Borders Against Brothers: Intra-African Xenophobia and the Failure of the African Union's Free Movement Law

Twenty-five years after Durban, African people still cannot move freely across their own continent. The Durban Declaration and Programme of Action named xenophobia against non-nationals as a central source of contemporary racism.^[1] Yet the African Union's own legal answer to that problem, the 2018 Protocol on Free Movement of Persons, remains stuck far short of the ratifications needed for it to take effect.^[2] This gap between declared commitment and legal reality reflects a deep failure to treat African mobility as a right rather than a threat, even among African states themselves.

The stalled Free Movement Protocol and the continuing waves of intra-African xenophobia, most visible in South Africa, are two faces of the same problem. Continental law recognises the wrong. State practice keeps repeating it. Durban's twenty-fifth anniversary is an appropriate moment to ask why.

A Promise Made Twice: From Abuja to 2018

The legal commitment to free movement is not new. The 1991 Treaty Establishing the African Economic Community bound member states to gradually remove barriers to the movement of people and committed them to a future protocol giving effect to that goal.^[3] That protocol finally arrived in January 2018, when the African Union adopted the Protocol to the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Right of Establishment.^[4] It was meant to guarantee African citizens the right to enter, reside and establish a business in any member state, alongside the African Continental Free Trade Area agreement signed weeks later.

The Protocol needs fifteen ratifications to enter into force. As of this year, only four states have ratified it: Rwanda, Niger, Mali and São Tomé and Príncipe, out of thirty-two signatories.^[5] Egypt, Nigeria and South Africa, the continent's three largest economies, have not signed it at all.^[6] Niger and Mali have since left the Economic Community of West African States, meaning that, strictly speaking, no current ECOWAS member has ratified a protocol that West African leaders themselves championed. Successive African Union coordination meetings through 2025 set targets for reaching fifteen ratifications that were repeatedly missed.^[7] Goods, capital and services move across African borders under the Continental Free Trade Area. African people largely do not.

A Recognised Wrong Ignored: The African Commission's Mass Expulsion Cases

The African Commission on Human and Peoples' Rights has condemned intra-African mass expulsion for three decades, well before the 2018 Protocol existed. In 1996, it considered the case of 517 West Africans expelled from Zambia within two days in February 1992, on the stated ground that they were in the country unlawfully.^[8] The Commission held that the mass and rapid nature of the arrests gave the victims no real opportunity to challenge their expulsion in court, and that singling out West Africans for expulsion, while a Zambian government minister of the same period publicly linked foreign traders to crime, amounted to discrimination on the ground of nationality.^[9] It found violations of the rights to equality, to have one's cause heard, and to freedom of movement guaranteed under the African Charter on Human and Peoples' Rights.^[10]

A year later, the Commission reached the same conclusion regarding Angola, which had rounded up and expelled West African nationals between April and September 1996, preceded by documented brutality against Senegalese, Malian, Gambian and Mauritanian nationals.^[11] It held these expulsions illegal and arbitrary, in breach of the Charter's due process and non-discrimination guarantees, and noted that the victims had no possibility of challenging the expulsions in court.^[12] Remarkably, Angola repeated the conduct. In a second communication decided in 2008, the Commission found that Angola had again engaged in the mass expulsion of foreign nationals, this time expanding its reasoning to hold that a violation could arise even without proof that victims were targeted specifically for their nationality, race or religion.^[13] Three decades of Commission jurisprudence, in other words, have not stopped African states from expelling fellow Africans in exactly the manner condemned.

The Domestic Flashpoint: Operation Dudula and the Limits of a Court Order

South Africa is currently the clearest illustration of this failure operating at street level, not merely at borders. A vigilante movement called Operation Dudula, whose name means "to force out" in isiZulu, emerged in 2021 with the stated aim of expelling foreign nationals regardless of their immigration status.^[14] Its members have raided shelters, evicted foreign tenants, shut down migrant-run businesses, blockaded hospitals and clinics, and forced the closure of at least one school. In April 2022, a mob in Diepsloot beat, stoned and burned to death a Zimbabwean national, Elvis Nyathi, after Operation Dudula's then leader addressed a crowd blaming foreigners for crime.^[15] Independent monitoring by Xenowatch recorded at least 612 deaths from xenophobic violence in South Africa between 2008 and 2021, with Gauteng province accounting for nearly forty per cent of recorded incidents.^[16]

In November 2025, the Gauteng High Court delivered judgment in proceedings brought by Kopanang Africa Against Xenophobia and allied organisations against Operation Dudula, its leadership, and the South African government.^[17] Adams J opened his judgment by affirming that the rights to privacy and dignity attach to everyone, not only citizens, and that human dignity has no nationality.^[18] The court interdicted Operation Dudula from demanding identity documents from private persons, from inciting hate speech on the ground of nationality, and from interfering with foreign nationals' access to healthcare, schooling and housing.^[19] It also found that the South African government had failed for more than five years to implement key components of its own 2019 National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, a plan explicitly adopted to give effect to South Africa's commitments under the Durban Declaration.^[20] The court ordered the government to establish an early warning system for xenophobic hate crimes and to begin publishing disaggregated data on such offences.^[21]

The judgment is a significant domestic remedy. It is also, necessarily, limited. A national court can discipline a vigilante movement and direct its own government to implement its own plan. It cannot address why African states, twenty-five years after Durban and seven years after adopting a continental Free Movement Protocol, still frame the presence of other Africans as a security problem to be policed rather than a right to be protected.

Why the Law Keeps Failing: Borders as Unfinished Colonial Business

Recognition of the wrong exists at every level, from the African Charter to national courts. What is missing is the political will to treat freedom of movement among Africans as a serious commitment rather than a symbolic one. This is not simply about administrative delay. Colonial borders were designed to fragment African societies and control African labour.^[22] Their persistence, and their continued use by African governments themselves to sort who belongs and who does not, suggests that independence changed who holds the power to exclude without changing the logic of exclusion itself.

The economic pressures the Durban call for submissions itself identifies are visible in the Operation Dudula record. Its founding action in Soweto targeted foreign-run businesses directly, and its subsequent campaigns against traders, clinics and schools consistently blame migrants for unemployment and strained services.^[23] Genuine material hardship is being redirected toward the most visible and least powerful targets available, fellow Africans, rather than toward the states and structures responsible for that hardship. A Free Movement Protocol that most large economies refuse to ratify cannot correct this on its own. But its absence removes a legal and normative floor that might otherwise make such scapegoating harder to sustain.

Free Movement as Reparative Justice

Durban's unfinished demand was to connect racism to the structures of imperialism and colonial partition that produced it. Intra-African xenophobia belongs squarely within that unfinished demand. Treating it seriously requires more than domestic litigation after the harm has occurred. It requires African states to ratify the instrument they have already written for themselves, to build the continental monitoring and data mechanisms that the Gauteng High Court has now ordered South Africa to build domestically, and to name the free movement of African people, not only African capital, as itself a form of reparation for a border regime none of them originally chose. Twenty-five years on from Durban, the measure of progress will not be another declaration. It will be whether a Malian trader can cross into Angola, or a Zimbabwean electrician can settle in Soweto, without becoming the target of the very state violence the Declaration was written to end.

Gregory Elphas is an LLB candidate at Kabarak University School of Law, Kenya. He is an undergraduate researcher with a developing interest in state responsibility and technology governance in Africa.

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