Nigeria evacuated thousands of its citizens from South Africa this year. It then asked Pretoria to compensate them for what they lost. Pretoria said no. The word the government used was insensitive.

Femi Falana stood up on Sunday and said something that should have been said months ago. Nigeria and Ghana should stop taking their xenophobia complaints to the African Union and go straight to the African Court on Human and Peoples' Rights instead. The AU route gets you a statement. The court route gets you a judgment. Only one of those can order South Africa to pay.

Here's what led to that statement.

Nigeria has evacuated close to 1,500 of its nationals from South Africa this year, and Ghana has repatriated close to a thousand of its own. That is not a diplomatic estimate. Those are the actual numbers both governments have confirmed. Behind every one of those numbers is a shop that got shut. A rented flat that got abandoned in a hurry. A business built over years that somebody had to walk away from with whatever fit in a suitcase.

The Nigerian government did the thing you would expect a government to do after that. It asked South Africa to pay for what was lost. Its Acting High Commissioner in Pretoria, Alexander Ajayi, said officials had already started documenting the businesses and properties Nigerians had abandoned. The plan was to sit down with South Africa and talk numbers.

South Africa's answer was no.

Falana called the rejection sheer insensitivity, and it's hard to argue with him. South Africa's justification was that many of the people who fled were undocumented, so the country owes them nothing. That claim is disputed by the very people who were forced out. But even if it were true for some of them, it can't be true for all of them. A trader with a registered stall and a decade of tax receipts doesn't stop being owed something. That's true even if the government filing the claim on his behalf also represents people whose papers weren't in order.

This is where the compensation request actually breaks down. It was never really a legal claim. It was a diplomatic request between two governments who are supposed to have a relationship built on more than trade numbers. Nigeria stood by South Africa during apartheid. That history gets mentioned every time this comes up, and every time it gets mentioned, it changes nothing about what happens next.

What happens next, according to Falana, is court. Article 34(6) of the African Court's protocol is the part that actually matters here. It's the clause that lets individual citizens, not just states, bring cases directly to the court. Nigeria has never signed on to let its own citizens use it. So even if Abuja wanted to let the victims fight this themselves, the law doesn't currently let them.

That's the second failure sitting inside this story. The first is South Africa refusing to pay. The second is Nigeria never having built the legal door its own citizens would need to walk through if the government's request goes nowhere.

Somewhere in Johannesburg or Pretoria right now, a Nigerian who spent a decade building a business is reading the same headline everyone else is reading. Their government asked. It got turned down. The lawyer on television is now asking for something more serious. And the person who actually lost the shop has no direct way to ask for anything at all. They are relying entirely on a diplomatic process that just failed and a legal process their own country hasn't opened up to them.

Compare that to how fast the same government can move when it wants to. A new crypto regulation council came together in a matter of days last week, three agencies, one chain of command, immediate effect. Nobody had to wait five months for that. Nobody had to be told the machinery wasn't built yet.

The difference was never capacity. The government clearly has the capacity to build fast institutional responses when it decides something is urgent enough. What's missing is the decision that a Nigerian trader who lost a shop in Johannesburg is exactly that urgent.

This isn't the first time Nigeria and South Africa have been here. Waves of xenophobic violence hit in 2015, in 2019, and again this year, and each time the response has looked roughly the same. Nigerians get attacked or driven out. Nigeria condemns it. South Africa expresses regret without admitting fault. Eventually the story fades from the front page until the next wave arrives. Two Nigerian men died in this year's violence alone, including Amaramiro Emmanuel, who Nigeria's consul general in South Africa said was beaten by South African soldiers in April.

What's different this time is how openly South Africa has refused the compensation ask. In past cycles, Pretoria at least performed sympathy while doing little. This time its Foreign Ministry spokesperson said the matter would be handled at the highest diplomatic level, and then the answer that came back through that level was still no. That's not South Africa being quieter about its position. It's South Africa being clearer about it, and the clarity is what's forcing Nigeria's hand toward a legal option it has avoided for years.

There is a cost to that avoidance that goes beyond this one dispute. Every cycle Nigeria spends asking nicely and getting turned down costs the next trader too. Someone setting up a stall in Johannesburg today does so without any legal backstop if the violence returns, and it always eventually returns. The African Court route Falana is pushing wouldn't just resolve this claim. It would give the next wave of victims something to stand on that doesn't depend on which government happens to be sympathetic that year.