Assessing AU framework for making Xenophobic violence strategically unprofitable: South Africa as the first test case

Abstract

This study repurposes well-established trade law mechanism for continental human rights-based
accountability, recognising that the economic harm caused by xenophobic violence to African nationals,
including destroyed businesses, forced displacement, disrupted supply chains, and suppressed cross-border
investment, is functionally equivalent in its trade-distorting effects to the economic emergencies for which
World Trade Organisation (WTO) safeguard mechanisms were originally designed. There is no gainsaying
that recurrent xenophobic violence in South Africa; 2008, 2015, 2019, and 2026 has evolved from episodic
unrest into a systematic political tool used to mobilise electoral support, deflect governance failures, and
scapegoat African foreign nationals. This study assesses the viability of an African Union (AU) framework
designed to render such violence strategically unprofitable through economic and diplomatic consequences.
It pursues two objectives; examine the conditions under which a member state’s failure to prevent xenophobic
violence can be construed as a material breach of the African Continental Free Trade Area (AfCFTA),
justifying temporary safeguard tariffs; and second, to investigate how an AU Accountability Caucus,
constituted through a binding Memorandum of Understanding (MoU), can invoke hosting forfeiture
measures without awaiting full AU consensus. Using a qualitative, desk-based policy analysis of documented
violence (2008 - 2026), electoral patterns, AU legal instruments, and trade law precedents, the study
integrates deterrence theory with continental governance practice. The findings show that where four
cumulative conditions exist; electorally correlated violence, systematic law enforcement failure, an ignored
formal warning, and demonstrable economic harm to other African nationals, a material breach of AfCFTA
principles may be established, justifying temporary, proportional safeguard tariffs modelled on WTO
mechanisms. The study further finds that a legally binding Accountability Caucus can bypass AU consensus
paralysis and impose automatic diplomatic consequences, particularly hosting forfeiture, upon predefined
trigger events. The study recommends the adoption of a supplementary AfCFTA legal instrument recognising
xenophobic violence as a sanctionable trade breach and the formation of a binding AU Accountability
Caucus among willing states to ensure automatic diplomatic enforcement. Together, these measures
reposition the AU from reactive condemnation to credible continental deterrence.