XENOPHOBIA; LEGAL OPTIONS FOR VICTIMS

South Africa has been in the spotlight since last month, following the resurgence of xenophobic attacks on blacks, especially Nigerians there. Some Nigerians have died; homes and businesses have been lost to mobs who accused them of taking their women and jobs. Although Nigeria has criticised the South African government’s handling of the attacks, it has not said how it will help its citizens seek redress. Lawyers have identified options available to the victims. ERIC IKHILAE reports.

The numbers are startling. No fewer than 116 Nigerians have been murdered in South Africa in the past two years in xenophobic attacks, according to the Senior Special Assistant (SSA) to the President on Diaspora Affairs, Mrs. Abike Dabiri-Erewa.

In the first week of last month, when a fresh round of attacks on black foreigners began, Nigerians reportedly lost about five businesses and a church. In the second week, about 15 houses belonging to or rented by foreigners, especially Nigerians, were burnt by South African mobs in Rosettenville, Johannesburg.

The South African government seems helpless to prevent the attacks, which have been occurring since 1994, but there is the perception that the perpetrators enjoy some sort of tacit support from the state and its agencies.

Although some of the country’s leaders condemned the attacks, others rationalised the attackers’ action, claiming that criminals were the target.

The South African High Commissioner in Nigeria, Lulu Aaron-Magnesia, also echoed this view. He said there were concerns among South Africans that a few foreigners, including Nigerians, were involved in drug peddling.

Critics argue that these statements by South African leaders and their agents do not only fuel the culture of hate and intolerance, which xenophobia represents, but a feeling among the civilised world, that South Africa has jettisoned its constitutional provisions of the respect for rule of law and protection of the rights of non-citizens.

They question whether South Africa has elevated barbarism to the level of state policy, where rather than explore the due process of law where an infraction is identified, people resort to mob action, a practice associated with cruelty and crudity, reminiscent of the practice in the stone age.
Reports have it that in the recent attacks, virtually all the victims were killed by the natives, who wielded cutlasses, bricks, and knives.

Mrs Dabiri-Erewa, during a meeting with South African High Commissioner in Nigeria, Lulu Aaron-Magnesia, said: “We have lost about 116 Nigerians in the last two years. And last year alone, about 20 were killed. This is unacceptable to the people and government of Nigeria.”

Besides Mrs. Dabiri-Erewa, many Nigerians, including politicians, have also expressed anger about the development and queried the seeming lethargic response of the Federal Government.
Senate Committee Chairman on Diaspora, Senator Rose Oko expressed dissatisfaction over the killings.

She said: “We have written to the Ministry of Foreign Affairs to avail us with what happened in South Africa between the police and the man. We condemn, in very strong terms, these attacks on Nigerians in South Africa.

“You are aware that in 2016 alone, about 20 Nigerians were killed in extra-judicial manner. Before this time, several had been killed in like manner. There are several incidences of xenophobic attacks on Nigerians in South Africa.

“These attacks came, notwithstanding the contributions Nigeria made towards the liberation of South Africa during the apartheid regime. You begin to wonder why all these attacks? The Federal Government should take harder stance against the country,” Senator Oko said.

Also, the Chairman, House Committee on Diaspora Matters, Rita Orji, faulted the alleged lackadaisical attitude of the Federal Government to the protection of Nigerians outside the country.
Orji, who represents Ajeromi Ifelodun Federal Constituency of Lagos State on the Peoples Democratic Party (PDP) platform, accused the government of over-protecting the businesses and interests of South Africa to the detriment of Nigeria.

She noted that the Federal Government was not exhibiting sufficient interest on issues affecting Nigerians in Diaspora.

“Are they only important to us just because they need to contribute to national development? Are we calling them ours because we needed to get hard currencies remitted by them? What about their health and their businesses, are they being protected?

“Are they being taken care of in the treaties we are signing in this country? Have we taken any bold step to make sure that incessant killings of Nigerians abroad unlawfully are taken care of?

“These are pertinent questions that any Nigerian that loves life would ask. And why would this conspiracy of silence linger while blood is being shed? Nigerians are being killed like chicken in various countries and Nigerians are becoming endangered species?” she said.

Orji, who cited murder cases of Nigerians in South Africa, Libya and others, said her committee had investigated and given reports to the Ministry of Foreign Affairs, but with no visible action taken so far.

How it began
The first main recorded xenophobic attacks were witnessed in South Africa between December 1994 and January 1995, when armed youth gangs in Alexandra Township, outside of Johannesburg, Gauteng Province, destroyed the homes and property of migrants and marched them down to the local police station where they demanded that the foreigners be immediately removed.

These were followed by more attacks across the country in 1998, 2000, 2008, 2009, 2013, 2015, last year and this year. According to a report by the Southern African Migration Project (SAMP), despite a lack of comparable data, xenophobia in South Africa is perceived to have significantly increased after the installation of a democratic government in 1994.

Records have it that cities, which mostly serve as flashpoints of xenophobic violence in South Africa, are those dominated by black immigrants. It was found that whenever such attacks start, black immigrants residing in white dominated areas were always safe, as the native residents hardly participate in such attacks.

The cities identified as traditional xenophobic grounds include Gauteng, Limpopo, Western Cape, Kwazulu Natal and Free State.

Causes and why it persists
According to studies, xenophobia is caused mainly by social and political reasons.

In a 2004 report, SAMP noted that to overcome the divides of the past and build new forms of social cohesion, the South African government “embarked on an aggressive and inclusive nation-building project. One unanticipated by-product of this project has been a growth in intolerance towards outsiders; violence against foreign citizens and African refugees has become increasingly common and communities are divided by hostility and suspicion”.

