[Featured Photo: President Muhammadu Buhari and Cyril Ramaphosa of South Africa]
After weighing several options in the quest to seek justice for her citizens killed through incessant and unwarranted xenophobic attacks, the Nigeria government may be considering legal action against its South African counterpart, feelers from Abuja have shown.
Recall that the federal government demanded compensation for the destruction suffered in the wake of attacks on her citizens, but the South African government has rebuffed the request.
Two days ago, Nigeria’s Foreign Affairs Minister, Mr. Geoffrey Onyeama said: “We have to address the issue of compensation, there have to be accountability and there have to be responsibility for compensating all those Nigerians that have suffered loss and we are going to absolutely push.
But South African Foreign Affairs Minister Naledi Pandor on Thursday told Reuters that there was no provision in local law for compensation for damage caused in the attacks.
Meantime, the Nigerian government has resolved to drag the South African government to the African Court of Human and Peoples Rights in Arusha, Tanzania following the collapse of diplomatic moves to stop the killings and attacks.
A top source in the Federal Ministry of Justice in Abuja said on Thursday that the legal action is to be filed to enforce the fundamental rights and freedoms of the affected Nigerians and other African nationals.
Nigeria is said to have hinged its legal action against South Africa on the refusal of the government there to resolve the killing, and because Nigeria is a party to the African Charter on Human and Peoples Rights having ratified the charter on June 22, 1983.
Nigeria’s ratified the Protocol to the African Charter on Human and Peoples Rights on the establishment of an African Court on Human and Peoples Rights on 20th May, 2004
The source said “following repeated incidences of killings, maiming and destruction of properties of Africans especially Nigerians living in South Africa and since it appears diplomacy has failed to prevent the South Africans from committing xenophobic attacks on foreigners, particularly Nigerians; it behooves the Federal Government 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 on its behalf, 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.”
“In a South African reported case – Kaunda y. President of the Republic of South Africa, which lends credence to the Nigeria’s position, the Constitutional Court of that country states that:
“There may… be a duty on government, consistent with its obligations under international law to take action to protect one of its citizens against a gross abuse of international human right norms.
“A request to government for assistance in such circumstances where the evidence is clear would be difficult, and in extreme cases, possibly impossible to refuse. It is unlikely that such a request will ever be refused by government, but if it were, the decision will be justiciable and the court will order the government to take appropriate actions.”
“Thus even if Nigerian Government is refusing to act in this circumstance, Nigeria can be compelled to take actions by the Court. The decision of the South African Constitutional Court is further corroborated by Art. 19 of the Draft Articles on Diplomatic Protection which provides that:
“A state is entitled to exercise diplomatic protection according to the present draft articles, give due consideration to the possibility of exercising diplomatic protection, 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”
“Nigeria is thus entitled to take actions in 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 Africa to its own nationals to foreigners within its territory and consistently encouraged gross violation of the Fundamental Rights and Freedoms of Nigerian citizens living in that country.
Furthermore, when a State disregards the application of either, the “international minimum standards” or the “national treatment” principles by resorting to killings, indiscriminately arresting and violating the fundamental rights and freedoms of foreign nationals in its territory, it is a clear violation of Article 55 (c) of the United Nations Charter and other International Human Rights.
“It must be unequivocally stated that Nigeria owes all its citizens in South Africa the obligation to protect and defend them. This obligation, Nigeria must immediately exercise by calling for a meeting to collate the numbers of Nigerians affected, the nature of injury suffered and the estimate of individual losses”, the source said.
It will be recalled that not less than 120 Nigerians have been killed, and others maimed and injured during the xenophobic attacks launched on them by restless South African youths in the past three years due to the failure of South Africa to apply national treatment principles when xenophobia attacks escalated against Nigerians and other African nationals.
