Xenophobic Attack: Options for Nigeria under international law

The on-going xenophobic attack on Nigerians in South Africa is one scourge that puts Nigerian government in a dilemma on the appropriate decision that should be taken to end the impunity. In this piece, Chinonso Emmanuel Nwoye, explores the options available to Nigeria under international laws to end the rights violation of Nigerians in South Africa.

One can argue that diplomacy and friendly relations, as a practice, have grown in leaps and bounds. This is because since the crystallization of the United Nations, after the collapse of the League of Nations, lots of treaties have been negotiated by countries to secure various forms of interests. Interests ranging from economic, to political, even down to avoiding the outbreak of hostilities and wars.

Countries that are not necessarily on the same page on global issues have found a way to navigate their troubled waters to “reduce” casualties that can occur with the outbreak of hostilities. This victory is however not totalitarian, as incidents still occur to deduct from the success credentials of international relations and even International Law generally. These happenings make us question whether it is even relevant to have diplomatic relations between states.

A close look at the Nigeria-South Africa relations would reveal that it has been both good and bad, and have generally been dwindling because of interests. It is for instance, no more news, the level of support Nigeria gave South Africa during the apartheid era and the Big Brother role that was played at the time. However, much of South Africa’s good will towards Nigerians seem to have disappeared due to activities of Nigerian Organized Crime in the country, we have been accused of mostly involvement in drug trafficking and other worrisome activities. Relations also worsened with the two countries competing for positions at multilateral organizations, like the dichotomy between the two countries on the issue of Jean Ping and Nkosazana Dlamini-Zuma on the position of the chairmanship of the African Union, the different positions taken by the two nations on Laurent Gbagbo in the control of Cote d’ivoire, Nelson Mandela’s open criticism for the late General Sani Abacha when he went ahead to execute Ken Saro Wiwa and the 9 Ogoni elders, in spite of Mandela’s efforts, the list is endless.

Xenophobic attacks on Nigerians and other African nations have become rampant and it is certainly no more news that Nigerians in South Africa currently live with their eyes wide open even in the middle of the Night because no one knows who would be the next victim of circumstance. There have been lots of clamour in many quarters that Nigerians should retaliate the attacks by feasting heavily on the South African heavy laden investments in Nigeria as a payback. Investments such as “DSTV (Multichoice), Shoprite, MTN Nigeria, Pep Stores, Spar, Protea Hotel, amongst others. Other schools have it that such move may not be in Nigeria’s best interest, seeing the level of funds Nigeria generates from these companies in taxation.

This paper seeks to explore the options open to Nigeria to end this impunity against Nigerians in South Africa.

It is needless to state that of all the African Countries, Nigeria possesses the highest migration tendencies to all parts of Africa and arguably the globe. There is this general joke of “do not live in a country where a Nigerian does not reside”. It is a joke that is largely used to depict the reality that Nigerians live everywhere around the world in their numbers.

One of the core responsibilities of every government is to protect her citizens both locally and internationally. It has been one of the marks of strong nations from time immemorial. I remember like yesterday, the level of pressure the United States mounted on Turkey to release Andrew Brunson whom Turkish authorities arrested for his alleged role in a failed coup.

Maximum pressure was exerted on Turkey until he was released. It is uncommon to hear that American or British citizens are killed anywhere in the world without strong reactions from their host countries.

In 2016, a Nigerian was executed in Indonesia for his alleged involvement in drug trafficking in spite of how much outcry he had over an unfair trial procedure. After that execution, Australia immediately severed diplomatic ties with Indonesia and recalled her diplomatic team. As usual, Nigeria did nothing. These instances are many and have become the reason we are perceived as generally weak in the international community.

1. The continuous attack on Nigerians in South Africa is a gross violation of the Fundamental Human Right of those Nigerians living in South Africa. The right to life and other human rights are the fulcrum of the Universal Declaration of Human Rights (UDHR), which nearly, if not all countries of the world are signatory to, including South Africa.

In Article 1 of the UDHR, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”.

Article 2 of the Charter further states that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty”

It is clear that South Africa does not understand the import of the above provisions of that 1948 charter.

Further on the Human Rights issue, there is a more ‘at home” charter which South Africa is constantly running foul of, which is the African Charter on Human & Peoples Rights (Popularly known as the Banjul Charter) which the two countries are signatory to. Article 4 of the ACHPR is to the effect that Human beings are inviolable and that there must be dignity & respect for the life and integrity of a person.

Article 12 of the same ACHPR provides that“Every individual shall have the right to leave any country including his own and return to his country …”

South Africa has clearly been in breach of these core provisions of the Charter by failing to protect the rights of Nigerians living in their country.

2. Another core issue which South Africa has breached is the United Nations Convention Against Torture. Article 1 of the convention reads thus

“For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

Article 2(1) further states that “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”.

