Xenophobia shouldn’t be allowed to replace apartheid or fester much longer, writes Monday Philips Ekpe

The peculiarity of South Africa goes beyond its geography, being located at the southern-most part of Africa. Same for its enduring status as arguably the continent’s most successful and thriving economy. That makes it a beautiful bride that’s attractive to opportunity seekers from the less-endowed nations in its part of the planet and elsewhere. But, quite unfortunately, more than many countries on earth, the rainbow nation has hosted two of humanity’s worst conditions: apartheid and xenophobia. While history doesn’t restrict these extreme abnormalities to SA, its association with them has become an albatross. And with the advancement in information and communication technology (ICT) somewhat on steroid, it’s left to the imagination how posterity will remember this enchanting land.

So much has been said about the manic attacks on African migrants by irate South Africans whose angst stems from the belief that their jobs are being snatched by foreigners, particularly blacks. This illogic has been begging to be seen for what it is. A rare chance for official intervention presented itself the other day when South African President Cyril Ramaphosa hosted his Mozambican counterpart, Daniel Chapo, in Pretoria. Ramaphosa challenged his continental colleagues to fix their underperforming economies which make “people to migrate in large numbers and seek refuge in different parts of the continent, including South Africa”. He bungled it right there. It was an endorsement of the sad premise upon which his uninformed, violent compatriots have built their defence. Your Excellency, Sir, no further proofs are needed to show the overarching failure at the various levels of leadership across Africa but framing the issue this way is simplistic.

A presidential statement later tried to clarify Ramaphosa’s stand thus: “These (xenophobic assaults) are the acts of opportunists who are exploiting the legitimate grievances, particularly those of the poor, under the false guise of ‘community activism.’ Some of these people are assuming functions that only state officials are permitted to perform. Such lawlessness will not be tolerated, regardless of who the perpetrators or victims are… In a country with high unemployment, some employers are exploiting undocumented, cheaper foreign labour over hiring citizens and paying them legal wages. This is fuelling social tension and undermining labour protection laws… We are stepping up workplace enforcement against employers who hire undocumented foreign nationals in violation of labour and immigration laws….”

This attempt misses the mark still. If there’s anything black South Africans should avoid like a plague, it’s the “we vs they” narrative. For one, it is a variant of the segregation they suffered in the hands of their white tormentors. True, no one should deny them their right to nationalism having gone through a lot to reach where they are now.

The very arduous route to the freedom that has resulted in their present relative peace and national pride ought to teach them the wisdom in remaining loyal to the famed African brotherhood. South Africans should legally handle the criminals in their midst – citizens and immigrants alike – without resorting to the kind of barbarism that is tarnishing the image of this vibrant and otherwise welcoming country.

Personally, I’ve used five SA visas and forged lasting friendships in the process. I visited different parts and acquired memories that would be with me for the rest of my life. On one occasion, I travelled by road from Johannesburg to Bloemfontein to Cape Town just to catch some of the nation’s energies before flying back to Joburg. Which experience should I even narrate? Is it the tour of Robben Island where the great Nelson Mandela and some other legends of anti-apartheid struggles were kept in confinement?

The day I went to the apartheid museum in Soweto, I came face to face with the harsh, heart-wrenching realism I first encountered in my study of literature. Race-based discrimination and brutality can test anyone’s very soul to the limits. It was by divine intervention that I did not become a racist that day. A re-enactment of some sort of my call on the museum of slave trade in Calabar, Nigeria some years ago. Those who rush to blame South Africans for being protective of their country which is rightfully their heritage are hasty and insincere. They’re clearly misguided and disproportionate in their actions and reactions but measures like retaliation would equally be off-mark.

At this point, our South African brothers and sisters, especially those pushing to get rid of fellow Africans, should kindly take this unsolicited counsel: Be considerate, humble and sober. Most of the attackers are youths who may not be conversant with the country’s quest for emancipation and are left with only whatever the social media dish out. The unprecedented supports that came from the rest of Africa in those days were highly sacrificial and products of genuine love for the victims of the prolonged white rule. Of course, South Africa can’t be blackmailed into throwing its borders open for reckless entry on that score. But it won’t be too much to expect decent, reasonable treatment of aliens from its people.

