Human rights lawyer and Senior Advocate of Nigeria (SAN), Femi Falana, has urged the governments of Nigeria and Ghana to institute legal proceedings against South Africa at the African Court on Human and Peoples’ Rights over alleged xenophobic attacks and the forced displacement of African migrants.
Falana, in a statement issued on Sunday, criticised the decision by both countries to report South Africa to the African Union (AU), describing the move as diversionary and incapable of securing justice or compensation for victims.
According to him, the African Union lacks the legal authority to compel the South African government to compensate foreign nationals who suffered losses during the attacks.
His comments followed renewed xenophobic violence in South Africa, which forced thousands of Nigerian migrants to flee the country after attacks reportedly targeted African immigrants.
The Nigerian government had earlier announced plans to seek compensation for citizens who lost businesses, properties and investments during the unrest.
South Africa’s Foreign Ministry had, however, rejected the compensation demand, arguing that many of the Nigerians evacuated were residing in the country illegally, a claim disputed by several of the affected victims.
Falana maintained that rather than relying on diplomatic engagements through the African Union, Nigeria, Ghana and other affected countries should seek legal redress before the African Court on Human and Peoples’ Rights in Arusha, Tanzania.
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He argued that the alleged expulsion of African migrants violates Article 12 of the African Charter on Human and Peoples’ Rights, which prohibits the mass expulsion of non-nationals except in accordance with established legal procedures.
According to him, some victims of the xenophobic attacks were killed, while inflammatory remarks by certain South African public officials allegedly encouraged hostility against African migrants.
Falana recalled that South Africa had previously approached the International Court of Justice over alleged violations of the Genocide Convention in Gaza, insisting that the country should equally submit itself to continental judicial accountability over allegations of human rights abuses against African migrants.
He urged Nigeria and Ghana to invoke Article 5 of the Protocol establishing the African Court on Human and Peoples’ Rights by filing a suit seeking provisional measures to halt further attacks as well as aggravated damages against the South African government.
The senior lawyer also criticised Nigeria’s continued refusal to recognise the jurisdiction of the African Court to entertain cases brought directly by individuals and non-governmental organisations, noting that Ghana has already accepted the court’s competence under Article 34(6) of the protocol.
According to him, had Nigeria recognised the court’s jurisdiction, victims of xenophobic attacks and other serious human rights violations would have been able to seek compensation and other legal remedies directly before the court.
Falana therefore called on the administration of President Bola Tinubu to immediately take steps to recognise the competence of the African Court, enabling Nigerian citizens to access the continental judicial mechanism whenever their rights are violated.