Police ‘have to probe torture in Zimbabwe’

SA’s police must investigate allegations of torture by Zimbabwean authorities in the run-up to Zimbabwe’s 2008 election, the Constitutional Court on Thursday ordered.

The judgment broke new ground in SA’s international law obligations, ruling that even though the alleged torture was committed in Zimbabwe, by Zimbabweans, of Zimbabweans, the South African Police Service had a duty to investigate it.

It also emphatically rejected the argument that a good reason to refuse to investigate was the potential harm to SA-Zimbabwe political relations. Arguments over the capacity of SA’s already overburdened law enforcement to investigate crime in other countries were rejected too.

In 2008, the Southern African Litigation Centre (SALC) handed to the National Prosecuting Authority’s (NPA’s) Priority Crimes Unit a dossier containing 23 sworn written statements — by the alleged victims, backed up by doctors and lawyers — alleging horrific incidents of torture after a 2007 raid on Harvest House, headquarters of Zimbabwe’s main opposition party, the Movement for Democratic Change.

The statements alleged that the raid and torture was ordered by leaders of Zimbabwe’s ruling party, Zanu (PF). They alleged beatings with iron bars and baseball bats, waterboarding, electric shocks to genitals and mock executions.

The dossier named six cabinet ministers and directors-general as perpetrators, and said that many of them had since travelled to SA.

The NPA handed the dossier to the Hawks, which then declined to conduct an investigation, saying it was prevented by law — as under SA’s International Criminal Court Act, in order to prosecute, the accused person had to be present in SA.

But the Constitutional Court differentiated between investigation and prosecution, saying that there was nothing in the constitution or international law preventing an investigation, even when the alleged perpetrators were not in SA. Indeed, SA’s police had a duty to investigate, said Judge Stevan Majiedt on behalf of a unanimous bench.

Justice Majiedt said the duty could be limited if Zimbabwe had shown itself willing to investigate the allegations or on grounds of practicability, something that needed to be decided on a case-by-case basis.

It was "very unlikely" that the Zimbabwean police would have pursued the investigation "with the necessary zeal". On practicability, he rejected the argument that it would be pointless. The investigation was practicable because the initial spade work had been done and the SALC had offered its further assistance.

Justice Majiedt said the fact that an investigation could harm relations between the two states was not a reason not to investigate. The "cornerstone" of international criminal law was to hold torturers and genocidaires to account. Interstate tension was "virtually unavoidable".

"We cannot be seen to be tolerant of impunity for alleged torturers…. We dare not be a safe haven for those who commit crimes against humanity," he said.

Gareth Newham, head of governance, crime and justice at the Institute for Security Studies, said if the police did not investigate, it could face further legal action.