Xenophobia: Nigeria, Ghana should sue South Africa at African Court

Human rights lawyer and Senior Advocate of Nigeria (SAN), Femi Falana, has urged Nigeria and Ghana to institute legal action against South Africa at the African Court on Human and Peoples’ Rights over alleged xenophobic attacks and forced displacement of African migrants in the country.

Falana, in a statement, faulted the decision by Nigeria and Ghana to report South Africa to the African Union (AU), describing the move as “diversionary and time wasting,” arguing that the continental body lacks the legal authority to compel the South African government to compensate victims of xenophobic attacks.

Thousands of Nigerian migrants were recently forced to leave South Africa following renewed attacks by groups of youths targeting African migrants. The Nigerian government had earlier announced plans to seek compensation from South Africa for citizens who lost businesses, properties and investments after fleeing the attacks.

South Africa’s Foreign Ministry spokesperson, Kimiebi Imomotimi Ebienfa, had said discussions on compensation would take place between both governments at the highest levels. Following this, Nigeria’s Acting High Commissioner to South Africa, Alexander Ajayi, disclosed that authorities had commenced documentation of businesses and properties abandoned by affected Nigerians.

However, Falana said the South African government later rejected Nigeria’s compensation demand, claiming that many of those evacuated were in the country illegally — a position disputed by some of the victims.

The legal practitioner argued that rather than approaching the AU, Nigeria, Ghana and other affected countries should file a case before the African Court on Human and Peoples’ Rights in Arusha, Tanzania, seeking redress and damages for victims.

According to him, the alleged expulsion of African migrants violates Article 12 of the African Charter on Human and Peoples’ Rights, which prohibits mass expulsion of non-nationals except in accordance with the law.

“Some of the victims of the xenophobic attacks were killed in the process,” Falana said, adding that statements from some South African officials had encouraged hostility towards migrants.

He recalled that South Africa had previously taken Israel before the International Court of Justice (ICJ) over alleged violations of the Genocide Convention in Gaza, arguing that it should similarly submit to accountability mechanisms over alleged abuses against African migrants.

Falana urged Nigeria and Ghana to approach the African Court under Article 5 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court, seeking provisional measures to prevent further attacks and aggravated damages against the South African government.

He also criticised Nigeria’s refusal to recognise the jurisdiction of the African Court to hear cases brought by individuals and non-governmental organisations, noting that Ghana has accepted the court’s competence.

“Had Nigeria recognised the competence of the court, victims of xenophobic attacks and other gross abuses of human rights would have been able to seek legal redress, including compensation,” he said.

Falana therefore called on the administration of President Bola Tinubu to take steps to enable Nigerian citizens to access the African Court in line with Article 34(6) of the court’s protocol.

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