Nigeria stands to incur a huge cost if it decides to nationalise South African businesses in Nigeria in retaliation against xenophobic attacks on its citizens living in South Africa. This is because there is a clause in the trade agreement between both countries that clearly forbids such action, THISDAY has learnt.
This is just as the Governor of Lagos State, Nigeria’s commercial capital, Mr. Babajide Sanwo-Olu, warned on Saturday that his government will not tolerate any act of lawlessness, as public anger mounted against South African interests in Nigeria. There were reprisal actions in Lagos and other parts of the country over the xenophobic attacks against foreigners in South Africa.
Also, in a strongly worded statement released in the wake of the xenophobic attacks in South Africa by its nationals, the Standard Bank Group, Africa’s largest banking group by assets, with headquarters in South Africa, condemned the act as shameful. The statement signed by Group Chief Executive of Standard Bank Group, Sim Tshabalala, said of the nearly one week of violence against Africans in South Africa, “We stand ashamed before our African brothers and sisters and before the world.”
Investigation by THISDAY revealed that Nigeria and South Africa signed a “Reciprocal Promotion and Protection of Investments” deal on April 1, 2000.
The agreement effectively forbids nationalisation of investments by both countries. This, however, conflicts with recent calls by the ruling All Progressives Congress (APC) on the federal government to take steps to nationalise South African shares in MTN and other businesses with South African content. APC National Chairman Adams Oshiomhole had said the recent turn of events offered the country an opportunity to reflect on why the federal government should continue to allow the companies to repatriate millions of dollars to South Africa every year.
But the bilateral business agreement makes adequate and generous provisions for the protection of investments made by the citizens of both countries in the respective countries.
A copy of the agreement obtained by THISDAY read in its preamble: “The Government of the Republic of South Africa and the Government of the Federal Republic of Nigeria (hereinafter referred to as the Parties), desiring to create favourable conditions for greater investment by investors of either Party in the territory of the other Party;
“Recognising that the reciprocal promotion and protection of investments will be conducive to the stimulation of individual business initiative, contribute to the development and increase the prosperity of both Parties;
“Recognising the right of the Parties to define the conditions under which foreign investment can be received and the investor’s duty to respect the host country’s sovereignty and domestic law;
“Determine to increase favourable conditions for greater investment by nationals and companies of a Party in the territory of the other Party.”
A clause in the document provides stringent conditions for limiting the effect of the investment deal.
In the exception clause, Article 6 titled “Expropriation” is quite specific and forbids the nationalisation of the other party’s assets. It says in the event that one of the parties’ national interest requires that it nationalises the other party’s investments, the agreement provides that this cannot be done with impunity.
Liability will follow. The agreement also makes adequate provisions for enforcement of the provisions through arbitration.
Going by the letter and spirit of the agreement, Nigeria may not escape liability if it nationalises assets belonging to South Africans citizens.
Article 6 reads: “Investments of investors of either party shall not be nationalised, expropriated or subjected to measures having effects equivalent to nationalisation or expropriation (hereinafter referred to as “expropriation”) in the territory of the other party except for public purposes, under due process of law, on a non-discriminatory basis and against payment of prompt, adequate and fair compensation.
“Such compensation shall be at least equal to the market value of the investment expropriated immediately before the expropriation or before the impending expropriation became public knowledge;
“Whichever is the earlier, shall include interest at a normal commercial rate until the date of payment, shall be made without delay and shall be effectively realisable.”
The agreement, in Article 6 (2), provides: “The investor affected by the expropriation shall have a right, under the domestic law of the party making the expropriation, to prompt review, by a court of law or other independent and impartial forum of that party, of his or its case and of the valuation of his or its investment in accordance with the principles referred to in paragraph 1 of this Article.”
In Article 5, titled “Compensation for Losses”, the conditions are even more instructive.
It states: “Investors of one party whose investments in the territory of the other party suffer losses owing to war or other armed conflict, revolution, a state of national emergency, revolt, insurrection or riot in the territory of the latter party shall be accorded by the latter party treatment, as regards restitution,
indemnification, compensation or other settlement, not less favourable than that which the latter party accords to its own investors or to investors of any third state.
“Without derogating from the provisions of paragraph 1 of this Article, investors of one party who, in any of the situations referred to in that paragraph suffer losses in the territory of the other party resulting from:
“(1) Requisitioning of their property by the forces or authorities of the latter party; or
“(2) Destruction of their property by the forces or authorities of the latter party, which was not caused in combat action or was not required by the necessity of the situation, shall be accorded restitution or adequate compensation.”
