Interview: South Africa – Zimbabwean prosecutions?
Published on : 23 March 2012 – 7:08pm | By Geraldine Coughlan
A landmark case will begin in South Africa on Monday, which could compel
South African authorities to prosecute high level Zimbabwean officials
accused of crimes against humanity. It will be the first time a South
African court will be asked to provide guidance on the nature of obligations
on the authorities by signing up to the International Criminal Court (ICC).
By Geraldine Coughlan, The Hague
The North Gauteng High Court has been asked by the Southern Africa
Litigation Centre (SALC) and the Zimbabwean Exiles Forum (ZEF) to set aside
the decision of the National Prosecuting Authority and the South African
Police Services not to investigate Zimbabwean officials linked to acts of
state-sanctioned torture following a police raid on the headquarters of the
Movement for Democratic Change (MDC) in 2007.
“The High Court has an opportunity to set an important precedent, which will
ensure that South Africa lives up to its legal responsibilities to prosecute
the perpetrators of international crimes wherever they are committed,” said
Nicole Fritz, Executive Director of SALC. She spoke to RNW.
Why now?
This case is five years in the making. The challenge relates to events in
March 2007 when Zimbabwean police raided the MDC’s headquarters and tortured
scores of activists. Affidavits relating to those events were collected in
2007 and 2008. We made the case that torture was committed in a widespread
and systematic way in Zimbabwe against political opponents of the ruling
party ZANU PF – therefore, a crime against humanity.
Also, that South Africa’s Implementation of the Rome Statute Act for the ICC
gave the authorities powers to investigate and prosecute crimes of persons
who were present in South Africa after committing those crimes (even if they
weren’t South African nationals and the crimes were committed outside the
country).
We maintained that the Zimbabwean officials named in our dossier as
perpetrators travelled into South Africa on a regular basis and so could be
prosecuted. We submitted our case when we did in the rather futile hope of
it having some deterrent effect on the post-election violence that we
anticipated.
So, how hopeful are you now?
We believe we have a very strong case and we’re anticipating a positive
outcome. After more than a year considering our dossier, the prosecuting
authorities informed us that the police did not intend investigating the
matter. We then began the process of launching a review application before
the High Court, asking that it review and set aside the decision that had
been taken. Litigation is notoriously slow and cumbersome and after many
rounds of exchanging legal papers we now finally have our court dates.
As it is we think the dates are rather fortuitous – with developments in
Zimbabwe suggesting that some of the political authorities are pushing for
elections this year in violation of the Global Political Agreement. Also,
amid fears that violence again will be used to intimidate and harass and
there being no obvious domestic attempts to bring the culture of impunity to
an end in Zimbabwe.
The case, rather than just submission of our dossier, may have some
appreciable impact (the message at least, to those who committed violence in
Zimbabwe – that their impunity ends at Zimbabwe’s borders).
What type of precedent does this set?
If successful, the case itself won’t usher in investigations and
prosecutions but will open the door for these to happen. If the court
upholds our arguments, it may order that the prosecuting authorities have
acted unlawfully in their treatment of our dossier, that they didn’t give it
the consideration required and that their initial decision not to
investigate/prosecute is set aside.
It would mean that the court would underline the importance of South
Africa’s international obligations to the ICC and the importance South
Africa must grant to charges of crimes against humanity, war crimes and
genocide.
It will be the first time a South African court is asked to make a ruling
regarding South Africa’s ICC Act. Globally it would affirm the ongoing
importance of universal jurisdiction laws. It will also point to the fact
that international criminal justice is not only secured in the international
realm but perhaps most importantly within domestic jurisdictions.