Zim torture ruling hailed as landmark (Pretoria News)

Judge Hans Fabricius found that the National Director of Public Prosecutions (NPA), the head of the Priority Crimes Litigation Unit and the National Commissioner of Police failed in their obligations to investigate these crimes under international law and in terms of the International Criminal Court Act (ICC Act).

The Southern African Litigation Centre (SALC) and Zimbabwe Exiles Forum (ZEF) earlier asked the court to set aside a decision by the SA authorities not to investigate and prosecute Zimbabwean officials implicated in human rights abuses committed in 2007, when the Zimbabwean police raided the offices of the Movement for Democratic Change. More than 100 people were detained and tortured at the time.

The SALC at the time handed a dossier to the NPA relating to the events and asked the SA authorities to investigate the matter. It contained the names of the Zimbabwean officials responsible for the raid and torture as well as details of the incident.

SALC told the court that SA was obliged, in terms of the Rome Statute of the ICC Act, to investigate and prosecute these crimes. It held that in light of the collapse of the rule of law in Zimbabwe and concern for the safety of the victims, SA was legally required to investigate crimes against humanity.

SALC said it was irrelevant whether these crimes were committed in SA, or by SA nationals, and said those responsible should be held accountable under SA law designed for this purpose. The prosecuting authority did ask the police to investigate, but this request was refused and the NPA left it at that.

Some of the reasons advanced by the then SAPS commissioner for not investigating were that the SAPS did not have the authority, nor the duty to investigate international crimes committed in Zimbabwe and that such an investigation would negatively impact on SA’s relations with that country. The applicants earlier told the court that without effective prosecution of those guilty of torture as a crime against humanity, there was a risk of SA becoming a safe haven for torturers who may travel here freely.

Judge Fabricius said the NPA and police decision not to take the matter further was affected by irrelevant political considerations. “Their attitude trivialised the evidence. Diplomatic considerations were not the business of the SAPS, to put it bluntly.” The judge added that it was the duty of the SA authorities to investigate the docket. “…It was not their obligation to take political or policy considerations into account.

“These change in any event from time to time, while a proper jurisprudence remains a concrete basis for a stable society living under the twinkling, but stern eyes of the rule of law.”

The judge added that while it was not desirable for a court to comment on the government’s policy decisions, there was little doubt that the rule of law didn’t exist in Zimbabwe. While Judge Fabricius found that the SA authorities were obliged to investigate this matter, he emphasised that his order was not intended to place any obligations on it, over and above those required by the relevant legislation.

Both Nicole Fritz, head of SALC, and Jacob van Garderen, of Lawyers for Human Rights, agreed that the judgment went wider than only crimes committed in Zimbabwe. “This sets a much broader precedent by ruling that South African authorities have a duty to investigate international crimes wherever they take place. We are elated by the outcome,” Fritz said.

Van Garderen commented that the core of the judgment made it clear that the SA government couldn’t turn a blind eye to systematic torture in a neighbouring country, where the victims couldn’t be protected. “The court emphasised that there is a clear obligation on South Africa to, in terms of the Rome Statute, investigate and prosecute these human rights abuses.” He said this judgment made it possible for not only the prosecution of Zimbabwean torture perpetrators, but also for the SA government to investigate any other human rights abuses outside SA, where it was possible that the offenders may reach SA borders.