By Francis Moneke
The recent resurgence in South Africa of wanton aggression against Nigerians and some other foreign nationals resident in that country, has incurred the infuriation of Nigerian people and government, who are united in the expression of unequivocal condemnation of what has now become a recurring and rampant practice of mindlessxenophobic violence perpetrated by South African citizens, and more so the apparent lack of commitment on the part of South African government to prevent such attacks and redress the situation by bringing the perpetrators to justice and making reparations to the victims. This reign of impunity in South Africa attracted reciprocal violent recourse by some disgruntled Nigerians against South African economic interests in Nigeria, which were however quickly contained by proactive law enforcement agents. More appositely and strategically, the Federal government has swiftly taken steps to respond to the situation in a manner that is in tandem with the legal regime on international relations.
Now, xenophobia is the fear or hatred of that which is perceived to be foreign or strange, engendering violence as a defence mechanism against such fear or a catharsis of an overflowing hatred. It seems that the perpetrators of the xenophobic attacks in South Africa among other indignations blame Nigerians and other foreigners in their country for taking over their jobs, which according to them is the reason for their hardship and poverty.More appalling were the attempts by some top officials of South African government to justify the attacks by claiming that most Nigerians in their country indulge in criminal activities. These are pathetic excuses, which cannot justify extrajudicial attack against legal foreigners in their host country. If some foreigners in South Africa engage in criminal activities, it is incumbent on the law enforcement agency of that country to find and bring such persons to justice, and not allow the citizens to resort to jungle justice against such perceived alien criminals. On the other hand, South Africans cannot blame hard working foreigners for their suffering, they should rather blame their government, because such foreigners mostly engage in personal businesses, which they have labored so hard to build and grow. If anything such businesses built by foreign nationals, especially Nigerians, add substantial value to South African economy – they employ South Africans, pay taxes to the government and generally bring more development to the country.
South African government has failed to admit that the attacks against foreigners in that country are xenophobic, preferring to describe them as mere illegal activities by some criminal elements, with mere half-hearted condemnation of the attacks by President Cyril Ramaphosa.It is rather unfortunate that South African government has failed in its duty by allowing its people to lose a sense of history, which should have taught them to remain in perpetual gratitude to Nigeria and other African countries for the critical roles they played in extricating that country from the morbid hold of apartheid.
The question now is whether under international law South African government is fully responsible and answerable for the attacks on Nigerians and other African foreigners in that country perpetrated by its citizens. The international legal regime governing this matter is the International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts adopted by the United Nation’s General Assembly in 2001 – (ILC Draft Articles). Under this regime where, as in this instance of xenophobic attacks in South Africa, unlawful acts are committed by individuals not acting as defacto State officials against foreigners, the State on whose territory the acts are committed incurs international responsibility only if it did not act with due diligence (culpable negligence) – i.e. if it omitted to take necessary measures to prevent attacks on foreigners and their assets, or after perpetration of the unlawful acts, failed to search out and duly punish the authors of those acts, as well as pay compensation to the victims or their families.
The recurrence of xenophobic attacks in South Africa has risen above ordinary state responsibility to the status of aggravated state responsibility, which arises when a state violates a rule laying down a ‘community obligation’, that is either a customary obligationergaomnes protecting such fundamental values as peace or human rights of peoples or an obligation ergaomnescontractantes laid down in a multilateral treaty safeguarding those fundamental values, such as the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. In the instant case of attacks on foreigners in South Africa, it is obvious that the government of that country was negligent in preventing such attacks and protecting the lives and properties of foreigners. Indeed there seemed to be a tacit complicity if not direct incitement of the attacks by government officials. The gruesome killing and brutal maiming of Nigerians including wanton destruction of their assets in South Africa by the citizens of that country unbridled by the security apparatus therefore entitles Nigerian government to invoke aggravated state responsibility against South Africa government.
