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Xenophobic attacks: Legal experts explore options for victims

By Innocent Anaba & Henry Ojelu

With the return of 187 Nigerians from South Africa on September 11, 2019;  most of them with only personal effects, having lost their sources of livelihood to the ongoing xenophobic attacks, Nigerians have began to raise concern over the fate of the victims.

Although the Nigerian government has promised to support the victims with little financial assistance, the quantum of loss suffered by the returnees is better imagined than experienced. In this edition, Law and Human Rights, sought the views of lawyers on the remedies available to Nigeria, the returnees and those who were killed in the xenophobia attacks.

Excerpt:

Prof Sam Erugo, Dean, Faculty of Law, Abia State University

I doubt that the returnees are entitled to any remedies in law from the South African Government or the Nigerian Government, if indeed what is happening is xenophobic attack, without government complicity.

Xenophobic attack is suggestive of organised crimes.

Under municipal law of South Africa, and ostensibly other nation states, the activities of the attackers should constitute various crimes known to law.

attacks,victims
South Africa Xenophobic attacks on Nigeria

For example: murder/manslaughter (in the extreme cases of death resulting from the attacks), assault and battery, arson, robbery, armed robbery, stealing, etc.

Except to the extent of established complicity of the government in the attacks/crimes, it may be difficult to establish any legal claim/remedy against the government.

The duty of the South African government in the circumstances is to maintain law and order – providing a guarantee of basic freedoms that find expression in the liberty and security of citizens/foreigners to move about in pursuit of individual livelihood without fear or molestation.

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This is the standard of civilised existence

established by various international legal instruments starting from the Universal Declaration as inalienable rights applicable to citizens and non-citizens alike.

The protection of freedoms of the person is a basic duty and every state must as such provide adequate police protection against threatened invasions of aliens and alien property.

These are guaranteed by the principle of rule of law. Essentially, where crime is established as in this case, there must be punishment; and the central institutions of the legal system for the purpose, including courts, prosecutors, and police, must be reasonably fair, competent, and efficient, and the judges impartial and independent, etc.  However, if the complicity of the South African government through the activities of its agents is established, then the returnees may make claim under municipal and international law, with necessary support of Nigerian government.

For instance, where the activities could be termed “gross violations of international human rights law,” the victims may be entitled to certain remedies including reparation.

The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted and proclaimed by General Assembly

resolution 60/147 of 16

December 2005 may become useful here.

This instrument provides for Reparation proportional to the gravity of the violations and the harm suffered.

Hence, in accordance with its domestic laws and international legal obligations, South Africa may be required to provide “reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law.”

Ditto, if it is established that any of the activities traceable to the government resulted into compulsory takeover acquisition of businesses belonging to the returnees. It must be noted that the capacity of Nigerian returnees to claim may be affected by their status as aliens in South Africa. Of course, only those lawfully residing in South Africa would have capacity to make claims. Illegal migrants/aliens would not be entitled.

South Africa may also be liable for violation of international law without any remedy to individual returnee victim.

The International Covenant on Civil and Political Rights at Article 2(1) equally provides that “Every nation who has ratified the Covenant has agreed to grant “all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The rights mentioned above include the right to fair procedure, freedom of expression, and protection from tyranny and injustice.

This Covenant further prohibits the expulsion of lawful aliens from a nation without fair procedures, except when national security does not permit.

The alien must also be provided with representation.   This may have been violated.

It is doubtful what claim the returnees could make on the Nigerian Government -probably to ensure that their rights are protected by the Nigerian government–this is a privilege and not a right.

The way forward for the returnees is to insist and engage the Federal

Government to: iv.explore fully and effectively the diplomatic channels for a quick resolution of the crises,

v.persuade South Africa to maintain security within its territory, while observing its international obligations, and

vi.make appropriate

reparation/compensation for the attacks which could have been avoided or contained early with less damage.

The ultimate solution,

moving forward and in the long terms, is improve the local environment to employ its abundant human

resources and reduce the rate of migration in search of greener pastures.

Home should be greener. Again, we need a foreign policy framework that will afford greater protection to the Nigerian citizenwherever he decides to reside.

The life of every Nigerian should be important to government.

Dr. Simon Igbinedion. Sub-dean, Faculty of Law, University of Lagos

Nigeria should diplomatically tackle South Africa by asking for compensation for the loss of Nigerian lives and properties and apology and

undertaking not to allow such barbaric attacks again on its soil, failing which Nigeria should invoke the judicial process by suing South Africa in the African Court or even the International Court of Justice.

Nigerians as individuals may not be to sue South Africa in its territory in view of the body language support of South African government for the xenophobic attacks on foreigners.

Wahab Shittu— Senior Law Lecturer, University of Lagos

“Xenophobic attacks on Nigerians in South Africa is savagery, brutish, callous and inhuman atrocity of the worst order. Nigeria as a country has reacted appropriately by recalling Nigeria’s Ambassador to South Africa and withdrawing from the ongoing economic forum currently taking place in South Africa. These steps are consistent with the mood of the country and Nigerians who are justifiably aghast and angry at the unfortunate developments.

The ruling elite has to do more.

“Firstly we need to address a World press conference to register our displeasure at the savagery.

We need to formally lodge a criminal complaint at the International criminal court of justice and demand justice and compensation for the victims.

The South African authorities must be  made to apologise ,assure of the safety of Nigerians and undertake to pay compensation and prosecute those involved in these serial atrocities.

‘We need to sensitize the African Union,the Commonwealth ,United Nations and the international community on the atrocities going on in South Africa and the urgency of sanctions against South Africa. Nigeria must examine all options to get justice for Nigeria and Nigerians for this Savagery and man’s inhumanity to man.”

Gbenga Ojo- Senior Law Lecturer, Lagos State University

“What is needed is subtle diplomacy. We can retain diplomatic relationship with South Africa but take census of all South Africans in Nigeria and expel all of them particularly those with expired papers immediately.

Call on South African government to send plane(s) to take them home and if they refuse, put them in a camp until their government do the needful.

“The officials in charge of information must make official statements to that effect. This will sign as signals to other African leaders that Nigeria will respond, if similar events happen in their countries.  That Nigeria will not condone such actions. This is at least interim measure for a start.”

Kabiru Akingbolu—Member, Ekiti State Judicial Service Commission

“Nigerian government should rise up to the occasion with immediate effect with a view to identifying as a matter of topmost priority the remote and immediate causes of the xenophobic attacks on Nigerians living in South Africa.

The approach should be solid and firm, devoid of any diplomatic royale or finese, so as to achieve a worthwhile solution.

“For goodness sake, if any country will do that, definitely, not South Africa for whom Nigeria fought endlessly to rescue them from the gripping hold of the mischievous minority white.

The attack is too grave and monstrous that no reasonable government can fold its arms and watch.

Our government should engage the government of South Africa in line with international treaties laws to demand for Justice and freedom of movement for Nigerian citizens.”

 

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