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The federal government has reportedly begun plans to drag the South African government to the African Court on Human and Peoples Right in Arusha, Tanzania.        

                The government is taking the action to enforce the fundamental rights and freedoms of Nigerians and other African nationals in South Africa who are victims of xenophobic attacks. According to a source in the Federal Ministry of Justice, The federal government is exploring the legal option due to the refusal of the South African government to adopt diplomacy to resolve the attacks. The source reportedly noted that Nigeria is a party to the African Charter on Human and Peoples’ Rights, having ratified the charter on June 22, 1983. He further explained that the legal option is also predicated on Nigeria’s ratification of the Protocol to the African Charter on Human and Peoples Rights on the establishment of an African Court on Human and Peoples Rights, done on May 20, 2004 “Following repeated incidents of killings, maiming and destruction of properties of Africans, especially Nigerians living in South Africa, and since it appears diplomacy has failed to prevent the South Africans from committing xenophobic attacks on foreigners, particularly Nigerians, it behooves the federal government to exercise its duty under international law to protect the rights of its citizens in diaspora. “It is an elementary principle of international law that a state is entitled to protect its subjects, when injured by acts contrary to international law committed by another state, from whom they have been unable to obtain diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own rights, its right to ensure, in the person of its subjects, respect for the rules of international law," the source was quoted to have said.
                  According to reports,the source also explained that the Nigerian government may even be compelled by the court to take legal action if it does not want to. He continued: “In a South African reported case, Kaunda v. President of the Republic of South Africa, which lends credence to the Nigeria’s position, the Constitutional Court of that country states that: ‘There may … be a duty on government, consistent with its obligations under international law, to take action to protect one of its citizens against a gross abuse of international human right norms. “A request to government for assistance in such circumstances where the evidence is clear would be difficult, and, in extreme cases, possibly impossible to refuse. It is unlikely that such a request will ever be refused by government, but, if it were, the decision will be justiciable and the court will order the government to take appropriate actions.’ “Thus even if Nigerian government is refusing to act in this circumstance, Nigeria can be compelled to take action by the court. The decision of the South African Constitutional Court is further corroborated by Article 19 of the Draft Articles on Diplomatic Protection, which provides that: ‘A state is entitled to exercise diplomatic protection according to the present draft articles, give due consideration to the possibility of exercising diplomatic protection, especially when a significant injury has occurred; take into account, wherever feasible, the views of injured persons with regard to resort to diplomatic protection and the reparation to be sought; and transfer to the injured person any compensation obtained for the injury. Nigeria is thus entitled to take action in this xenophobic attacks on her citizens because South Africa has blatantly and with impunity failed to apply the ‘National Treatment’ principle, treatment equal to that given by South Africa to its own nationals to foreigners within its territory and consistently encouraged gross violation of the fundamental rights and freedoms of Nigerian citizens living in that country.