Xenophobia: Nigeria, Ghana Should Sue South Africa at African Court - Falana

Human rights lawyer Femi Falana has called on Nigeria and Ghana to pursue legal action against South Africa at the African Court on Human and Peoples’ Rights. Falana advocates for this approach to address alleged xenophobic attacks and the forced displacement of African migrants within South Africa.

Falana criticized the decision by Nigeria and Ghana to report the issue to the African Union (AU), labeling it a "diversionary and time wasting" tactic. He asserted that the AU lacks the legal authority to compel the South African government to compensate victims of such attacks. This stance comes after renewed attacks forced thousands of Nigerian migrants to leave South Africa, with the Nigerian government initially planning to seek compensation.

South Africa's Foreign Ministry spokesperson, Kimiebi Imomotimi Ebienfa, had indicated that compensation discussions would occur at the highest governmental levels. Nigeria's Acting High Commissioner to South Africa, Alexander Ajayi, confirmed that authorities were documenting abandoned businesses and properties. However, Falana noted that South Africa reportedly rejected Nigeria's compensation demand, with claims that many evacuated individuals were in the country illegally, a point disputed by some victims.

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diversionary and time wasting

Instead of engaging with the AU, Falana urged affected countries, including Nigeria and Ghana, to file a case with the African Court on Human and Peoples’ Rights in Arusha, Tanzania. He believes this court can provide redress and damages for victims. Falana argued that the alleged expulsion of African migrants contravenes Article 12 of the African Charter on Human and Peoples’ Rights, which prohibits mass expulsions except as prescribed by law. He also pointed out that some victims were killed during the attacks and that statements from some South African officials allegedly encouraged hostility toward migrants.

Drawing a parallel to South Africa's previous action against Israel at the International Court of Justice (ICJ), Falana stressed the need for accountability mechanisms for alleged abuses against African migrants. He urged Nigeria and Ghana to invoke Article 5 of the Protocol to the African Charter on Human and Peoples’ Rights to seek provisional measures preventing further attacks and aggravated damages against the South African government. Falana also criticized Nigeria's non-recognition of the African Court's jurisdiction for individual and NGO cases, contrasting it with Ghana's acceptance of the court's competence.

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Some of the victims of the xenophobic attacks were killed in the process.