FG Condemns Killing of Nigerians in South Africa, Demands Justice

The Federal Government of Nigeria has unequivocally condemned the recent killings of Nigerian nationals in South Africa, demanding thorough investigations and justice for the victims. This incident underscores a persistent challenge in bilateral relations between the two African powerhouses, marked by recurring xenophobic violence targeting foreign nationals. This article examines the legal and diplomatic ramifications of these events, focusing on South Africa's obligations under international human rights law and its domestic legislative framework, particularly the recently enacted Prevention and Combating of Hate Crimes and Hate Speech Act, 2023. It further explores Nigeria's right to diplomatic protection for its citizens abroad and the available avenues for seeking redress under international law, highlighting the critical need for effective enforcement and accountability to prevent future occurrences and uphold regional stability.

The Federal Government of Nigeria has issued a strong condemnation following reports of the killing of Nigerian nationals in South Africa, calling for immediate and comprehensive investigations to ensure that perpetrators are brought to justice. This latest incident reignites concerns over the safety and security of foreign nationals, particularly those from other African countries, residing in South Africa, a nation grappling with a complex history of xenophobic violence. The recurring nature of these attacks has consistently strained diplomatic relations between Nigeria and South Africa, two of Africa's largest economies and influential states.

This article aims to provide a legal analysis for practising attorneys and legal professionals, dissecting the international and domestic legal frameworks governing the protection of foreign nationals and the responsibilities of host states. It will delve into South Africa's obligations under international human rights instruments and its domestic legislation designed to combat hate crimes, juxtaposed with Nigeria's right to exercise diplomatic protection on behalf of its aggrieved citizens. The overarching objective is to illuminate the legal pathways for accountability and redress, and to consider the broader implications for regional cooperation and the rule of law.

Under customary international law, a State has the right to exercise diplomatic protection on behalf of its nationals who have suffered injury as a result of an internationally wrongful act attributable to another State. This principle, affirmed by the International Law Commission's Draft Articles on Diplomatic Protection (2006), establishes that diplomatic protection is a right of the State, not of the individual, and typically requires the injured national to have exhausted all available local remedies in the host State. The Permanent Court of International Justice, in the Mavrommatis Palestine Concessions case, famously articulated that by taking up the case of one of its subjects, a State is in reality asserting its own right to ensure respect for the rules of international law in the person of its subjects.

South Africa, as a signatory to key international human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the African Charter on Human and Peoples' Rights, is bound by international obligations to protect all individuals within its jurisdiction from discrimination, hate speech, and xenophobic attacks. These instruments mandate states to respect, protect, promote, and fulfil human rights, including the right to life, dignity, and security of person, without distinction based on national or ethnic origin. Domestically, South Africa's Constitution, 1996, also guarantees human dignity, equality, and freedom from violence for everyone within its borders.

The historical context of xenophobia in post-apartheid South Africa is well-documented, with numerous waves of violence targeting foreign nationals, particularly those from other African countries, since 1994. These incidents, often fueled by socio-economic grievances and scapegoating, have resulted in deaths, injuries, displacement, and destruction of property. Nigeria, in response to these recurring challenges, adopted a "Citizen Diplomacy" foreign policy in 2007, aimed at safeguarding the welfare and interests of its nationals abroad and enhancing its image internationally.

South Africa's legislative response to hate crimes has culminated in the enactment of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023 (Act 16 of 2023), which was assented to by President Cyril Ramaphosa in May 2024. This Act criminalises hate crimes and hate speech, defining a hate crime as any recognised offence motivated by prejudice or intolerance based on specified characteristics, including nationality, migrant, or refugee status. While the Act represents a significant step towards fulfilling South Africa's international human rights obligations, its effectiveness hinges on robust implementation and enforcement. The challenge remains in translating legislative intent into tangible protection and accountability, given the persistent nature of xenophobic violence and concerns about insufficient police response and prosecution in past incidents.

The recurring violence against foreign nationals, including Nigerians, raises serious questions about South Africa's adherence to its international human rights commitments. The African Commission on Human and Peoples' Rights has previously deplored such attacks, calling on the South African government to conduct prompt, thorough, and impartial investigations, ensure accountability, and provide access to justice and reparations for victims. A failure to effectively investigate, prosecute, and punish perpetrators of xenophobic violence could be construed as a breach of South Africa's obligations under instruments like the African Charter on Human and Peoples' Rights, which guarantees rights to equality, dignity, and security of person for all individuals, including non-nationals.

Nigeria's condemnation and demand for justice fall squarely within its right to diplomatic protection. Under the ILC Draft Articles, Nigeria can invoke South Africa's responsibility for injuries caused to its nationals by internationally wrongful acts. However, the exercise of diplomatic protection is typically subject to the exhaustion of local remedies rule, meaning Nigerian nationals must first pursue all available legal and administrative avenues within South Africa. This includes reporting crimes to the South African Police Service and pursuing judicial remedies through the South African courts. If local remedies are unavailable, ineffective, or unduly prolonged, Nigeria may then have a stronger basis to pursue international avenues, such as engaging bilateral mechanisms like the Nigeria-South Africa Bi-National Commission or, in extreme cases, international arbitration.

The diplomatic relationship between Nigeria and South Africa has often been characterised as a "love-hate relationship," oscillating between cooperation and tension, particularly exacerbated by xenophobic incidents. While Nigeria played a crucial role in the anti-apartheid struggle, the post-apartheid era has seen economic competition and social tensions contribute to anti-immigrant sentiment. Nigeria's foreign policy, particularly its "Citizen Diplomacy" initiative, places a high premium on protecting its citizens abroad. The Nigerian Senate has, in the past, urged the Federal Government to secure fresh diplomatic guarantees for the safety of Nigerians and to demand the prosecution of those responsible for violence. The ongoing challenge is to move beyond condemnations and diplomatic appeals to concrete, enforceable measures that ensure the safety and rights of all foreign nationals in South Africa.

Furthermore, the role of the Director of Public Prosecutions in authorising hate crime prosecutions under the new South African Act is critical. This centralised authorisation aims to ensure consistency and seriousness in addressing such offences, but its effectiveness will be measured by the actual number of successful prosecutions and the deterrent effect on future violence. The South African Human Rights Commission has also highlighted the need for sustained commitment to addressing xenophobia and for an effective early warning system for crimes against non-nationals.

The Federal Government of Nigeria's condemnation of the killings of its nationals in South Africa underscores the urgent need for robust legal and diplomatic action to address recurring xenophobic violence. For legal practitioners, the focus remains on ensuring that South Africa's domestic legal framework, particularly the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023, is effectively implemented to provide justice for victims and deter future attacks. This requires diligent investigation, prosecution, and appropriate sentencing for hate crime perpetrators, alongside proactive measures to prevent such violence.

Practitioners should advise Nigerian nationals in South Africa on the importance of exhausting local remedies, while simultaneously advocating for Nigeria's government to vigorously pursue diplomatic protection and, if necessary, explore international legal avenues. The efficacy of bilateral mechanisms, such as the Bi-National Commission, must be enhanced to foster greater accountability and cooperation. Ultimately, sustained political will from both Nigeria and South Africa, coupled with effective legal enforcement and public education campaigns, is essential to dismantle the structures of xenophobia and uphold the fundamental human rights of all individuals, irrespective of their nationality, thereby strengthening regional stability and the rule of law across the African continent.