odwin Tsa, Abuja

 

The Federal government is to initiate legal actions against the South African government before the African Court of Human and Peoples’ Right in Arusha,  Tanzania, following the collapse of diplomatic moves to stop the killings in the country.

The legal option is to enforce the fundamental rights and freedom of the affected Nigerians and other African nationals.

According to a highly placed source at the Federal Ministry of Justice on Thursday, the action is consequent upon 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.

Besides, the legal option, according to the source at the ministry, it is further 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

 

Specifically, the source said “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 behooves the Federal government to exercise its duty under International law to protect the rights of its citizens in the Diaspora.

“It is an elementary principle of international law that a state is entitle 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 – it’s 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 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 government, but if it were, the decision will be justifiable 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 Article 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 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 the gross violation of the Fundamental Rights and Freedoms of Nigerian citizens living in that country.”

 

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.

 

When our correspondent sought the reaction of the Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN) on the issue, he declined comments.

 

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.