Xenophobic Attacks against Nigerians in South Africa: the Challenge of State and International Responsibility

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Cyril Ramaphosa

By Bola A. Akinterinwa

Relationship between South Africa and Nigeria moved from being total enmity and policy of no compromise with apartheid in the period 1960-1994, to friendly enmity in the post-apartheid era, from 1994 to date for various reasons: the end of Cold War rivalry opens new grounds for inter- and intra-African rivalry, and necessarily put an end to the East-West rivalry to which everyone was accustomed to. Emphasis began to be placed more on the quest for development resources from Africa. Political and diplomatic attention is given more to South Africa while economic attention is given to Nigeria. This partly led to the emergence of rivalry between Nigeria and South Africa.

Secondly, the rivalry prompted the misconception and misperception of Nigeria’s roles in the anti-apartheid struggle by the people of South Africa. While, at the governmental level, anti-apartheid sentiments largely explain Nigeria’s hostility vis-a-vis apartheid South Africa, the relationship is driven at the people-to-people level by xenophobic attacks.

Thirdly, the Government of South Africa has visibly shown a declining capacity, or inability, or still, non-preparedness to nip the xenophobic attacks in the bud. Put differently, while the capacity of government is dwindling, on the one hand, the attacks are on the increase, on the other hand, to the dismay of both the African and global communities.

The recidivist character and increasing number of the xenophobic attacks can be traced to three main factors: failure of ‘responsibility to protect’; wrong perception of what Nigeria stands for in intra- and inter-African relations, especially in terms of protection of black dignity; and failure of Nigeria’s foreign policy, which is basically reactive, lack-lustre and largely predicated on poverty of ideas.

In terms of failure of responsibility to protect, it should be understood at the level of state responsibility, international responsibility, and international responsibility to protect (IR2P). State responsibility, also understood as national responsibility, is based on the principle that the rule of sovereignty necessarily implies responsibility. In other words, there cannot be any sovereignty that does not also entail some responsibilities, meaning that every sovereign state has a responsibility to ensure the protection and security of all the people(s) living under its jurisdictional competence. Thus, the Government of South Africa owes it a responsibility to protect the lives and property of all peoples, especially the foreigners in its country.

As regards international responsibility, it has a specific meaning: when there is a case of failure of state responsibility or when state irresponsibility is manifest, the international community can raise or call attention to the ‘international responsibility of a country failing in its contractual obligations to the international community. Such a state will be required to show commitment to the universal rules of global governance, failing which the application of the principles of collective security can be invoked.

In this regard, international responsibility is considered a right under international law and all Member States of the international community are made liable for breaches of their obligations the moment such breaches are attributable to the State. In other words, States are held responsible for violations of international law, breaches by its internal institutions, as well as breaches by its citizens.

What is particularly noteworthy about this international responsibility is that, in the event of any breach, the state in breach is required to make a full reparation for whatever injury it caused as a result of such a breach and for which the state is internationally liable. Reparation, in this regard, is either about restitution of the original situation where possible, giving compensation where it is not possible, and showing satisfaction or (acknowledgment or apology for the breach) if neither is possible.

For instance, Nigeria’s Foreign Minister, Geoffrey Onyeama, noted on Tuesday, September 3, that ‘full compensation has to be paid because as we have discovered from previous experience, a lot of these Nigerians lost their property and it is a long drawn out process and very often are not compensated for it. But on this occasion, the Nigerian Government is going to fight for full compensation and hold the government of South Africa to count.’

In this regard, media reports have it that the Nigerian Government has the intention to refer the matter to the African Court of Human and People’s Right in Arusha, Tanzania for possible adjudication. The adoption of a legal option to the dispute is a welcome development following the failure of diplomacy and in light of the fact that, if the South African government has failed to protect Nigerians legally resident in its country, the Government of Nigeria cannot and must afford the luxury of not also seek the protection of its citizens in South Africa.

The case of IR2P is more interesting, but quite different in terms of nature of offences covered. IR2P officially entered into the lexicon of diplomatic and political protection in 2005 following the initiative of Canada and many years of codification of the principles by the United Nations General Assembly. The IR2P has a 4-point preventive pursuits: prevent genocide, war crimes, ethnic cleansing, and crimes against humanity.

In this regard, the emphasis is that nationals of a country must not be allowed to suffer from misguided policies of Government or its bad governance. If a government fails in its duty to protect its citizens and all other people residing legally in its country, the international community owes it a duty to intervene and protect the people by either seeking to prevent or put a stop to the crisis.

