via ZANU PF dismisses landmark SA order to probe Zim torture | SW Radio Africa by Alex Bell November 28, 2013
ZANU PF has moved to dismiss as a “non-event” and an “unfortunate development” South Africa’s decision to uphold a landmark ruling, which compels that country’s prosecuting authorities to investigate crimes against humanity committed in Zimbabwe.
The Supreme Court of Appeal in South Africa on Wednesday upheld the order previously handed down by the North Gauteng High Court, which ruled that the country’s prosecuting authorities had a duty to investigate crimes against humanity, even if those crimes were committed outside South Africa’s borders.
The ruling came after the National Prosecuting Authority (NPA) and police refused to investigate a dossier detailing the torture of MDC activists in 2007 at the hands of ZANU PF perpetrators who, according to the document, travel frequently to South Africa.
The dossier implicates 18 ZANU PF officials and military generals in torture and human rights abuses, after a violent raid on the MDC’s offices. More than 100 people were taken into custody, including people who were working nearby. MDC linked individuals were detained in police custody for several days where they were continuously tortured, facing mock executions, waterboarding and the use of electric shocks.
Some of the victims fled to South Africa and a year later the dossier detailing the torture was submitted to the NPA by the Zimbabwe Exiles Forum and the Southern African Litigation Centre.
The prosecuting authorities refused to take the matter further, resulting in the legal battle to try and force an investigation. The North Gauteng High Court then ruled last year that the authorities had a duty to probe allegations of torture as required by the Rome Statute, which South Africa is a signatory to. The Statute is the foundation for the International Criminal Court and as a signatory, South Africa is committed to investigate and prosecute perpetrators of serious international crimes.
But earlier this month the NPA and the police approached the Supreme Court of Appeal in an effort to have the court order overturned. The authorities argued that that the international laws which the North Gauteng High Court based its original ruling on had been ‘misinterpreted’. The SA government had also previously argued that undertaking such investigations would interfere with its political mediation efforts in Zimbabwe.
The ruling by the Supreme Court of Appeal was delivered on Wednesday, with the full bench of five judges upholding the original, landmark order, passed down by the lower court. Described as a “landmark decision for local and international justice,” the ruling made it clear that the perpetrators of the crimes in Zimbabwe can be held accountable in South Africa regardless of where the offending acts took place. The Court noted that such crimes strike “at the whole of humankind and impinge on the international conscience.”
ZANU PF’s newly appointed Prosecutor General has since dismissed the ruling and even ‘warned’ the South African government not to infringe on the sovereignty of the Zimbabwean justice system.
“The assumption is that rulings given in South Africa are applicable in Zimbabwe. The reality is that they are not. We are not bound by any judgments made in South Africa and in any part of the world. We have our own courts, our own constitution and that is what we will use to guide us”, Tomana told the Business Day newspaper.
David Cote from South Africa’s Lawyers for Human Rights (which represented the ZEF and SALC case) told SW Radio Africa that the importance of the court ruling is that it “confirms South Africa’s internal jurisdiction and that is to investigate these crimes under its own legislation.”
“The issue is not so much about prosecutions but about investigation and when does the responsibility and obligation for an investigation start,” Cote explained.
He added: “The Supreme Court of Appeal has said that in South Africa it starts when the evidence has been presented and the reasonable suspicion that South Africa might somehow be involved, such as when the alleged perpetrators travel to South Africa.”