Let’s not forget that other African nations were not always this hopeless and helpless. What has happened in many cases is an inexorable slide into retrogression. It shouldn’t also be difficult for the rabid South African aggressors to accept that SA today isn’t the same as the one Madiba left behind. Politically, socially and economically, it’s been looking south. The then almighty African National Congress (ANC), an epitome of black power and resurgence in SA, what’s its stature now? Its hold on the reins of national government can no longer be taken for granted. No bad wishes here but tables do turn. Black South Africans can’t say with certainty that they won’t ever need other Africans again.

Ramaphosa needs this introspection urgently. Instead of admonishing his peers to provide adequate amenities in their domains to disincentivise unbridled emigration, he should weigh his own stewardship as president. Has his government done enough to satisfy the basic expectations of the people, to meaningfully bridge the gap between them and their erstwhile masters?

The continent nurses largely self-inflicted wounds, chiefly the over-indulgent, perpetuating, inept and wicked political leaders who have contributed to its underdevelopment more than any other factor. This self-sabotage in a world that’s increasingly contemptuous of weakness and mediocrity is truly tragic. Even if African countries don’t metamorphose into a single geo-political entity, it can and should explore avenues for understanding, integration, cooperation and brotherliness among them and their peoples. Divisive tendencies like the hate monster which periodically bursts loose in SA surely has no place in that equation.

Ekpe, PhD, is a member of THISDAY Editorial Board
X: @monday_ekpe2

The views expressed by contributors are strictly personal and not of Law & Society Magazine.

By Kachi Okezie, Esq.

The comment hit me like a slap: “You hear and see everything with your own eyes and you still want to hear and see again the trial before you gree?” It was made by one Eddie Onyejiaka, in response to my own comment in a thread where I urged the use of the cautionary adjective “allegedly” on reporting an unproven crime that was merely an allegation at the time.

Onyejiaka’s poke at me captures the frustration many Nigerians feel when told to wait for a court before branding an accused person guilty. In that moment, the presumption of innocence sounds like a technical excuse, a shield for criminals, even an insult to victims. But that frustration, understandable as it is, points to a deeper problem. We are angry at a broken system, and in that anger we are tempted to abandon the very principle that protects us all from becoming victims of that system.

The doctrine is simple on paper and revolutionary in practice. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria provides that “every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” It is not some lofty legal theory imported for decoration. It is a constitutional right, rooted in the same common law tradition that shaped our criminal procedure and echoed in international instruments Nigeria has ratified, including Article 14(2) of the International Covenant on Civil and Political Rights and Article 7(1)(b) of the African Charter on Human and Peoples’ Rights. The Supreme Court has repeatedly described it as sacrosanct and settled.

In practical terms, it means this: when the state accuses you of a crime, the burden lies entirely on the prosecution to prove guilt beyond reasonable doubt. You do not have to prove your innocence. You may remain silent from beginning to end, and no court can convict unless the state produces credible evidence making guilt the only reasonable conclusion. Lord Sankey’s words in Woolmington v DPP ([1935] AC 462), still ring true in Nigeria today: the presumption of innocence is the golden thread running through criminal law, and no attempt to whittle it down can be entertained.

Why does this matter? Because criminal justice is not about satisfying public outrage. It is about discovering truth through a process designed to minimize the risk of convicting the innocent. Once we discard the presumption, we invert the burden and create a system where accusation becomes condemnation. That is not justice. It is punishment without trial. In a country where allegations travel faster than facts on WhatsApp and Facebook, the consequences are immediate and often irreversible. Reputations are destroyed, families shattered, livelihoods lost, and no acquittal months later can fully repair the damage.

In C.O.P v. AMUTA (2017) LLJR-SC, the Supreme Court emphasised that unless the prosecution establishes a prima facie case, an accused person cannot even be called upon to enter a defence, because to do otherwise would undermine the constitutional presumption of innocence.