This is where I find that South Africa appears not to be doing enough to stem the tide, other than continuous press statements either accepting or outright denying the reality of the attacks against Nigerians. South Africa has clearly not done enough to comply with Article 1 of the UNCAT, a treaty which she is signatory to. The story of the Nigerians burnt to death remain a huge scare and a clear violation of the Convention against torture.

ARTICLE 2 (2) states that “
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Article 2 (3) further states that
“An order from a superior officer or a public authority may not be invoked as a justification of torture.”

Also, Article 5 of the UDHR states thus: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”

A combined reading of all the provisions of the above statutes, shows that South Africa can be held responsible. They have failed to uphold their commitment to the letters and spirit of International Law treaties which they are signatory to.

Article 4. 1 says Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Article 5. 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;

(c) When the victim is a national of that State if that State considers it appropriate.

The responsibility to prosecute persons for torture under Article 7 the United Nations Convention Against Torture was given a judicial recognition in the case of Belgium V. Senegal, popularly known as the trial of Habre, where in examining the question of the implementation of the obligation to prosecute, the court concluded that the obligation laid down in Article 7, paragraph 1, requires that a country takes all measures necessary for its implementation as soon as possible.

The steps provided by this write up are both academic and strategic but most importantly, the aim is to end the wanton killings of our brothers who committed no crime by living in a foreign land.

1. Nigeria should invoke the doctrine of “State Responsibility” under the International Law Commission. State Responsibility and “International Liability” have become “jus cogens” a peremptory international law norm. It is settled International Law Principle that “every internationally wrongful act of a State entails the international responsibility of that State” and in this case, South Africa’s unwillingness to act through her police force, can be deemed to be an omission which also qualifies as an international wrongful act. There is no doubt that South Africa is signatory to at least two important treaties which bestow on them, the responsibility to act on this current xenophobic attacks but till date, not much progress have been made to have a perpetrator brought to book. There has been little or nothing also done about the responsibility of South Africa to protect the properties of Nigerians (part of foreigners to whom South Africa owes a responsibility under International Law). That unwillingness to act through her state agencies qualify as a wrongful international act. Failure in state responsibility comes with a corresponding responsibility to pay compensation. We should therefore write the South African authorities, calling their attention to the breach of her international law obligation to protect our citizens and have them pay damages for same. Failure to comply and we should immediately sue south Africa at the International Court of Justice under the relevant provisions of the UNCAT as well as the International Convention on Civil and Political Rights.

2. Draft and enter into a Bilateral Treaty with South Africa and name it “The Anti Xenophobia Treaty”. This treaty should name what qualifies as a xenophobic attack and should set up a special arm of the South African Police, made up of persons with proven integrity and character to receive complaints from Nigerians once there is a threat to, or actual xenophobic attack. The reason is that one actually knows that crimes are generally being perpetrated by people but the underlining issue should be the swift response of law enforcement agencies, as well as the extent of pro-activeness in handling the situation. A condition where in the history of the xenophobic attacks against Nigerians, not one person has been brought to book is totally unacceptable. A situation my mentor, Brigadier General J. I. James referred to as “Political Titikpatiti”, beating around the bush more or less.

3. Drag South Africa to the African Human Rights Commission. This commission was created by Article 30 of the African Charter on Human and Peoples Rights. We should lodge a formal complaint as well as push for South Africa’s suspension from the African Union (AU) for continuous failure to keep the provisions of the Charter and protect the overall brotherliness of the region. The commission can order its own enquiries and reach conclusions and make recommendations to the Assembly of Heads of State to act. The preferable option would have been to drag South Africa to the African Court created by Article 1 of the Protocol to the African Charter, but there is an impediment in that protocol, contained in Article 34(6) that impedes states which are yet to sign the declaration of 1998, from being dragged or sued at the commission. South Africa, as well as Nigeria are yet to sign the declaration.

4. Write the United Nations General Assembly, and even the Security Council, intimating them of how unsafe South Africa has become for Nigerians and how that the continuous killing of Nigerians in south Africa is a threat to the global unity the United Nations seek to keep.

5. Sue South Africa at the ICJ and obtain an injunction, seeking to mandate South Africa to fish out those responsible for these crimes and try them or extradite them to the International criminal Court since Nigeria and South Africa are both signatories to the Rome Statute which recognizes the jurisdiction of the International Criminal Court under the principle of Complementarity.

6. Threaten to, and in fact, sever diplomatic ties with South Africa. One can understand the economic considerations but it is important to put out an emphatic statement that Nigeria has a responsible government that value the lives of her citizens residing everywhere in the world.

The danger in not doing all or any of the above is that Nigerians would one day be pushed to the wall and start to react against South African investments here in Nigeria where they have been enjoying a relatively favorable business climate. The effect of all of these is that there is a likelihood of war between these two countries who have been relatively peaceful even in the face of diplomatic phantasmagoria. There are arguments in certain quarters that International law only barks but do not bite. This situation will once again, lend credence to that school of thought if we do not take relevant steps to ensure the protection of our citizens living in South Africa.

Credit: Blueprint