This Day (Lagos)

NEWS
2 June 2008
Posted to the web 3 June 2008
Lagos

Shocking images of the black-on-black violence and xenophobic attacks recently witnessed in South Africa, especially against Nigerians and other African immigrants have played out on TV screens around the world. CHIDI ANSELM ODINKALU says these attacks should inspire the governments of countries whose nationals were affected, like Nigeria's, to take steps to ensure proper accountability for the ill-treatment of Africans on the continent and create uniform standards of dignified treatment for Africans.

As a generation of Africans arrived South Africa in the early 1990s to take advantage of the new opportunities opened by the end of Apartheid, a new word entered the lexicon of multi-racial South Africa. Amakwerekwere is a neologism that describes foreigners of African origin as an undifferentiated horde on South Africa's streets and neighbourhoods. Hearing for the first time the various languages and dialects that African migrants and investors brought with them to post-liberation South Africa and unable to understand them, the expression "kwere kwere" was born to describe the unintelligibility of the sounds produced by foreign Africans among their South African hosts. Amakwerekwere thus evolved as a pejorative for foreigners of African descent in South Africa.

On May 11 2008, South Africa's uneasy relationship with Amakwerekwere erupted into a murderous orgy of violence. The attacks on foreigners of African origin reportedly started in the high density neighborhoods of Alexandria, near Johannesburg and quickly spread to other settlements, extending as far as Cape Town to the south and Durban in the east. One week later, on May 17, the Congress of South African Trade Unions (COSATU) and People against Suffering, Oppression and Poverty (PASSOP) called a march against Xenophobia. In a statement announcing the march, both groups declaimed: "Foreigners in townships across South Africa live in fear, Their homes are vandalised, their stores looted and even their lives are taken. This inhumanity cannot be allowed to continue."

Within ten days of the onset of the violence, over 50 persons had been reported killed. In addition, over 900 had been seriously injured and tens of thousands have so far been forcibly displaced or forced to flee South Africa in fear for their lives. Specifically, over 25,000 persons of Mozambican descent reportedly fled their places of residence in South Africa and sought refuge in temporary locations or back to Mozambique; as have thousands of Zimbabweans, Congolese, and West Africans of diverse nationalities, including Ghanaians and Nigerians. 40 Kenyans fleeing the violence returned to Nairobi on May 30. The value of property destroyed is estimated to be worth hundreds of millions of Dollars.

Nearly three weeks after the outbreak of the attacks, South African President, Thabo Mbeki, May 26 constituted a cabinet-level, inter-Ministerial task team to address the violence. In a broadcast on the same day, President Mbeki described the violence as "an absolute disgrace", promising that his government would "not countenance such savagery". Following a meeting on May 28, South Africa's Cabinet issued a lengthy statement for the first time condemning the attacks. Offering its own diagnosis of the attacks, the Cabinet statement claimed that "genuine concerns about access to services, such as water, roads and economic opportunities, are being exploited and mis-used to manipulate communities" to attack other Africans. For its part, South Africa's Institute for Race Relations (SAIRR), noted a slew of failures on the part of the government that "contributed to create a perfect storm of lawlessness, poverty and unfulfilled expectations, which has (sic) now erupted into violence."

The Cabinet Statement announced a five-point strategy for dealing with the violence. The measures announced by the Cabinet included the establishment of special courts for the prosecution of alleged perpetrators of the violence; the provision of assistance, including temporary shelter to the victims; co-ordination of relief efforts for the victims with humanitarian agencies; an appeal for re-integration of foreign nationals back into the communities of south Africa; and a programme to accelerate the service delivery capacities of government.

Failure Minimum Standards of Civilisation

Inexplicably, the leadership of the African Union has yet to offer any response to this situation. However, in the last week of May, the African Commission on Human and Peoples' Rights deployed its Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons (IDPs) and Migrants, and former President of the East African Law Society, Mr. Bahamé Tom Nyanduga, to intervene with the South African government on behalf of the victims of these attacks.