The real difficulty in Nigeria is not that the law is silent. It is that institutional practices routinely undermine the very right the Constitution guarantees. People are detained for months on “holding charges” before any proper charge is filed. Courts have repeatedly condemned the practice as unconstitutional and contrary to Section 36, yet it persists. Suspects are paraded before cameras by security agencies and tried in the court of public opinion long before any judge hears the case. Remand becomes a form of pre-conviction punishment, with accused persons languishing in deplorable conditions for years awaiting trial.

Sanusi JCA captured the principle plainly in Musa v. Commissioner of Police: it is better for one hundred accused persons to go free than for one innocent person to be punished. When detention routinely precedes proof, innocence may remain formally proclaimed but becomes practically meaningless.

This is where public misunderstanding becomes dangerous. Many Nigerians see the presumption of innocence as coddling criminals, especially where the alleged offence is heinous or the accused politically connected. There is genuine frustration with the failures of the legal system in combating crime, and some lawyers, judges, and prosecuting agencies have indeed been accused of exploiting procedural protections to frustrate trials of powerful suspects.

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That abuse is real and must be confronted. But the answer is not to weaken the right for everyone. The answer is to make the process faster, more transparent, and more credible, so citizens can trust it enough to wait for it. Reforming bail conditions, reducing prosecutorial delays, and improving facilities for speedy trials would make pre-trial detention less oppressive and more consistent with the presumption of innocence.

The doctrine itself also contains limits. The Constitution provides that nothing in Section 36(5) invalidates laws placing on an accused person the burden of proving particular facts. Statutes may therefore create reverse burdens for specific aspects of certain offences. But these are exceptions, not the rule, and they must be narrowly justified. The general principle remains unchanged: the prosecution proves, the accused defends. That balance reflects a moral choice about the kind of society we want to build. A society willing to risk letting the guilty go free rather than punish the innocent is one that values human dignity and liberty above the convenience of swift condemnation.

Beyond the courtroom, the doctrine serves an important civic function. It teaches restraint. It reminds us that anger, however justified, is not evidence. It reminds us that a viral video is not the same as tested testimony in court. It reminds us that justice capable of enduring must rest on procedure, not on the mood of the mob. When citizens understand this, they stop demanding trial by Facebook and start demanding functional courts, independent prosecutors, and competent investigations. The presumption of innocence becomes a bridge between public outrage and public trust.

Educating the public on this principle is therefore not optional. Rights people do not understand are rights they will not defend. The Administration of Criminal Justice Act 2015 and the Evidence Act 2011 contain safeguards intended to give real effect to Section 36(5), but citizens who do not know these protections cannot insist on them. Civic education must go beyond merely reciting rights. It must explain why they exist, how they operate, and what happens when we abandon them. It must show that protecting the accused today is ultimately what protects the accuser tomorrow.

Nigeria’s criminal justice system remains trapped between the ideal of constitutional fidelity and the reality of institutional failure. Bridging that gap requires more than passing new laws. It requires a shift in public consciousness. We must learn to hold two truths at once: victims deserve justice, and accused persons deserve a fair trial. These ideas are not in conflict. They are two sides of the same coin.

So when someone asks why we cannot simply convict based on what we saw online, the answer is not legal jargon. It is this: once we begin punishing people before trial, there is no principled place to stop. The line between the accused and the guilty collapses, and in that collapse, everyone becomes less safe. The presumption of innocence is not a gift to criminals. It is a shield for the innocent, and in a country of over 220 million people, any one of us could someday need that shield. If we truly want a justice system that works, we must be willing to defend due process even when the person on trial is unpopular. That is the price of living under the rule of law, and it is a price worth paying.

Kachi Okezie, Esq. is a Legal Practitioner and member of the Abuja branch of the Nigerian Bar Association.

The views expressed by contributors are strictly personal and not of Law & Society Magazine.

