South Africa Should Account For Dereliction Of Duty, Says Oyebode

Professor of Law and Chairman, Office of International Relations, Partnerships and Prospects University of Lagos, Akin Oyebode weighed in on the issue of attacks against Nigerians resident in South Africa. He spoke with AJIBOLA AMZAT via e-mail on the options available to Nigeria to address the problem.

Some people said what happened in South Africa is not Xenophobia, but an attack with genocidal tendency. How will international law view the attack?
The distasteful events, in my view, are symptomatic of misplaced aggression, bordering on wilful murder which could very well degenerate to genocide if not speedily arrested. The fact that the rioters picked on innocent, defenceless fellow Africans to vent their spleen for whatever reason(s) constitutes a grievous indictment of and challenge to post-apartheid South Africa.

Under international law, South Africa is obliged to respect and protect all aliens domiciled in its territory, be it under the standard of national treatment or the most-favoured- nation standard. More pointedly, we now have what is called the duty to protect which empowers the international community to intervene in any country where there is wanton disregard and violation of human rights. South Africa might qualify for such treatment if it proves unable or unwilling to do the needful to curtail this blight on its face before the entire world.

What are the legal instruments that Nigeria and other affected countries can invoke on the matter of the wilful attack against their nationals?

There are quite a number of options open to Nigeria and other affected countries. First and foremost, there is the possibility of bringing South Africa to account for dereliction of duty in protecting fellow Africans from savage attacks by its nationals by bringing up the matter at the next AU Summit or initiating proceedings against the country at the African Court on Human Rights and Justice
Secondly, South Africa can be dragged before the International Court of Justice (ICJ) with a view to seeking reparations for the breach of the rights of the victims of unwarranted attacks in South Africa which constitute brazen breaches of the international obligations of South Africa. Furthermore, SADC member-States can very well bring the matter before the regional body, of which South Africa is a veritable member in order to seek relief for the death and injuries suffered by their nationals.

Can the threat of attack by Nigerians against South African investment in Nigeria find protection under international law? 

As far as Nigeria is concerned, the option of reprisal action or retorsion can be explored in order to bring it home to South Africa that this country would not condone flagrant violations of rights of its citizens resident and lawfully carrying-out their businesses in South Africa. Breaches of international law carry consequences and the earlier South Africa is made to realise this, the better for all concerned. However, Nigeria’s response must be well and carefully calibrated in order not to worsen the situation. We should as much as possible desist from mob action and self-help which could engender unintended consequences.

In what ways can this incident re-shape the relations between South Africa and Nigeria and other countries affected? 

Relations between Nigeria and South Africa, have, at best, been testy largely on account of the rivalry existing between both countries for leadership on the continent and in relation to the quest for a permanent seat on the UN Security Council. Besides, the re-basing of the Nigerian economy which has now put Nigeria ahead of South Africa has not altogether been music in the ears of our South African brothers and sisters.
There is, in principle, nothing wrong with competition so long as it is and remains healthy but hostility to fellow Africans occasioned by envy and hatred is, quite frankly, dysfunctional and counter-productive and is to be roundly condemned by all persons of goodwill.
South Africa is now obliged to soothe all frayed nerves by offering compensation or restitution to the aggrieved and immediately embark on a well-thought out conscientisation of its people regarding the necessity to appreciate the historical place and role of their country in projecting and defending the African personality. If this is not done, the loss of national esteem, respect and friendship throughout the continent and beyond would be, quite simply, incalculable.

Can the Zulu king who made the incendiary comment be brought before international court?

I make bold to say that he can stand accused before the International Criminal Court on charges of incitement to violence in relation to crimes against humanity and even genocide (if the attacks and killings go on unabated). The precedents of Milosevic, Charles Taylor, Uhuru Kenyatta, Akayesu, and others should be enough lesson for the wise.