The resurgence of xenophobic attacks in parts of Africa, particularly South Africa, has once again exposed a major institutional weakness within the African Union (AU). While the continental body has consistently condemned violence against African migrants and reaffirmed its commitment to human rights, its constitutional framework does not empower it to sanction, suspend or otherwise discipline a member state over xenophobic attacks or similar acts of discrimination.

This legal limitation has fueled growing calls by legal experts, diplomats and civil society organizations for a comprehensive review of the AU Constitutive Act to enable the Union respond more effectively to human rights violations that fall short of genocide or war crimes but nevertheless threaten African unity, regional integration and the free movement of people across the continent.

The renewed debate comes against the backdrop of repeated attacks on foreign nationals in South Africa, many of whom are Africans from Nigeria, Ghana, Zimbabwe, Somalia, Ethiopia, Mozambique and other countries. These attacks have claimed lives, destroyed businesses, displaced thousands of migrants and strained diplomatic relations among African states.

Despite widespread outrage and repeated condemnations, the African Union has remained largely confined to issuing statements and encouraging member states to uphold their obligations under the African Charter on Human and Peoples’ Rights. The reason is simple: under its current constitutional framework, the AU lacks the legal authority to punish a member state solely because of xenophobic violence or discriminatory treatment of foreign nationals.

The AU derives its authority from the Constitutive Act of the African Union, which outlines the powers of the organization and the obligations of member states. Although the Act promotes respect for human rights, equality and the dignity of all Africans, it carefully limits the circumstances under which the Union may take punitive action against a member state.

One of the most cited provisions is Article 23 of the Constitutive Act, which governs sanctions. Contrary to popular belief, this article does not authorize sanctions over human rights abuses, xenophobic attacks or discriminatory practices. Instead, it permits sanctions primarily against member states that fail to pay their financial contributions to the Union or refuse to comply with decisions lawfully adopted by AU organs.

Consequently, even where xenophobic attacks result in deaths, widespread destruction of property and forced displacement of migrants, the AU has no constitutional mandate to impose political or economic sanctions on the offending state.

This legal gap has increasingly become a source of concern for those who believe the continental body should play a more assertive role in protecting African citizens wherever they reside on the continent.

Another provision frequently referenced in discussions about AU intervention is Article 4(h), which grants the Union the right to intervene in a member state under exceptional circumstances.

However, this power is reserved exclusively for the gravest crimes recognized under international law, war crimes, genocide and crimes against humanity.

Although xenophobic attacks may involve murder, assault, looting and forced displacement, they generally do not satisfy the strict legal threshold established under Article 4(h), unless they are shown to constitute widespread or systematic attacks amounting to crimes against humanity.

This means that even repeated outbreaks of xenophobic violence, no matter how devastating, ordinarily fall outside the AU’s constitutional intervention powers.

Calls for South Africa to be suspended from the AU over recurring attacks on foreign nationals also overlook another constitutional limitation.

Article 30 of the Constitutive Act provides for the suspension of member states only where governments come to power through unconstitutional means, such as military coups or unlawful seizures of power.

The provision has been invoked in recent years against countries including Mali, Burkina Faso, Guinea and Niger following military takeovers.

It does not permit suspension because of governance failures, human rights shortcomings or discriminatory practices.

Accordingly, a democratically elected government cannot be suspended merely because xenophobic violence occurs within its territory, regardless of the international outrage such attacks generate.

Although the AU cannot impose punitive sanctions in cases of xenophobia, it is not entirely powerless. Its Peace and Security Council (PSC) remains the continent’s foremost political organ for promoting peace, security and stability. Where xenophobic violence threatens regional peace, the PSC can convene meetings, issue communiqués condemning attacks, dispatch fact-finding missions and encourage dialogue between affected countries.

These measures are intended to exert diplomatic and political pressure on governments to improve protection for migrants and prosecute perpetrators.

However, they remain political rather than judicial instruments and carry no legally enforceable sanctions.

Likewise, the African Commission on Human and Peoples’ Rights (ACHPR) plays an important oversight role by monitoring compliance with the African Charter on Human and Peoples’ Rights.

The Commission has repeatedly expressed concern over attacks against foreign nationals and has observed that such incidents may violate several provisions of the Charter, including the rights to life, dignity, equality before the law and freedom from discrimination.

Nevertheless, the Commission’s recommendations are advisory. It cannot compel governments to comply, impose penalties or award compensation to victims.

These constitutional constraints have strengthened arguments that the AU’s legal framework should evolve to reflect contemporary realities.

When the Constitutive Act came into force in 2002, Africa’s principal constitutional concerns centred on military coups, civil wars and genocide. Accordingly, the Act was drafted to address those challenges while preserving state sovereignty and limiting interference in domestic affairs.

More than two decades later, the continent faces a broader range of threats to human rights and regional integration. Xenophobia, ethnic intolerance, hate crimes, discrimination against migrants and targeted attacks on foreign-owned businesses now undermine one of the AU’s central aspirations, an integrated Africa where citizens can move, work and invest freely across national borders.

Critics argue that it is inconsistent for the AU to promote initiatives such as the African Continental Free Trade Area (AfCFTA), the Protocol on Free Movement of Persons and deeper economic integration while lacking effective enforcement powers against states that fail to protect fellow Africans within their borders.

A constitutional review, they argue, should introduce provisions empowering the AU to investigate persistent discriminatory practices, impose graduated sanctions on governments that repeatedly fail to protect African migrants and establish clearer accountability mechanisms where systemic human rights violations occur.

Such sanctions need not immediately involve suspension. They could range from formal warnings and mandatory corrective action plans to targeted political measures, restrictions on participation in certain AU activities or financial penalties where governments demonstrate persistent negligence.

Until such constitutional reforms occur, legal experts maintain that the appropriate avenue for seeking legal accountability lies outside the AU’s political organs.

The African Court on Human and Peoples’ Rights possesses judicial authority to interpret and apply the African Charter and other relevant human rights instruments.

Unlike the AU Assembly or the Peace and Security Council, the Court can issue binding judgments where it has jurisdiction, require states to remedy violations and, where appropriate, order compensation for victims.

Senior Advocate of Nigeria and human rights lawyer Femi Falana has argued that countries whose citizens repeatedly suffer xenophobic attacks should consider interstate proceedings before the African Court rather than expecting the AU itself to punish offending member states.

Such litigation would place the matter before an independent judicial institution capable of determining legal responsibility based on evidence and applicable human rights law.

The recurring xenophobic attacks witnessed in Africa demonstrate that the continent’s constitutional architecture has not kept pace with evolving human rights challenges. While the AU remains an indispensable platform for promoting peace, integration and continental cooperation, its inability to sanction member states over persistent discriminatory conduct exposes a significant legal and institutional gap.

If the African Union is to realize its vision of “An Integrated, Prosperous and Peaceful Africa,” it must possess more than the moral authority to condemn xenophobia. It should also be equipped with carefully defined constitutional powers to hold member states accountable where they repeatedly fail to protect African citizens from discrimination, violence and persecution.

Reviewing the AU Constitutive Act to empower the Union to respond more decisively to xenophobia and other forms of discrimination would not undermine state sovereignty. Rather, it would reinforce the Union’s founding principles of human dignity, equality, solidarity and the protection of all Africans, irrespective of the country in which they choose to live, work or invest.