Oyo State recorded the ugly incident of the mass abduction of pupils and teachers last Friday. Kwara State is almost gone, with many towns and villages deserted. Osun State, which shares a boundary with Kwara, no longer sleeps with both eyes closed. Ondo State is gradually becoming the kidnapping headquarters of Yorubaland. Ekiti State fares no better in this season of infamy, just as Ogun State also suffers frequent attacks. Very soon, Lagos may join this axis of torment, and there will be nowhere left to hide.

Assessing the situation at the weekend, a section of Afenifere, the pan-Yoruba socio-political organisation, declared that Yorubaland is under siege. The group made the statement in response to the three coordinated attacks on schools in Oriire Local Government Area of Oyo State.

During the attacks, a member of staff was killed, while a principal and scores of pupils were abducted. The precision and coordination with which the criminals carried out the attacks lend weight to Afenifere’s conclusion that “Yorubaland is now under siege”. On that point, I cannot disagree with the group.

But that is where my agreement ends. Beyond the rhetoric about the South-West — once regarded as one of the country’s safest regions — now being ravaged by armed herdsmen, kidnappers and terrorists, Afenifere’s statement leaves much to be desired of a group the nation once looked up to for moral direction and political clarity.

How the group found it easy to place the blame at the doorsteps of the South-West governors and government while insulating the almighty Federal Government and the Commander-in-Chief of the Armed Forces, President Bola Ahmed Tinubu, beats my imagination.

How a lengthy statement by Afenifere failed to trace when the rain began to beat Yorubaland, but found it convenient to interrogate the past security measures and facilities put in place and procured by the governors of the South-West region, shows very clearly that Afenifere is not ready to tell itself the home truth!

The elders of our land say: Àgbà tí kò ke’hùn sòrò, á ketan sáré (the elder who refuses to speak loudly when it matters will run with bow legs in his old age). This ageless admonition becomes more relevant with Afenifere and its posture over the Oyo State school abduction.

Any good student of Stylistics and Discourse Analysis will easily decipher that the factional Afenifere’s National Publicity Secretary, Jare Ajayi, who endorsed the statement issued by the group, cut the picture of a man who is afraid of hurting the power-that-be! The entire statement was blind to the crucial roles and responsibilities which the constitution and its fundamental principles confer on the president and the Federal Government, but chose to put the state governments on the spot.

It became even worrisome when Afenifere, in the inconsequential reference it made to the Federal Government in the whole saga, went on a praise-singing orchestra to commend ‘the swift visit’ of the Inspector General of Police, Tunji Disu, to the crime scene following the kidnap incident. In that same breath, the group lambasted the South-West governors, when it submitted that: “The actions of South-West governors in recent times do not suggest that they appreciate the enormity of the responsibility they shoulder concerning the security of their land.” Haba!

We should understand this. Nobody says the South-West governors should not be made to account for their spending on security. Any governor, anywhere in the country, should be made to justify any money spent on security or any other social service.

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But Afenifere exposed its fatal bias against the South-West governors when it added that “In view of the fact that the primary duty of government is the security and welfare of the people, governments in South-West states of Nigeria must prove that they are alive to their constitutionally assigned responsibilities. Everything must be done to ensure that no area in the region experiences attacks by kidnappers and bandits anymore….”

The above statement is in bad taste. Afenifere ought to know, or should be made to know that whatever Oyo State Government or any other state government provides to boost security is just complementary. The security of every inch of Nigeria is the responsibility of the Federal Government. That is what our unitary constitution says. And, this is why the president is called the Commander-in-Chief of the Armed Forces. No governor answers that appellation; no governor controls the police, or even the Civil Defence Corps.

As of today, only the President has the sole responsibility to appoint Service Chiefs, the Inspector General of Police (IGP), and heads of other paramilitary forces. The appointment, posting, transfer and retention of Commissioners of Police are by the whims and caprices of the President through his appointed IGP. Nigeria runs a centralised police system. If anyone should be blamed for the level of insecurity in the nation, the president and the Federal Government should carry the can of blame squarely.

That state governments begin to acquire security surveillance equipment outside the limits imposed on their powers by our peculiar constitution, points to one thing: the failure of the government at the centre which got so much and has been delivering so little. That is why the establishment of the South-West Security Network otherwise known as Amotekun, was resisted by the then government of General Muhammadu Buhari.

