Xenophobia: Falana Calls for South Africa to Face African Court
The diplomatic standoff between Abuja and Pretoria over compensation for Nigerians uprooted by xenophobic violence has entered a sharper legal phase, with human rights lawyer and Senior Advocate of Nigeria, Femi Falana, insisting that only a regional court, not the African Union, can force South Africa to pay. His intervention reframes a bilateral grievance as a test of Africa’s own justice machinery, and it lands at a moment when thousands of African migrants have already fled the continent’s most industrialised economy.
In a statement issued on Sunday, Falana urged the governments of Nigeria and Ghana to institute proceedings against South Africa before the African Court on Human and Peoples’ Rights in Arusha, Tanzania, rather than pursue the matter through the African Union. “The decision of the Governments of Nigeria and Ghana to report South Africa to the African Union is completely diversionary and time-wasting,” he said, adding that “both countries ought to have realised that the African Union lacks the competence to direct the Ramaphosa administration to pay compensation to the victims of xenophobic attacks.”
His remarks followed South Africa’s reported rejection of Nigeria’s demand for compensation for citizens who abandoned businesses, investments and properties as they fled renewed attacks. Falana branded Pretoria’s stance “sheer insensitivity,” noting that South African authorities justified the refusal by alleging that many affected migrants were in the country illegally, a claim the victims have disputed. He said the case should be filed under Article 5 of the 1998 Protocol establishing the Court, with the two governments seeking both provisional measures to halt further attacks and aggravated damages.
The compensation fight is the aftermath of one of the most sustained waves of anti-immigrant mobilisation South Africa has seen in years. Since April 2026, the citizen-led March and March movement, founded in Durban and led by former radio host Jacinta Ngobese-Zuma, staged demonstrations across Pretoria, Johannesburg and Durban, joined by the vigilante group Operation Dudula. The movement set an unofficial deadline of 30 June for undocumented foreigners to leave.
According to the Armed Conflict Location and Event Data Project, nearly 100 demonstrations against illegal migration occurred on 30 June alone, bringing June’s total to at least 150, more than all comparable protests recorded in the previous twelve months combined. Some gatherings reportedly drew more than 15,000 people, including traditional Zulu regiments known as the Amabutho. ACLED assessed that roughly a quarter of June’s demonstrations turned violent, usually involving looting or vandalism of businesses believed to belong to foreign nationals.
The human toll accumulated quickly. Human Rights Watch reported on 20 May that vigilantes had attacked African and Asian nationals with golf clubs and sjamboks while police looked on. Near Mossel Bay, roughly 55 shacks were torched over the weekend of 30 May, some reportedly with people still inside. Mozambique confirmed on 2 June that five of its citizens had been killed. By the end of June, South African authorities said more than 25,000 people had been processed for departure, with Nigeria, Ghana, Zimbabwe, Malawi and Mozambique organising repatriation flights and buses. Wire agencies reported four deaths linked directly to the campaign.
For Nigeria, the losses carried names. Falana’s earlier May petition to the African Commission cited two nationals, Amaramiro Emmanuel and Ekpenyong Andrew, reportedly killed in April 2026 in separate incidents involving personnel of the South African National Defence Force. He recalled that at least 127 Nigerians had been killed in xenophobic attacks by 2019, and accused South African authorities of a consistent failure to prosecute perpetrators.
Falana’s insistence on the African Court over the African Union rests on a real distinction in authority. The Court, established by a protocol adopted in Ouagadougou in June 1998 and in force since January 2004, delivers binding judgments and can order reparations. The African Union’s political organs, by contrast, can deliberate and condemn but cannot compel a member state to pay damages to individuals.
The catch lies in access. Nigeria has ratified the Court’s protocol, but it has not deposited the declaration under Article 34(6) that would allow its citizens and non-governmental organisations to petition the Court directly. As things stand, only a handful of African states, among them Ghana, Mali, Malawi, The Gambia, Burkina Faso and Tunisia, currently permit such direct access, and several others, including Tanzania, Benin, Côte d’Ivoire and Rwanda, have withdrawn theirs after unfavourable rulings. Where a state has not made the declaration, a complaint must first pass through the African Commission in Banjul, which may then refer it to the Court.
This is why Falana pressed the Bola Tinubu administration to recognise the Court’s jurisdiction. “If Nigeria had recognised the competence of the court, victims of xenophobic attacks and other gross abuses of human rights in South Africa and other African countries would have been able to seek legal redress, including payment of compensatory damages,” he said. State parties themselves, however, may bring a case directly, which is the route he urged Abuja and Accra to take.
Even a favourable ruling would confront the Court’s central weakness, enforcement. A 2021 assessment by the Court itself found that only about 7 percent of its judgments, and almost none of its orders on provisional measures, had been implemented by states. Kenya, for instance, has faced repeated non-compliance orders over the Ogiek indigenous rights case. Any award against South Africa would depend on Pretoria’s willingness to honour it, since the African human rights system has no independent means of collection.
Falana anchored his argument in Article 12 of the African Charter, which prohibits the collective expulsion of non-nationals except in accordance with law, and drew a pointed parallel with South Africa’s own conduct on the world stage. Pretoria brought a genocide case against Israel at the International Court of Justice over the war in Gaza, and Falana argued it should equally submit to regional accountability for failing to protect African migrants within its borders. He also faulted President Cyril Ramaphosa’s call for migrants to respect South Africa’s “laws and traditions,” reading it as tacit endorsement of the hostility.
The friction is not new. Major outbreaks in 2015 and 2019 produced deaths, destroyed businesses and forced mass evacuations of Nigerians, each round straining relations between Africa’s two largest economies and rival diplomatic heavyweights. What distinguishes 2026 is the scale of organised departures and the first coordinated push by multiple governments to seek redress rather than simply evacuate and move on.
Whether Abuja and Accra act on Falana’s counsel remains to be seen. The Federal Government, through Acting High Commissioner to South Africa Alexander Ajayi, has said it began documenting abandoned businesses and properties to support its compensation claim. Converting that inventory into a legal filing at Arusha would mark a significant escalation, and would place the credibility of Africa’s flagship human rights court, long constrained by limited membership and weak compliance, under a spotlight it has rarely faced on so public a stage.