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 involved 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 clamor 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 responsibility 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 the 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 I 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
replete and have become the reason we are perceived as generally
being weak in the international community.
ISSUES
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 fowl 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 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 outrightly 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. 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.
OPTIONS OPEN TO NIGERIA
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 bestows 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 complains 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, severe 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.
CONCLUSION
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.