But for the willpower of the South-West governors led by the late Governor Rotimi Akeredolu of Ondo State (May God continue to rest his soul), the entire Yorubaland would have long been taken over by the marauders ravaging the area today and Afenifere would have had no comfortable place to issue its one-sided statement.

Again, we should also have the courage to tell Afenifere that its assertion to wit: “In view of the fact that the primary duty of government is the security and welfare of the people, governments in South-West states of Nigeria must prove that they are alive to their constitutionally assigned responsibilities,” is a misplaced one! Granted that every level of government should pay attention to the security of the people, the sole responsibility of the quoted verses of bias by Afenifere is that of the Federal Government. The group cannot be gaslighting the South-West governors on insecurity in the region while leaving the chief culprits, the President and his Federal Government to keep playing the ostrich!

Where, in Afenifere’s thinking, is safe in Nigeria? Is the group not aware of the fact that even on the streets of Abuja, where the President resides, Nigerians are kidnapped daily? After tasking the South-West governors on the deplorable security situation in the zone, why did the group fail to ask the Federal Government to wake up to its responsibility but rather ‘commend the IGP’s swift visit” to Oriire Local government Area? After the visit, have the victims been released?

I hate to act the devil’s advocate for the South-West governors or any governor whosoever. But the truth must be told. Afenifere must be made to go back in history to discover that the rain of insecurity has been beating Yorubaland for long. It must be told that history records it for posterity that when in July 2019, the daughter of the faction of Afenifere that issued the statement in discourse, Pa Reuben Fashoranti, was murdered, and the entire evidence pointed at killer herdsmen, the then National Leader of the All Progressives Congress (APC) asked us to provide the cows to show that the killers were indeed Fulani herdsmen!

When that happened, the then united Afenifere, in a statement by its National Publicity Secretary, the late Yinka Odumakin, relying on the eyewitness account of the incident, said on Friday, July 12, 2019, that Mrs. Funke Olakunri, the daughter of Pa Fashoranti, was killed by herdsmen. Two days later, on Sunday, July 14, 2019, the APC National Leader, who today is the President and Commander-in-Chief of the Armed Forces, President Tinubu, countered him.

While on a condolence visit to the old man, Tinubu quipped: “Excuse me, I am extremely concerned about security and I don’t want a stigma. … How many years ago have we faced insecurity in this country and cases of kidnapping, is Evans who was arrested, and his disclosure, then a herdsman? I don’t want to be political, I will ask you, where are the cows?”

That statement by Tinubu exonerated the suspected killers of Olakunri and insulated the then Federal Government, which in all ramifications was flat-footed on the issue of insecurity! Afenifere cannot afford to toe that crooked line of insulation today.

The group would have made my day if its statement had been all-encompassing. The Federal Government cannot be totally out of blame in this matter. This is just as the state governors, especially in the South-West, should up their game. The South-West governors need to know that like politics, security is also local. Having scaled through the hurdles of establishing Amotekun, one would have expected that the governors would nurture the outfit like a fragile baby.

Apart from Oyo State where the security outfit has the face of seriousness, it is almost dead in the remaining states of the region. It is abysmal that a governor who would fly a $15,000 per hour private jet to Abuja to go and lobby for second term or after-tenure senatorial ticket would find it difficult to spend heavily on Amotekun, on local hunters and vigilantes who are the first point of contact on security matters in their locality.

Amotekun is too lofty an idea to be left to die! It is embarrassing that we are remembering the dead, Akeredolu, while the living are still kicking. When an old man begins to look up to his dead child for help, the living ones should begin to interrogate their existence!

As our Rome burns from the banditry of the Fulani, Afenifere should not be seen again playing the omo-wa-ni (he-is-our-child) politics by shielding the president and blaming only the South-West governors. The President is Afenifere’s son. No father should be scared to scold his errant, failing child no matter how influential the child is!

The views expressed by contributors are strictly personal and not of Law & Society Magazine.