Attorney General of the Federation and Minister of Justice, Abubakar Malami
After weighing several options in the quest to seek justice for her citizens killed through incessant and unwarranted xenophobic attacks, Nigeria may, at last, settle for legal action against South Africans to seek redress for her citizens.
The country has resolved to drag the South African government to the African Court of Human and Peoples Rights in Arusha in Tanzania following the collapse of Diplomatic moves to stop the killings.
TribuneOnline gathered from a source in the Federal Ministry of Justice on Thursday that the legal action will be filed any moment from now to enforce the fundamental rights and freedoms of the affected Nigerians and other African nationals.
Nigeria is said to have hinged its legal action against the South Africa on the refusal of the South African government to accept and make use of diplomacy to resolve the killings and also to the fact that the country (Nigeria) is a party to the African Charter on Human and Peoples Rights having ratified the charter on June 22, 1983.
The legal option is also predicated on Nigeria’s ratification of the Protocol to the African Charter on Human and Peoples Rights on the establishment of an African Court on Human and Peoples Rights done 20th May 2004
“Following repeated incidences of killings, maiming and destruction of properties of Africans, especially Nigerians living in South Africa and since it appears diplomacy has failed to prevent the South Africans from committing xenophobic attacks on foreigners, particularly Nigerians; it behoves the Federal Government to exercise its duty under International law to protect the rights of its citizens in diaspora.
“It is an elementary principle of international law that a state is entitled to protect its subjects, when injured by acts contrary to international law committed by another state, from whom they have been unable to obtain diplomatic action or international judicial proceedings on his behalf, a state is, in reality, asserting its own rights- its right to ensure in the person of its subjects, respect for the rules of international law.
“In a South African reported case- Kaunda vs. President of the Republic of South Africa, which lends credence to the Nigeria’s position, the Constitutional Court of that country states that, “There may be a duty on government, consistent with its obligations under international law to take action to protect one of its citizens against a gross abuse of international human right norms.
“A request to the government for assistance in such circumstances where the evidence is clear would be difficult, and in extreme cases, possibly impossible to refuse. It is unlikely that such a request will ever be refused by the government, but if it were, the decision will be justiciable and the court will order the government to take appropriate actions.
“Thus, even if the Nigerian Government is refusing to act in this circumstance, Nigeria can be compelled to take actions by the Court. The decision of the South African Constitutional Court is further corroborated by Art. 19 of the Draft Articles on Diplomatic Protection which provides that:
“A state is entitled to exercise diplomatic protection according to the present draft articles, give due consideration to the possibility of exercising diplomatic protection, especially when a significant injury has occurred; take into account, wherever feasible, the views of injured persons with regard to resort to diplomatic protection and the reparation to be sought; and transfer to the injured person any compensation obtained for the injury.
“Nigeria is thus entitled to take actions in this xenophobic attacks on her citizens because South Africa has blatantly and with impunity failed to apply the, National Treatment principle, treatment equal to that given by South Africa to its own nationals to foreigners within its territory and consistently encouraged gross violation of the Fundamental Rights and Freedoms of Nigerian citizens living in that country*, the sources said.
Furthermore, when a State disregards the application of either, the “international minimum standards” or the “national treatment” principles by resorting to killings, indiscriminately arresting and violating the fundamental rights and freedoms of foreign nationals in its territory, it is a clear violation of Article 55 (c) of the United Nations Charter and other International Human Rights.
“It must be unequivocally stated that Nigeria owes all its citizens in South Africa the obligation to protect and defend them. This obligation, Nigeria must immediately exercise by calling for a meeting to collate the numbers of Nigerians affected, the nature of the injury suffered and the estimate of individual losses”, the source said.
It will be recalled that several Nigerians had been killed, maimed and injured during the xenophobic attacks launched on them by restless South African youths in the past five years due to the failure of South Africa to apply national treatment principles on the emergence of xenophobia on Nigerian citizens and other African nationals.
However, the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN) declined to comment on the latest move by Nigeria against South Africa on the legal option.