Although these most recent attacks have received both global and local media attention because of their scale and durability, they fit a long pattern of episodic outbreaks of targeted violence against foreigners of African origin in South Africa. In one of the more recent instances over a period of three months in Cape Town in 2006, over 40 of the city's population of 4,000 Somalis were killed in targeted attacks which the United Nations High Commissioner for Refugees in South Africa forcefully condemned. In March 2008, at least four foreigners were reportedly killed in townships around the capital city of Pretoria and several hundred others rendered homeless. The government has so far been unsuccessful in explaining these away as routine crimes or the orchestrated acts of a Third force.

South African and international law are clear on the standards applicable to this situation. All human beings enjoy the rights to life, and to safety and security. Government has an obligation to protect all persons within its territory. As a principle of international law, foreigners should be treated in accordance with 'a minimum standard of civilisation', including the obligation to respect their freedom, lives, livelihoods, and property. While every government enjoys a discretion in determining which foreigners to allow into its territory, it cannot discriminate or differentiate among foreigners or between foreigners and its nationals as to the standards of protection and safety security to be accorded to human beings. Article 12(5) of the African Charter on Human and Peoples' Rights, therefore, prohibits the collective expulsion of foreign nationals. Thus a country may not expel or acquiesce in the expulsion or deportation of individuals whom it claims to be non-nationals from its territory unless it respects minimum rules of due process, including the right to challenge on an individual basis both the reasons for expulsion or deportation and the allegation that a person is in fact a foreigner. Even so, effective measures must be taken to safeguard the lives and properties of the affected foreigners.

The International Court of Justice affirmed this principle in May 2007 in the Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of Congo), [Preliminary Objections, International Court of Justice, 24 May 2007, paragraph 46], in deciding in a case brought by Guinea (on behalf of its national and businessman, Ahmadou Diallo) that the government of what was then Zaire had not provided available and effective remedies enabling an individual to challenge acts of expulsion and expropriation that could not be appealed.

In the present situation, the mass flight from South Africa of tens of thousands of foreign nationals of African origin escaping from targeted persecution because of the failure of protection by the government can be equated to collective expulsion of foreign nationals, which is prohibited in international law, including the African Charter on Human and Peoples' Rights, and for which South Africa is responsible.

Additional Measures and Diplomatic Protection

The response of President Mbeki's government when it eventually came sounded firm. In reality, it was inexplicably slow, ponderous, and inadequate. This can be remedied. In addition to the steps belatedly announced by the South African government, additional measures are needed. In particular, the South African government should assist in the recovery of the remains of all the victims killed in the violence and, in collaboration with the governments of their home countries, ensure that these victims and their families are treated with all possible dignity. Families that seek the repatriation of their loved ones killed in this violence should be assured of the assistance of the South African government in transporting the bodies home. South Africa's government should also protect the assets and other properties left behind by the victims with a view to ensuring effective restitution or compensation for the violations and losses suffered by them. They must above all take effective steps to protect all persons within South Africa's territory and convey a clear message of zero-tolerance for the persecution of foreigners in South Africa.

While these steps are implemented, African States, like Nigeria, whose nationals are affected, remain under an obligation to protect their nationals, including those living in foreign countries and affected by these attacks. For this purpose, the facility of diplomatic protection exists in international law. As defined in Article 1 of the draft Articles on Diplomatic Protection of the International Law Commission (ILC) [adopted by the ILC at its Fifty-eighth Session (2006), ILC Report, doc. A/61/10, p. 24] "diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility." As explained by the ICJ in the Ahmadou Diallo case (para. 39), "the scope of diplomatic protection, originally limited to alleged violations of the minimum standard of treatment of aliens, has subsequently widened to include, inter alia, internationally guaranteed human rights." Such steps can include litigation before international or regional courts and tribunals such as the African Court on Human and Peoples' Rights, or claims pressed through standing or ad hoc bilateral or other lawful channels.

These attacks on foreigners of African origin in South Africa can inspire the governments of countries whose nationals are affected, like Nigeria's, to take steps to ensure proper accountability for the ill-treatment of Africans on our continent. In this way, these attacks will have made a seminal contribution to creating uniform standards of dignified treatment for Africans and to discouraging reprisals for a pathology that shames South Africa and its friends within and beyond our continent.