Socio-Economic Rights and Accountability Project (SERAP) has sent an
open letter to Mrs Soyata Maiga, Chairperson of the African Commission
on Human and Peoples’ Rights and the commission’s members requesting
them: “to urgently submit a case on the escalating xenophobic attacks
against Nigerians and other African citizens in South Africa to the
African Court on Human and Peoples’ Rights and to seek an effective
remedy and reparation for Nigerian victims.”
SERAP said: “these attacks constitute serious violations of the human
rights of Nigerians and other African citizens in South Africa.”
The organization also urged the commission to “seek in the case to the
African Court, punitive damages and adequate compensation of $10 billion
(USD) on behalf of hundreds of Nigerian victims and their families. This
amount will sufficiently take into account individual harm suffered by
victims.”
In the open letter dated 6 September 2019 and signed by SERAP deputy
director Kolawole Oluwadare, the organization said: “This is a key
moment for the commission to push to protect the human rights of the
victims. The commission ought to make it clear to the South African
authorities that the victims of the heinous crimes have a right to an
effective remedy and reparation, which includes restitution,
compensation, rehabilitation, satisfaction and guarantees of
non-repetition.”
The organization also said: “For the sake of the victims, the commission
should move swiftly on the matter to prevent further harm to Nigerians
and other foreign nationals in the country. Unlike for individuals and
NGOs, the African Court Protocol does not require Nigeria to have made
the declaration under Article 34(6) for the commission to submit a case
on behalf of the Nigerian victims before the Court.”
The open letter read in part: “If the victims see that a process for
ensuring adequate compensation for the crimes committed against them in
South Africa is underway, it will also discourage revenge violence and
killings and help break the cycle of violence that is now spiralling
beyond control in the country.”
“If the commission does not pursue a case for compensation for victims,
the Nigerian government may compel it to do so before the court. The
call for an effective remedy and reparation for the victims of
xenophobic attacks and violence is overwhelming, and comes from direct
victims and their families, from the Nigerian government and the
leadership of Nigeria’s National Assembly.”
“Pursuing the case before the African Court and seeking adequate
compensation in the sum of $10 billion (USD) would help to ensure
justice to the victims and deter South African authorities and
high-ranking public officials who incite hatred, violence and
discrimination.”
“Pushing for payment of $10 billion (USD) compensation for Nigerian
victims of xenophobic attacks and violence can demonstrate that the days
of impunity for these crimes are gone.”
“This would also ensure the effective implementation of the commission’s
Resolution ACHPR/Res.131 (XXXXIII) and Resolution ACHPR/Res.304 (LVI) as
well as its press statements of 2017 and 4 April 2019, which expressed
grave concern over xenophobic attacks that took place in 2008, 2015,
2017 and 2019 respectively.”
“Every African citizen in South Africa is guaranteed the rights to life
and human dignity no matter their nationality or migration status. The
commission should call on high-ranking political leaders in South Africa
to immediately end public statements, which amount to advocacy of hatred
or incitement to discrimination, hostility or violence.”
“The commission should consider the xenophobic attacks as amounting to
serious and widespread violations of human rights of Nigerians in South
Africa. The lack of accountability and adequate compensation for the
xenophobic attacks and violence committed against Nigerians in South
Africa for many years has fostered a sense that there are no
consequences for violence.”
“SERAP notes that the African Commission has condemned the xenophobic
attacks and violence, noting that ‘the attacks not only constitute
possible violations of the African Charter on Human and Peoples’ Rights
but are also contrary to the principles and ideals of African solidarity
cherished in the African Charter.'”
“It is now time for the commission to move beyond mere resolutions and
statements. The commission should pursue legal action to seek an
effective remedy and reparation for victims, as the South African
authorities have failed and/or refused to implement the commission’s
repeated resolutions and statements.”
“SERAP is seriously that the African Commission, which is the main body
mandated with promoting human and peoples’ rights on the continent—has
so far failed to hold South African authorities to account for these
crimes and to deter repeated violations and attacks against Nigerians.”
“South African authorities cannot expect Nigerian victims to resume
their lives as though nothing happened. Time is of the essence as the
failure and/or refusal by the authorities to respect the right of
Nigerian victims to an effective remedy and reparation for the
xenophobic attacks have continued to fuel repeated violence with
devastating consequences and an entrenched culture of impunity of
perpetrators.”
“Prior to the outbreak of the current xenophobic violence and attacks
against Nigerians, the government of South Africa was failing to protect
the human rights of foreign nationals in the country. Particular human
rights concerns include restriction of the right to freedom of movement,
violation of the right to life, equality, dignity and the security of
their person and property as enshrined under Articles 3, 4, 5, 12 and 14
of the African Charter.”
“Significant efforts are needed to foster a culture of respect for the
human rights of foreign nationals in the country. The commission should
play a decisive role by beginning to call for broad human rights reforms
that will ensure full protection and safety of Nigerians and other
African citizens in South Africa.”
“The African Court has held that as long as the rights allegedly
violated are protected by the African Charter or any other human rights
instruments ratified by the State concerned, in this case South Africa,
the Court will have jurisdiction over the matter if it is brought by the
African Commission, pursuant to Articles, 2, 3(1) and 5(1) (a) of the
Court’s protocol.”
“South African authorities have repeatedly failed and/or refused to take
any meaningful action to end xenophobic violence and attacks against
Nigerians, and address the root causes of these attacks. Also, the
justice system has not satisfactorily dealt with the arrest and
prosecution of perpetrators let alone ensure an effective remedy and
reparation for victims.”
“The commission should also draw the attention of the Assembly of Heads
of State and Government of the African Union to the xenophobic attacks
and violence since they reveal the existence of a series of serious or
massive violations of human and peoples’ rights, as provided under
Article 58 of the African Charter on Human and Peoples’ Rights.”
“It is important to invoke article 58 so that the AU can also consider
taking punitive action against the South African authorities on their
failure to implement their obligations under the Africa Charter and the
AU Constitutive Act.”
“This request is entirely consistent with the African Commission’s rules
of procedure and the Protocol to the African Charter on Human and
Peoples’ Rights on the establishment of an African Court on Human and
Peoples’ Rights. Taking this step will show that African Commission and
African Court can cooperate in taking action against massive human
rights violation in South Africa.”
“Over 200 Nigerians have been reportedly killed since 2008, several more
have been displaced from their homes while more than 300 Nigerians have
registered for evacuation from South Africa. Shops and businesses by
Nigerians have been looted or destroyed, and high-ranking political
leaders have deliberately fuelled the attacks and violence.”
“The impact of the violence and attacks on Nigerian women and children
has been devastating, as children have been unable to attend school due
to fear of attacks. Many Nigerians are now relocating their wives and
children to Nigeria while they stay back to work in South Africa.”
“In February 2017, parents reported that xenophobic prejudice was being
extended to local schools. For example, the Eastleigh Primary School in
Edenvale, Gauteng threatened to refuse the children of foreign nationals
access to education. In May 2008, more than 60 people were killed, more
than 600 injured and over 20,000 people were displaced in the Gauteng
and Western Cape Provinces.”
The open letter was copied to the Secretary, African Commission;
Commissioner Solomon Ayele Dersso, Rapporteur for South Africa;
Commissioner Lucy Asuagbor, Special Rapporteur on Rights of Women;
Commissioner Rémy Ngoy Lumbu, Special Rapporteur on Human Rights
Defenders, and Commissioner Maya Sahli Fadel, Special Rapporteur on
Refugees, Asylum Seekers, Migrants and Internally Displaced Persons.