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.

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