The essence of the foregoing distinction among the three types of responsibility in international relations is to underscore the point that, in whatever sense we are looking at the problem of xenophobia, the South African government has an unconditional responsibility not only to protect its nationals, but particularly also the legally residing foreigners. This is why the international responsibility of South Africa is at stake

The second factor is how South Africans perceive the Government and people of Nigeria. The perception, at the level of government, is cautiously proactive but aggressively negative, at the level of the people. The cautious character of the government-to-government relationship is largely driven by the consideration that Nigerians in South Africa are drug peddlers and human traffickers, a perception that also explains the hostility or xenophobic attitudinal disposition towards Nigerians and other foreigners. And probably too, this may be the reason why the Government of South Africa has always adopted a lukewarm attitude of inaction towards crimes being committed against Nigerians.

In the eyes of the South African Minister of Police, the attacks on Nigerians are not xenophobic but criminal. This is a self-defeatist argument apart from being quite arguable. A crime is generally considered as an offence against the state. Xenophobia is believed to be a fear of foreigners, especially in terms of threats to one’s cultural values and survival. As such, can the two be separated? Can there be a crime without an element of xenophobia? Of course yes. Can there be xenophobia without crime? The general literature on xenophobia in international relations has clearly shown that both crime and xenophobia go par passu.

In this regard, the criminal aspect of xenophobia is necessarily raised at the level of how xenophobia is manifested: how is fear responded to? How is it contained? More often than not, it is when people want to respond to threats against what they stand for that they are also driven by uncontrollable anger and that they inflict their grievances on their perceived enemies. In doing so, they consciously engage in criminal activities which the Government of South Africa is, with much difficult, trying to justify. This is how a crime and xenophobia constitute the two sides of the same coin both at the level of the people and the government.

In spite of this South African hostility, South African businesses are thriving well in Nigeria. It is precisely the perception by Nigerians of the fact that the environment of business for South Africans in Nigeria is made very friendly while the contrary is the case in South Africa for Nigerian businessmen that an unfriendly attitude towards South Africa has developed. This unfriendly attitude is well reflected in the various reactions at home and abroad.

General Reactions
In Zambia, the South African High Commission in Zambia was reported to have been set ablaze, while the Football Association of Zambia (FAZ) also officially cancelled the friendly match with South Africa scheduled to take place on home soil on Saturday, 7th September, 2019. In Nigeria, the mega Shoprite in Lekki was vandalised. Nigeria’s Foreign Minister convened a press conference on Wednesday, 4th September and made known the recall of Nigeria’s High Commissioner to South Africa. A special envoy was also sent to South Africa. On this same day, the MTN closed all its stores nationwide indefinitely.

In Nigeria, for example, the ruling party, All Progressives Congress, has called for the nationalisation of South African businesses in Nigeria. Some observers have also asked for the application of the rule of reciprocity. In fact, some South African businesses, like the Shoprite in Lekki, Lagos, were attacked by aggrieved Nigerians.

Some notable Nigerians have called for the suspension of diplomatic ties with South Africa until the misunderstanding is finally settled. In the words of Senator Ike Ekweremadu, ‘it is quite disturbing that the Government of South Africa has not taken decisive steps to end these attacks, which have led to wanton loss of lives and property of fellow Africans, especially Nigerians. The attacks defy and desecrate everything African brotherhood stands for, for a country that gained freedom with the support, sweat, and sacrifice of fellow African nations among which Nigeria clearly stands out… The attacks have reached scary and desperate degrees and call for desperate actions on the part of Nigeria, other African nations, and the African Union. It will therefore not be out of place for the Federal Government to suspend diplomatic relations with South Africa until full assurance of safety of Nigerians and their properties in South Africa is secured, adequate compensation paid for the damages, and the perpetrators also brought to book.’
These suggestions are good to the extent that they also raise more fundamental questions about the future linkages between suspension of diplomatic ties and the challenges of state and international responsibility. Will the suspension of diplomatic relations put an end to xenophobic attacks on Nigerians in South Africa? Will the calling to question of the international responsibility of South Africa impact on the obnoxious xenophobia in South Africa? Many questions but few answers!

Strained Ties and International Responsibility
Straining the relationship does not look like an enduring solution for various reasons. First, during the presidential campaigns that brought Cyril Ramophosa to power, one of his major campaign themes was that foreigners should be required to check out of South Africa. They must return to their home countries. Whether he said this for election purposes or otherwise, the truth remains that, as President of South Africa, very little is being done to contain xenophobic attacks against foreigners in his country. It can therefore be safely posited that he might be aiding and abetting the criminal xenophobic attacks on foreigners.
Consequently, it is not the disruption of diplomatic ties that will now neutralise an already well-articulated agenda of non-tolerance of foreigners in South Africa. Breaking off diplomatic ties cannot be enough a solution to the problem. The mindset of the people of South Africa requires a surgical change.