It would be recalled that in his reaction to the xenophobic attacks on Nigerians in South Africa, Oshiomhole had called on the federal government to nationalise South African businesses in Nigeria. He made the call at the end of an emergency National Working Committee (NWC) meeting of the ruling party in Abuja.
Oshiomhole also listed South African businesses Nigerians should boycott to include MTN, Standard Chartered Bank, Stanbic IBTC, and Multi-Choice, owners of DSTV and GoTv, among others.
He stated: “In order to send a very strong message to South African authorities and the South African people, it is worth it for the Nigerian government to take steps to take over the remaining shares of MTN that are owned by South Africans so that MTN becomes fully Nigeria-owned.
“If Nigeria decides at least for the next 30 days to stop using MTN, they would have sent a clear message.”
The APC chairman also asked the government to revoke the licenses granted to banks owned by South Africans in Nigeria.
We Will Not Tolerate Reprisal Attacks, Lawlessness, Says Sanwo-olu
However, Sanwo-Olu said no form of lawlessness in revenge for the attacks in South Africa will be condoned in Lagos State. He gave the warning when he visited scenes of some retaliatory attacks in the state. The governor disclosed that over 5, 000 staff of the malls with South African interests looted by hoodlums had been forced out of job.
Sanwo-Olu promised to meet with the Inspector General of Police, Mohammed Adamu, over the 125 suspects arrested during the violence. The governor, who was accompanied by members of his cabinet to the Novare Lekki and Surulere plazas that were looted, said property worth millions of naira were carted away.
He said, “When people come into a store overnight to loot the goods, it is an act that must be condemned. For instance, in the mall we are (Surulere), over 2, 000 staff are now out of job. Also, at the Lekki mall, over 3, 000 staff are also affected by this act. These are places that Nigerians are the ones affected more.
“Unfortunately, during my inspection of both plazas, I discovered that those affected were all indigenous stores and companies.”
The governor stressed that to prevent future occurrence such actions, business owners should engage in strong interaction with their host communities. He said when business owners engage in activities that create social inclusion between them and the host communities, residents would protect rather than vandalise their businesses.
According to him, “We need to have our business owners embark on a lot of engagement with their local communities. Business owners need to engage in strong interaction with the community where they do business.
“This will make the people to attach some significance to the brand as it concerns what that brand has done for them in their communities. That brand then becomes something that one relates with. The residents will know that this is the brand that has taken people out of poverty and other things done for them to develop.
The governor said in a news release by his chief press secretary, Gboyega Akosile, “We have seen the amount of enormous destruction in both plazas and the first thing is to condemn in strong terms. Whatever could have led to this, it is an extensive destruction of people’s property.
“As a government we have come out to condemn this and to assure business community that ease of doing business is paramount to us and security of lives and property is part of the to-do list for us.
“We are charging our security operatives to stop at nothing to ensure that they keep all of these facilities safe and secure.”
Standard Bank Group; Ashamed of Attacks
The Standard Bank Group said in the statement by its chief executive, Sim Tshabalala,
“Over the last few days, South Africa has been deeply saddened by a wave of violence against our fellow Africans.
“We stand ashamed before our African brothers and sisters and before the world.
“On behalf of all of us at the Standard Bank Group, I offer our deepest sympathy to all who have suffered and lost.
“We stand in solidarity with our fellow Africans. We stand in solidarity with the great majority of South Africans who live by the values of our Constitution, which commands us to defend the rights and dignity of everyone who lives here.
“Like many other South African companies, our businesses throughout Africa are essential to our success and enable us to tackle unemployment, inequality and economic exclusion. When South Africans attack their fellow Africans, we are hurting ourselves.
“We call on all South Africans to support the authorities and civil society in their efforts to restore law and order and to ensure that all perpetrators answer for their actions in a court of law.
“I am very sad that this is the second time during my tenure as Group Chief Executive that I have had to write to the Group about xenophobic violence in South Africa. I hope and pray that I will not have to do so again.
“The underlying causes of most violence are poverty, inequality and unemployment. Let us, therefore, recommit ourselves to doing all we can to promote social solidarity, sustainable economic growth, and human development in South Africa and throughout this great continent that is our home.
“Africa is our home, we drive her growth.”