic protection according to the present draft articles, especially when a significant injury has occurred; take into account, wherever feasible, the views of injured persons with regard to resort to diplomatic protection and the reparation to be sought; and transfer to the injured person any compensation obtained for the injury.”

The source further stated that: “Nigeria is thus entitled to take actions on this xenophobic attacks on her citizens because South Africa has blatantly and with impunity failed to apply the “National Treatment” principle; treatment equal to that given by South African nationals to foreigners within its territory but consistently encouraged gross violation of the fundamental rights and freedoms of Nigerian citizens living in that country.”

Background, procedures of the African Court

The court was established by virtue of Article 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, (the Protocol) which was adopted by Member States of the then Organization of African Unity (OAU) in Ouagadougou, Burkina Faso, in June 1998. The Protocol came into force on January 25, 2004.

Nigeria and South Africa are among the 30 state parties to the protocol of the court, although only nine countries have made the declaration ratifying the competence of the court to receive cases from NGOs and individuals. The nine (9) states are; Benin, Burkina Faso, Côte d’Ivoire, Gambia, Ghana, Mali, Malawi, Tanzania and Tunisia.

The Charter of the African Commission of Human and Peoples’ Rights, as applicable to the African Court, has provisions for instituting cases among state parties, intergovernmental organisations and non-governmental organisations.

These provisions include:

“Article 47: If a State party to the present Charter has good reasons to believe that another State party to this Charter has violated the provisions of the Charter, it may draw, by written communication, the attention of that State to the matter. This communication shall also be addressed to the Secretary General of the OAU and to the Chairman of the Commission.

“Within three months of the receipt of the communication, the State to which the communication is addressed shall give the enquiring State, written explanation or statement elucidating the matter. This should include as much as possible relevant information relating to the laws and rules of procedure applied and applicable, and the redress already given or course of action available.

“Article 48: If within three months from the date on which the original communication is received by the State to which it is addressed, the issue is not settled to the satisfaction of the two States involved through bilateral negotiation or by any other peaceful procedure, either State shall have the right to submit the matter to the Commission through the Chairman and shall notify the other States involved.

“Article 49: Notwithstanding the provisions of 47, if a State party to the present Charter considers that another State party has violated the provisions of the Charter, it may refer the matter directly to the Commission by addressing a communication to the Chairman, to the Secretary General of the Organization of African Unity and the State concerned.

“Article 50: The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged.”

“Article 51,1: The Commission may ask the States concerned to provide it with all relevant information.

When the Commission is considering the matter, States concerned may be represented before it and submit written or oral representation.
“Article 52: After having obtained from the States concerned and from other sources all the information it deems necessary and after having tried all appropriate means to reach an amicable solution based on the respect of Human and Peoples’ Rights, the Commission shall prepare, within a reasonable period of time from the notification referred to in 48, a report stating the facts and its findings. This report shall be sent to the States concerned and communicated to the Assembly of Heads of State and Government.

“Article 53: While transmitting its report, the Commission may make to the Assembly of Heads of State and Government such recommendations as it deems useful.”

CSOs, lawyers want FG to pursue action

Civil society organisations and a civil rights lawyer have asked the Federal Government and other Heads of Government to challenge the attacks on their nationals in South Africa.

ActionAid Nigeria, while condemning the attacks, called on African governments, and the African Union “to speak with one voice and take the necessary steps in finding a lasting solution to the xenophobic attacks causing rage, loss of lives, and loss of livelihoods on the African Continent.”

The Country Director, ActionAid, Ene Obi, said the attacks which are spurred by poverty and widening inequality, may hurt the Africa Free Trade Agreement if not curtailed.

Also, the Socio-Economic Rights and Accountability Project (SERAP) has asked the African Commission on Human and Peoples’ Rights to sue South Africa and seek $10bn for victims of xenophobic attacks in the country.

In a letter dated September 6, 2019 and addressed to Soyata Maiga, chairperson of the commission, SERAP Director Kolawole Oluwadare said the attacks are a violation of the rights of Nigerians and other Africans.

Also, Senior Advocate of Nigeria, Yusuf Ali said the individuals affected could proceed against those who committed the act in domestic court since they are not multilateral bodies or state actors, adding however that the Federal Government can also pursue justice at regional courts for the victims if it looks at the quantum of losses involved.

For his part, civil rights lawyer, Kayode Ajulo has insisted that Nigerians deserve compensation for “the pillage, not only of our resources but our brains, knowledge, attitude, altitudes, culture and values.”

“The court is empowered to hear cases brought against African states for failure to respect human rights. It is also able to issue binding judgments in such cases and where violations are found, may award compensation and other remedies to victims,” he said.