Ordinarily, a delinquent state owes several obligations to the injured state. First, it must cease the wrongdoing if it is continuing. Second, it must offer appropriate assurances and guarantees of non-repetition. Third, it must make full reparation for the injury caused. Fourth, if it refuses to make reparation or pay compensation to the extent required by the injured state, pursuant to Article 2,3 of the UN Charter the responsible state must accede bona fide to any attempt peacefully to settle the matter made by the injured state. On the other hand, the injured state, if it decides to invoke the responsibility of the delinquent state, must take the following steps. It must first give notice of claim to the responsible state. If the responsible state does not comply with its requests, the injured state must endeavour to settle the dispute through peaceful means by proposing negotiation, mediation, conciliation or arbitration. It is only where the responsible state refuses to make reparation or to enter into alternative dispute settlement process that the injured state will be entitled to resort to countermeasures. It must be noted that in the case of aggravated state responsibility such as the instant case, the legal consequences of the wrongful act no longer consists merely of bilateral relation between the responsible state and the victim, but of a ‘community relation’ between the wrongdoer and all other states. This means that countermeasures against the delinquent state will not only ensue from the injured state but from the comity of nations at large, because of such violation of an erga omnes obligation.
Nigerian government has obviously taken steps toward peaceful resolution of this sordid situation by first summoning the South African Ambassador to Nigeria and then sending a delegation to South Africa. The outcome of those engagements should inform Nigeria on the way forward in terms of what stringent but non-forcible countermeasures to adopt if South Africa does not show a bonafide readiness to resolve the matter or if the government of that country is amenable to settlement, the terms of an amicable resolution of the matter. Nigerian government pulled out of the World Economic Forum that was recently held in South Africa; recalled the country’s Ambassador to South Africa thus temporarily breaking diplomatic relations with that country; and mobilized military jets including a donated Air Peace aircraft to convey Nigerians in South Africa back home. These arecommendable preliminary and precautionary countermeasures taken by the Nigerian government toward compelling the government of South Africa to seat up and respond expeditiously and appropriately to the matter.
South African government must be compelled to once and for all address this issue of xenophobic attacks in that country by arresting and punishing the perpetrators, paying adequate compensation to the victims and giving firm assurance of non-repetition. Nigerian government must engage the Assembly of Heads of State and Government of the Africa Union, and the General Assembly and Security Council of the United Nations for a community action against South Africa to bring to a permanent stop the recurring epidemic of xenophobic attacks in that country.
In the final analysis, it is refreshing to see how Nigeria is united with one voice in condemning the attacks against Nigerians in South Africa. But what calls for serious reflection is what value the Nigerian government places on the lives of the citizens, what with the rampant killings in the country by Fulani herdsmen, the Boko Haram, armed robbers and kidnappers, which have so far remained intractable by the entire security apparatus of the country. People are murdered virtually on daily basis in very gruesome manners, yet there is no serious effort by the government to prevent such attacks or protect the lives and properties of citizens. If Nigerian government cannot protect its citizens and show that it places very high premium on the life of every Nigerian, it would savour of hypocrisy to expect the government a foreign country to place such premium on the lives of Nigerians and thus go out of its way to protect Nigerians against attacks in foreign land. Also, the endeavour to bring back Nigerians in South Africa, while in itself laudable, raises the question whether the government has made deliberate arrangements to rehabilitate such persons and not just to leave them economically stranded upon return to Nigeria. The nightmarish experience of Nigerians in the hands of South Africans should be a wakeup call to Nigerian government on the need to genuinely commit itself to abatingthe reign of corruption and impunity in Nigeria and, make a single-minded devotion to good governance that would yield tangible democratic dividends to citizens. This will discourage the exodus of Nigerians to foreign countries in search of greener pastures where they suffer all manner of indignities, and usually end up in the wrong arm of the law in their desperate effort to eke out a living. This however, does not by any means justify Nigerians who out of greed and inordinate desire to amass sudden wealth join the fast lane of criminal activities in foreign countries. Nigerian youths must embrace the orientation of hard work and delayed gratification, and if resident in foreign lands must eschew criminality and commit themselves to legitimate endeavours, working hard to earn their living and comport themselves as good ambassadors of the country – always projecting a very respectable image of Nigeria.
Francis Moneke, Executive Director, Human Rights & Empowerment Project Ltd/Gte