THE xenophobic attacks on Nigerians and others in South Africa have festered because of the failure of that country’s government to act as required, Federal Government officials said on Thursday.
The Federal government argued that South Africa was obligated under the African Charter on Human and People’s Rights, the United Nations Charter and other international human rights instruments to protect foreign nationals in its territory.
It is considering suing the South African Government before the African Court of Human and Peoples Right in Arusha, Tanzania in a bid to compel South Africa to perform its responsibility of protecting Nigerians in the country and seeking compensation for victims of the attacks.
This position is contained in a memo currently awaiting the final approval of the Minister of Justice and Attorney General of the Federation (AGF), Abubakar Malami, a copy of which The Nation sighted in Abuja on Thursday.
It was learnt that the memo was a culmination of deliberations by senior officials of the Federal Ministry of Justice and other experts on how best Nigeria could address the South African crisis in view of the country’s refusal to yield to past diplomatic overtures.
Part of the document reads: “Nigeria is 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 Principle, 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.
“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 entitle 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 his 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 v. President of the Republic of South Africa, which lends credence to the Nigeria’s position, the Constitutional Court of that country (South Africa) 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 Article 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 die 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.’
A senior official of the Federal Ministry of Justice, confirmed that the ministry was working to ensure the prompt institution of the case in few days from now.
He said: “We are entitled to sue where diplomacy appear not to be working in this case and the South African authorities seem complicit.
“Nigeria is a party to the African Charter on Human and Peoples Rights, having ratified the charter on June 22, 1983.
“The country has also ratified the Protocol to the African Charter on Human and Peoples Rights on the establishment of an African Court on Human and Peoples Rights since 20th May, 2004.
“So, we can approach the court to seek redress for Nigerians who are victims of this senseless and unprovoked attacks,” the official said.
