Gayton McKenzie reported to ICC for xenophobia incitement

The Zimbabwe Exemption Permit Holders Association (Zepha) has lodged an official criminal complaint against Sports, Arts and Culture Minister Gayton McKenzie with the International Criminal Court (ICC), accusing him of being personally responsible for several crimes against humanity committed against African foreign nationals in South Africa.

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McKenzie, who is also the leader of the Patriotic Alliance, is accused of making statements that threaten the safety of African foreign nationals, specifically Zimbabwean and Mozambican nationals, seeking healthcare services at South African hospitals.

eNCA reported in 2022 that McKenzie said he would not hesitate to switch off a foreign national’s oxygen supply in order to save a South African.

These comments came days after then Limpopo Health MEC Phophi Ramathuba was filmed lambasting foreign nationals for overburdening South Africa’s health system.

Claims of state inaction

“Mr McKenzie knew that these comments would spark widespread xenophobic attacks against foreign African nationals, specifically at South African hospitals and clinics, but he made them anyway because his privileges give him the power to commit crimes against humanity in South Africa, at scale, with impunity,” the complaint states.

“The South African president, prosecution services, parliament, and the judiciary has failed or refused to take any action against McKenzie.”

“If anything, by all accounts, McKenzie is one of the most popular South African leaders in all branches of the South African government, precisely because of his crimes against humanity targeting foreign African nationals.”

Moneyweb reached out to McKenzie’s office for comment but had not received a response at the time of publication.

The complaint comes at a time when President Cyril Ramaphosa is under intense international pressure to rein in anti-immigrant groups, many operating as vigilantes, and have called for illegal foreigners to leave the country by the end of June 2026.

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He acknowledged the growing concerns over illegal immigration and promised to come down on those violating SA’s immigration laws, but warned against the spread of xenophobia.

“I must make it clear that only the authorised government officials may act against violations of the law, including violation of our immigration laws. No other person is allowed, for example, to confront someone in the street to demand proof of nationality.

“We know that South Africans are not xenophobic as there is no space for xenophobia, racism, sexism, Afrophobia or any other forms of intolerance in South Africa.”

‘Grave’ concerns

The heat appears to be building on McKenzie, with the Economic Freedom Fighters (EFF) calling on Ramaphosa to take action against his arts and sports minister for promoting anti-foreigner sentiment.

Ghana and Nigeria have summoned South Africa’s high commissioners in their respective countries to express concerns over the treatment of their citizens in SA, while several other countries have issued travel advisories warning their citizens on the dangers of traveling to SA.

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The African Commission on Human and Peoples’ Rights (part of the AU) has expressed grave concern over the situation, and has called on South Africa to investigate incidents of violence, hold perpetrators accountable, and take measures against vigilante groups.

Making threats 

In March, ActionSA said it would lay charges against McKenzie for threatening the party’s parliamentary member Dereleen James for questioning his travel expenses and Patriotic Alliance colleague Kenny Kunene’s alleged links to crime figure Katiso Molefe.

Kunene was later cleared of wrongdoing, while McKenzie has denied making threats against James.

The Zepha complaint before the ICC says that McKenzie’s motivations are based on more than just hatred – it alleges that he has profited politically as well as economically.

“Mr McKenzie’s crimes against humanity are aggravated by the fact that he is a convicted criminal, and is a self-confessed former member of a criminal gang,” according to the complaint.

“His incitement of violence, based on the subsequent public reaction, at the very least, was carried out by former members of his criminal gang, in addition to several members of the South African public who are themselves criminals for participating in widespread, state sponsored, xenophobic attacks, which constitute crimes against humanity.”

The complaint further alleges that these actions violate the Rome Statute on crimes against humanity, which prohibits the persecution of any identifiable group and the deportation or forcible transfer of populations.

‘Enough is enough’

The minister is also accused of breaching provisions of the Rome Statute relating to torture, defined as the intentional infliction of severe physical or mental pain and suffering.

“For too long, this marginalised group has been persecuted, and even worse, without any action taken against the perpetrators because they are South African, and unfortunately the international community believes that South African nationals are superior to other foreign nationals,” the complaint states.

“A similar belief led to the genocide in Rwanda, and the current wide spread xenophobic violence in South Africa, which targets African foreign nationals.

“Enough is enough. The time has come for the international community, specifically the International Criminal Court to carry out its mandate, and hold South African nationals who commit crimes against humanity to account.”

Zepha lead counsel, Advocate Simba Chitando, says many more South Africans will be referred to the ICC in the coming weeks.

He adds that while representing Zepha, he has been targeted by all the branches of the South African government for representing African foreign nationals allegedly denied access to medical services at SA hospitals.

SA’s justice system complicit … 

“The South African justice system has self-evidently failed to take any action to bring individuals who are responsible for inciting widespread, state sponsored, crimes against humanity that specifically target foreign African nationals,” says Chitando.

“In my view, and that of many, the South African criminal justice system is complicit in the perpetration of these crimes against humanity, which takes place in broad daylight and are recorded, then distributed by the criminals themselves with impunity.

“Regrettably, in many cases the police, Home Affairs staff, and high ranking members in branches of the South African government are the worst offenders.”

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