Human rights lawyer and Senior Advocate of Nigeria (SAN), Femi Falana, has called on the governments of Nigeria and Ghana to institute legal proceedings against South Africa before the African Court on Human and Peoples’ Rights over the continued xenophobic attacks and expulsion of African migrants.
Falana said the case should be filed under Article 5 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 1998.
In a statement issued on Sunday, the senior lawyer argued that, in addition to seeking provisional measures to halt further attacks, both countries should ask the court to award aggravated damages against the South African government.
“I am compelled to call on Nigeria, Ghana and other African countries whose nationals have either been killed or brutalized in the xenophobic attacks to sue the South African Government at the African Court on Human and Peoples Rights in Arusha, Tanzania,” he said.
Falana also criticised Nigeria for failing to recognise the jurisdiction of the African Court to entertain petitions from individuals and non-governmental organisations, unlike Ghana, saying the decision has denied victims of human rights abuses access to justice.
“It is pertinent to note that unlike Ghana, Nigeria has refused to accept the jurisdiction of the African Court on Human and Peoples Rights, sitting in Arusha, Tanzania to entertain cases of human rights abuse from individuals and non governmental organisations. If Nigeria had recognised the competence of the court, victims of xenophobic attacks and other gross abuse of human rights in South Africa and other African countries would have been able to seek legal redress including payment of compensatory damages.
“We are therefore compelled to call on the Bola Tinubu administration to enable aggrieved citizens to access the African Court in accordance with article 34(6) of the Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and People’s Rights, 1998.”
The senior advocate recalled that following the recent wave of xenophobic attacks in South Africa, during which thousands of Nigerian migrants were allegedly forced to leave the country, the Federal Government announced plans to seek compensation for affected citizens.
According to him, many Nigerians were attacked and expelled without being given the opportunity to dispose of their businesses, investments and other assets. He noted that Nigeria’s Acting High Commissioner to South Africa, Alexander Ajayi, had disclosed that the government had begun documenting businesses and properties abandoned by Nigerians.
Falana, however, advised the Nigerian and Ghanaian governments against taking the matter to the African Union, arguing that such a move would achieve little.
He said referring South Africa to the continental body would be “completely diversionary and time wasting,” stressing that the African Union lacks the legal authority to compel the South African government to pay compensation, as it can only adopt resolutions.
Drawing a comparison with South Africa’s international legal action against Israel, Falana urged African governments to pursue judicial remedies through the appropriate legal institutions.
“In December 2023, the Government of South Africa was commended by all men and women of goodwill for dragging the government of Israel to the International Court of Justice for committing genocidal acts against Palestinians in Gaza for violating the 1948 Genocide Convention. In early 2024, the ICJ ordered Israel to halt further acts of Genocide and allow humanitarian aid to reach Gaza,” he said.