I agree with Mwaura on this. What happened in South Africa should NEVER be repeated anywhere else in Africa! They got to pay up!!!FAIR PLAY - Why Mbeki must compensate the victims of attacks Story by PHILIP MWAURA
Publication Date: 6/7/2008
In international law, when a government acts in good faith and without negligence, the general principle is that it is not liable for rioters’ actions that cause damage. But the government has a duty to show that it has acted with due diligence.
“Due diligence” is legalese for diligence that is reasonably expected from, and ordinarily exercised by, in this case the government in discharging its obligation to keep law and order.
Has the South Africa government shown due diligence in the xenophobic attacks that, according to police, have left 62 foreigners dead, 670 injured and more than 35,000 homeless?
Due diligence is difficult to quantify. However, there has been intense criticism of the way the Pretoria government handled the wave of xenophobic attacks that began on May 11.
The general feeling in both South Africa and abroad is that the government has not done enough.
A front-page editorial in South Africa’s Sunday Times newspaper said President Thabo Mbeki “no longer has the heart to lead.”
His own brother, Moeltsi Mbeki, said recently that the government had lost credibility.
Besides, there have been reports that the Pretoria government had been warned by its National Intelligence Agency of the xenophobic attacks, but President Mbeki has denied this claim.
The government is accused also of wasting time before eventually deploying the army to protect the African immigrants.
By all accounts, the governmental authorities were negligent. And Nigeria was the first nation to say it would seek compensation for its citizens who were victims of the violence.
Kenya followed suit. Other African countries may also stake their claims, especially if those by Nigeria and Kenya stand a chance of succeeding. But will South Africa pay up? This is the million-dollar question.
President Mbeki has personally apologised to Nigerian President Umaru Yar’Adua, who this week visited South Africa, over the issue.
But President Mbeki knows as much as anybody else that apologies, in this case, are not enough.
When such crimes occur victims suffer physical injury, emotional pain and financial loss.
So they need and deserve compensation to help them to defray some of the costs resulting from the crime, such as medical and funeral expenses, lost incomes as well as damaged and looted property.
Only compensation will serve to relieve some of the pain and suffering, and make any apologies meaningful and reconciliation possible.
It is necessary, therefore, that somebody pays for the South African madness. It is a cost that cannot be discounted politically.
There is no way South Africa can continue to play the Big Brother role in Africa unless it squares up on this issue, which goes to the core of African integration.
It is no accident that the pan-African parliament is based in South Africa. And there is no way President Mbeki can meaningfully continue championing his “Ubuntu” and “African Renaissance” cause without squaring up.
He cannot have his cake and eat it.
Legally, he should have no problem paying up.
There are provisions and precedents in regional and international conventions and agreements, rulings of international judicial bodies, consensus among scholars of international law, pronouncements of the international community and organs of the United Nations, as well as international customary law.
For example, the African Charter on Human and Peoples’ Rights establishes the “right to an adequate compensation.” The Universal Declaration of Human Rights states that every individual is entitled to an “effective remedy”, a requirement that is repeated in the International Covenant on Civil and Political Rights and the Declaration on the Elimination of all Forms of Racial Discrimination.
The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985 recommends compensation for victims of crime by the state when it is not available from the offender or other sources.
The declaration says that the state should “endeavour to provide financial compensation to victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes”.
The declaration adds that the family, in particular dependants of people who have died or become physically or mentally incapacitated as a result of such victimisation, should be compensated.
International law principles place a clear obligation on the South African government to pay up.
In any case, President Mbeki should know that compensation will hasten the healing of the psychological wounds inflicted generally on Africans who generously hosted him and his African National Congress cadres during their long struggle against apartheid.
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