Secondly, there is no disputing the fact that the xenophobic attackers have a completely wrong target. Why should the foreigners be held responsible for the country’s societal problems? The problem of South Africa is essentially about economic wretchedness that has always characterised the lifestyle of black South Africans. When, for instance, the Government of South Africa argues that Nigerians are engaged in drugs peddling and human trafficking in its country, it is simply trying to justify the xenophobic attacks while still admitting that the attacks are not xenophobic but criminally. The relevant question here is simple: who imported the drugs to South Africa? Were they imported by Nigerians? Where were the customs and immigration officers when the drugs found their ways into the country? Why is there silence over the possible complicity of security agencies over the matter? Why give a dog a bad name in order to crucify it?

Another question is how did the prohibited drugs enter South Africa? It is important to also note here that there is a fundamental difference between drug dealers and drug sellers. The main drug barons in South Africa are certainly not Nigerians and surely not black Africans. If truth be told, the non-black people are the dealers of drugs in South Africa. They are the white people. The foreigners living in South Africa are, at best, vendors of drug. If drug is to be considered an issue or a rationale for the xenophobic attacks, there will not only be need to factor in the role of the white drug pushers, especially the Lebanese, but also the need for further, better reflective arguments to justify xenophobia in South Africa, rather than hiding under the pretext of the charge of Nigerians engaging in drug peddling.

The conditionality for better entente as raised by the Government of Nigeria is tenable. However, is the Government of South Africa prepared to accept the conditions for purposes of maintenance and sustainability of diplomatic entente with it? The South African government has already ruled out the aspect of compensation and the Government of Nigeria has indicated the possibility of going to the court on the matter. In all these cases, where is the future of regional and continental integration? Where is the future of African unity? These questions bring us to the problems of possible suspension of diplomatic relations and the challenges of both state and international responsibility.

Suspension of ties is easier to do than restoring it. The suspension of diplomatic ties does not mean that there will not still be diplomatic ties. The suspension or outright diplomatic rupture of relations simply means that the contacts will no longer be direct. The diplomatic mission of another country will be required to act on pressing matters on Nigeria’s behalf. This diplomatic mission is often generally referred to as the ‘protecting power.’

Apart from this, resumption of ties is not easy either. Serious negotiations will still be required. The leaders of both countries in dispute must have the political will to want to resume relationship. Looking for a third party, the protecting power, who will not only be required to mediate and protect the interests of the country being protected, but will also be acceptable to the two parties, is another kettle of fish entirely that will have to be looked into. Perhaps the most disturbing aspect is the eventual issue of non-trade, non-cooperation, non-exchange at various levels, and particularly, consular services. Nigerians may not have an easy access to such diplomatic and consular services until the resumption of direct ties. Consequently, there is the need for a greater caution in the adoption of Nigeria’s so-called ‘decisive measures.’ Straining of diplomatic ties should be a last resort. Meanwhile, the rule of reciprocity should always be constructively applied.

What is particularly noteworthy about breaking off of diplomatic relations is that the strain in relations is generally and more often than not, temporary as there is always room for ending the disruption of ties in the long run. For instance, the Foreign Minister of South Africa, Naledi Pandor, considers xenophobic attacks on foreigners as embarrassing. As she put it, ‘our government regrets all violence against foreign-owned stores of Africans from other countries who are resident in South Africa.’ With this regret, can it be rightly argued that the South African government accepts international responsibility for the attackers? Should South Africa therefore be required to make reparation for the torts of its citizens?

Answers to the foregoing questions necessarily raise the place of international responsibility as a potential, recidivist and critical issue in Nigeria’s future relations with South Africa. Nigeria wants South Africa to pay adequate compensation to the victims or their families where there are losses of lives. The South African government has not shown any preparedness to accept to do so.

To a logical extent, South Africa’s refusal to make any reparation is tenable, tenable because South African businesses have been reciprocally vandalised in Nigeria. Put differently, will Nigeria be prepared to also make reparation on behalf of those who might have torched the businesses of South Africa in Nigeria? This is how and why the aftermath of the current xenophobic attacks cannot but continue to remain an issue in the conduct and management of relationships between the two countries in the foreseeable future. If South Africa has rationalisations for xenophobia, the only choice left is either to have an African integration without South Africa or to discontinue with the efforts at continental integration.