Similarly, a report by Citizens for Global Solutions (CGS), titled: “The tragedy of xenophobia in South Africa”, said South Africa politicians have used this xenophobic sentiment to rise to power.
It noted: “Many South African politicians have used politics of fear toward immigrants to attain power, making xenophobic statements during their campaigns. And, sadly, many political figures continue to do so.”

It also found out that nationalistic feelings, hang-over of apartheid, envy, frustration, unemployment, failure of the South African police and laziness of black South Africans, among others, often fuel these attacks.

A report by the South Africa-based Human Sciences Research Council (HSRC) identified four causes of the violence. They include: “Relative deprivation – specifically intense competition for jobs, commodities and housing; and group processes, including psychological categorisation processes that are nationalistic rather than superordinate.”

The group also identified “South African exceptionalism, or a feeling of superiority in relation to other Africans; and exclusive citizenship, or a form of nationalism that excludes others.”

Also, a report titled: “Towards tolerance, law and dignity: Addressing violence against foreign Nationals in South Africa” by the International Organisation for Migration found that poor service delivery or an influx of foreigners may have played a role, blaming township politics for the attacks.
It found that community leadership was lucrative for the unemployed, and that such leaders organised the attacks.

Observers blamed the persistence of these attacks on the failure of the South African government to act. They noted that there was no history of prosecution and conviction of past perpetrators, a development they said accounts for why xenophobia will persist in the country.

This position is supported by the concern expressed  by a group, Consortium for Refugees and Migrants in South Africa (CORMSA), after the 2008 attack. It said foreigners remained under threat of violence and that little had been done to address the causes of the attacks.

The organisation complained of a lack of accountability for those responsible for public violence, insufficient investigations into the instigators and the lack of a public government inquiry.

Options for Nigerian victims
Despite the reasons for the attacks, experts argued that the yearly recurrence of this unwarranted circle of losses reflects a failure on the part of the South African government and the inability of the continental body, the African Union, to ensure cohesion in the continent.

They said a major path towards a solution for the continental body to impress it on South Africa and its people that they share a common fate with all other Africans.

This, they argued, would be better appreciated when South African leaders and South Africans are consistently reminded that today’s South Africa would have been impossible without the contributions of Africans and African leadership across the continent in supporting the anti-apartheid movement.

Lawyers, including Femi Falana (SAN), Sebatine Hon (SAN) and Dr. Umar Abubakar, argued that the South African government, under the law, was under the obligation to safeguard the lives and property of all residents in the country.

They contended that the argument by South African leaders, that the attacks were directed at criminals, betrayed the hollowness of their intellects. They argued that it was wrong for that government to look the other way while its citizens commit crimes against residents of other countries, to who it owed the obligation of protection.

The lawyers are of the view that remedies exist for victims of xenophobic attacks in courts, either in South Africa or outside it.

Falana, who threatened to sue the South African government should the attack persists, urged President Zuma, in a recent letter, to urgently identify suspected perpetrators of criminal acts and xenophobic attacks against Nigerians and other Africans living in South Africa and to bring them to justice promptly.

He urged the South African President to promote and ensure access to justice and the right to effective remedy and reparations to victims.

Falana argued that xenophobic attacks and violence are not only human rights violations, but also criminal acts, and the South African government’s persistent failure to proactively address the problems is a serious affront to the rule of law, and amounts to breaches its international human rights obligations under the African Charter on Human and Peoples’ Rights, particularly Article 12 on the right to movement.

“Therefore, Article 12 imposes an obligation on your government to secure the rights protected in the Charter to all persons including Nigerians and other Africans within your country’s jurisdiction. Such obligation is breached when victims are denied the opportunity to be heard regarding the decision to expel them, either prior to or after their expulsion,” Falana said.

He urged Zuma to address the debilitating situation by identifying and arresting the perpetrators, bringing them to justice and be committed to providing access to justice and effective remedy to victims.

“Effectively prosecuting the perpetrators and providing reparations to victims would serve as a deterrent to future attacks. We also urge you to put measures in place to proactively protect non-nationals including Nigerians living in South Africa,” Falana said.

Hon said the option for the victims is for the Federal Government tackle the issue diplomatically and request damages from the South African government, for the losses suffered by its citizens.

“If these options are rejected, the victims can come together and initiate a civil action or actions against the government of South Africa in that country. Such suit can even be initiated in courts here since South Africa has an embassy here.

“Those Nigerians, who are directly affected can sue the South African authorities. If they find it difficult to get local courts in that country to hear their case, they can approach courts outside the country for redress.

“The law is that each government of a country, where people reside, owes it as a duty to protect the lives and property of those residents. So, if the government closes its eyes or chooses to look the other way and allow its citizens to unleash terror on foreigners, the government can be sued. Victims of such attacks can sue the government of South Africa for failing to protect them.

“Honestly, this xenophobia of a thing, is very terrible. It shows serious level of ingratitude on the part the South African government and its people to the contributions of other African countries, particularly, Nigeria to the successful dismantling of the inhuman and barbaric apartheid regime.

”The question to ask the South African leaders, who seem to be comfortable with this unwarranted attacks, is whether it is only the non-South African Africans that are criminals in that country,” Hon said.

Abubakar said the incident in South Africa and its concentration on fellow black Africans were a reflection of the failure of governance. He wondered how South African leaders and its people could forget so soon the sacrifices of other African countries, especially Nigeria, for their country’s
independence from the brutal apartheid regime.

“From the trend of events and the reaction of the South African authorities, the xenophobic attacks on Nigerian and other nationals, it is clear that the South African government is complicit. It has failed in its international obligations to, among others, protects residents in that country.

“In the case of the Nigerian victims, I will advise the Nigerian government to sue for damages on behalf of its citizens, who have been subjected to these unwarranted losses. Should the government refuses to act, I will encourage the victims themselves to sue either in South Africa or Nigeria.”

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