State Obligations In South Africa And Nigeria

Eze Onyekpere

The senseless killing and looting of properties of foreigners in South Africa dominated the news for the greater part of last week. For the first time in so many years, with the exception of football events, Nigerians were united in their view that the treatment meted to Nigerians and other black foreigners in South Africa was wrong. What happened in South Africa were grievous violations of human rights and fundamental freedom.

This discourse draws the contours of state responsibility for the protection of human rights and fundamental freedoms, including the basic obligation of governments to maintain law and order, prosecute crimes and ensure security of lives and property.It links the obligation of the South African State, which it is evidently failing to perform, to the Nigerian domestic front and how the Nigerian state responds to the plight of its citizens.

The South African State is under national, regional and international obligation to prevent, investigate and punish any human rights violation carried out in its territory, not only by the acts of public officers, but also directly resulting from acts not directly imputable to officers of the state. This has been aptly captured in the Velasques Rodrigues case of the Inter American Court of Human Rights of July 29 1988in the following words, “…to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out investigations of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victims adequate compensation”.

The above obligations are captured within the concept and attributes of statehood, which is expected to have a government in firm control of its territory, with a monopoly of the instruments of the legitimate use of force and coercion. This is imperative for a guarantee of the territorial integrity of the state. It does not matter that the violations of the rights of Nigerians and other black Africans were perpetuated by non-state actors.

States are also deemed to be in a position to provide remedies for human rights violations and nip violations in the bud. There is evidence of capacity in the South African authorities to perform this duty, but what appears to be lacking is the political will to activate the machinery of state apparatus to protect the rights of black foreign nationals residing in the country.

There are three layers of obligations in matters of human rights: obligations to respect, protect and fulfill. Failure to perform any one of the three obligations constitutes a violation of human rights and engages the states’ responsibility.

The obligation to respect requires states to refrain from directly interfering with the enjoyment of human rights. Thus, the right of foreigners including Nigerians in South Africa is violated if the South African authorities engage in arbitrary detention, denial of personal liberty, killing or looting of property.

The obligation to protect requires states to prevent violations of such rights by third parties. Thus, the failure of the authorities to ensure that the police and other South African security agencies protect foreigners against attacks on their life and properties amounts to a violation of the rights of the victims.

The obligation to fulfill requires States to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of the rights of all persons legitimately within their territory.

When a South African security chief clearly spoke in words that support attacks of foreigners, it was a direct indictment on the government of South Africa and stands condemned in law, morality and reason. The lame excuse that foreigners in South Africa are responsible for their spiraling crime wave cannot be the reason for such attacks.

The police and other security agencies across the world are paid to prevent, investigate and prosecute criminals. As such, is the South African government by its sheer supportive validation of xenophobia telling the world that its police authorities have been overwhelmed by crime?

When you listen to such allegations as to how foreigners have taken over their houses, jobs, etc. one begins to wonder whether foreigners came into South Africa and used violence to take over houses. The foreigners did not buy the land, houses or built the houses or they do not pay rent to landlords? Such postulations evidently sound pathetic.

How is this attack on Nigerians in South Africa related to the domestic situation in Nigeria? It is related. Every day, the Nigerian media is rife with true life stories of killing, rape, destruction of property, kidnap and all unimaginable forms of criminality by terrorists, bandits and criminals of every description in Nigeria. A good percentage of the crime goes either uninvestigated or not properly investigated. The criminals are hardly successfully prosecuted and made to pay for their crimes. Prosecutions, when they get started, take forever to conclude. Soldiers ambush and kill policemen on lawful duty and Nigerians have not been told of any ongoing prosecution when the facts are clear and the culprits are known.

Ethnic and community clashes have claimed thousands of lives while government commissions of inquiry and white papers making recommendations on how to punish offenders, stop future senseless killings and destruction of property gather dust on the shelves. Most attempts to call the government of the day to order end up being seen as political attacks instead of a wake-up call.

The general impression and image out there, regionally and internationally is that Nigeria has large swathes of ungoverned territory, almost akin to a jungle where everything goes and anyone can get away with murder if he knows how to press the right buttons.

Thus, the same state obligations applicable to South Africa in human rights and fundamental freedoms, protection of citizens, etc. apply with equal force to Nigeria’s treatment of Nigerians in Nigeria. It is even naturally expected that one will get better treatment from his home government than a foreign country.

The truth is that no country may go out of its way to treat a person better than the country of birth and origin. Nigerians are treated like third class citizens in their own country; they get killed and nothing happens. Thus, foreign governments simply follow suit and treat our rights with the greatest contempt and levity.

The beginning of Nigerians getting the respect they deserve in any part of the world, begins with the Nigerian government treating Nigerians in Nigeria with the greatest respect for their human dignity and personhood.