In a statement, Falana criticised the decision by both countries to report South Africa to the African Union (AU), describing the move as ineffective because, according to him, the continental body lacks the authority to compel Pretoria to compensate victims.
He described the approach as “diversionary and time wasting,” insisting that the African Court in Arusha, Tanzania, is the appropriate forum to seek justice and damages for affected migrants.
His comments follow renewed xenophobic attacks in South Africa that forced thousands of Nigerian migrants to flee after groups of youths allegedly targeted African nationals.
The Nigerian government had earlier announced plans to demand compensation from South Africa for citizens who lost businesses, investments and other properties during the violence.
South Africa’s Foreign Ministry spokesperson, Kimiebi Imomotimi Ebienfa, had said discussions on compensation would be handled by both governments at the highest diplomatic level. Nigeria’s Acting High Commissioner to South Africa, Alexander Ajayi, also disclosed that officials had begun documenting businesses and properties abandoned by affected Nigerians.
However, Falana noted that the South African government later rejected Nigeria’s compensation request, arguing that many of those evacuated were residing in the country illegally, a claim disputed by some of the affected migrants.
He maintained that Nigeria, Ghana and other countries whose citizens were affected should instead file a joint case before the African Court on Human and Peoples’ Rights, seeking compensation and other remedies for victims.
According to Falana, the alleged expulsion of African migrants contravenes Article 12 of the African Charter on Human and Peoples’ Rights, which prohibits the mass expulsion of non-nationals except in accordance with the law.
“Some of the victims of the xenophobic attacks were killed in the process,” Falana said, adding that statements made by some South African officials had fuelled hostility towards migrants.
The senior lawyer also recalled that South Africa had approached the International Court of Justice over alleged violations of the Genocide Convention in Gaza, arguing that the country should likewise submit itself to regional accountability mechanisms over alleged abuses against African migrants.
Falana urged Nigeria and Ghana to invoke Article 5 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court by seeking provisional measures to halt further attacks and pursue aggravated damages against the South African government.
He further criticised Nigeria for failing to recognise the jurisdiction of the African Court to hear cases filed by individuals and non-governmental organisations, pointing out that Ghana has already accepted the court’s competence.
“Had Nigeria recognised the competence of the court, victims of xenophobic attacks and other gross abuses of human rights would have been able to seek legal redress, including compensation,” he said.
Falana also called on the administration of President Bola Tinubu to take the necessary steps to enable Nigerian citizens to access the African Court in line with Article 34(6) of the court’s protocol.