Why SA should prosecute Zimbabwe’s torturers-in-chief
Clare Ballard
25 March 2012
Clare Ballard explains why SALC is taking the NPA to court on the matter
South Africa, the Rome Statute, Zimbabwe, and Torture
“Law is nothing unless close behind it stands a warm living public opinion.”
~Wendell Phillips
So accustomed have we become to reports of atrocities in war-ravaged, post
colonial Africa that I believe we’d be forgiven for associating the term
‘impunity’ with the perpetrators of these crimes, even though the nature of
the crimes to which the unlucky oppressed are subjected frequently fall into
the category of “crimes against humanity”: torture, genocide, slavery.
So we sat up and took notice when, on the 14 March 2012, the International
Criminal Court (ICC) handed down its first verdict. It convicted Thomas
Lubanga of conscripting and enlisting children under the age of 15 and using
them to participate in hostilities. This was a first.
True, the Special Court of Sierra Leone and the International Criminal
Tribunal for Rwanda have handed down a number of convictions (and
acquittals), but, like their predecessors, the International Criminal Court
for the former Yugoslavia, and even the Nuremburg and Tokyo trials, these
were established for the purpose of trying crimes committed within a certain
time frame and in relation to a specific conflict.
The ICC, the world’s first permanent international criminal court, was
established on 1 July 2002, the date on which its founding treaty, the Rome
Statute, came into force. The adoption of the Rome Statue was the final
point of decades of negotiations arising from the internationally perceived
need to be able to prosecute individuals responsible for crimes against
humanity, genocide and war crimes, but who were able to shield themselves by
invoking the doctrine of sovereign immunity.
Like other special courts and tribunals, the establishment of the ICC
occurred without too much controversy, for, as Lord Browne-Wilkinson reminds
us in the famous Pinochet case, “international law provides that offences in
violation of certain pre-emptory norms may be punished by any state because
the offenders are common enemies of all mankind and all nations have an
equal interest in their apprehension and prosecution.”
The ICC can exercise its jurisdiction only over state parties, and even
then, only if the state is unable or unwilling to prosecute locally. To
date, one hundred and twenty countries are state parties to the Rome
Statute.
Thirty-two countries have signed, but not ratified it. Zimbabwe is one of
them, and thus not subject to the jurisdiction of the ICC. Zimbabwe is also
one of those African countries frequently associated with politically
motivated violent incidents: police brutality, raids, illegal detention, and
torture.
The Southern African Litigation Centre (SALC) responded to a particular
incident in 2007. In March of that year, Zimbabwean police raided MDC
headquarters and arrested over 100 MDC supporters, many of whom were
subsequently detained and tortured. SALC compiled a detailed dossier of
these events, including affidavits from the victims themselves and
supporting papers from lawyers and medical practitioners confirming the
torture, and presented it to the NPA.
As odd as the idea sounds of asserting domestic authority over non-nations
for alleged crimes that occurred beyond our borders, there are a number of
very good reasons why the NPA could be expected to, and should have,
initiated the investigation and prosecution of Zimbabwean officials
responsible for the torture.
Firstly, South Africa is a state party to the Rome statute, and furthermore
a particular clause in the implementing legislation (the ICC Act) states
that for the purpose of securing the jurisdiction of a South African court,
a crime committed outside the country is deemed to have been committed
within our borders if the alleged perpetrator of the crime is in the
Republic after the commission of the crime.
Accordingly, Zimbabwe’s being a state party to the Rome Statute is
irrelevant to the purpose of initiating a prosecution in South Africa.
Secondly, South Africa is obliged to prosecute domestically. The ICC Act
states: “it is the duty of the state to exercise its criminal jurisdiction
over those responsible for international crimes.”
In addition, one of the ICC Act’s stated objectives, is “to enable, as far
as possible … the national prosecuting authority of the Republic to
prosecute and the High Courts of the Republic to adjudicate in cases brought
against any person accused of having committed a crime in the Republic and
beyond the borders of the Republic in certain circumstances.”
Thirdly, the ICC Act designates as “priority crimes” those in violation of
the Rome Statute. This, as the applicants correctly point out, means that
the South African government recognized that such crimes “deserve special
attention.” Fourthly, given the collapse of the rule of law in Zimbabwe and
the fact that the officials allegedly responsible for the torture of MDC
supporters are known to visit South Africa from time to time, South Africa
is well situated to investigate, arrest and prosecute them under the ICC
Act.
Sadly, it took months for the NPA to respond to SALC, and then only to say
that the matter had been referred to SAPS for investigation. After another
six months, SALC were informed that the SAPS had decided not to investigate
the matter. SALC instituted review proceedings in the High Court, arguing
that the refusal to investigate and prosecute the torture allegations
amounted to, amongst other things, a failure on the part of the respondents
(the NPA, SAPS the Director-General of the department of Justice) to apply
their minds to the matter.
The reasons proffered for the decision not to investigate, once they had
eventually been delivered, included (incorrectly), that the SAPS and NPA
were not permitted under the ICC Act to investigate such crimes, as well as
the bald assertion that if an investigation were to be initiated, it would
impact negatively on South Africa’s diplomatic relations with Zimbabwe, and
we would be seen to be “criticizing the Zimbabwean government.”
There is no doubt that the prosecution of Zimbabwean officials by the
respondents would have some sort of impact on South Africa’s relationship
with Zimbabwe. It would be naïve not to realize that this kind of
prosecution is extremely complicated, even dangerous. Perhaps it would
threaten the safety of opposition party members still in Zimbabwe. But the
bottom line is that our legislation requires that where there is evidence of
a crime, a prosecution must ordinarily follow unless it would be “in the
public interest” not to do so.
The respondents have not delivered any even remotely compelling reasons as
to why they should not proceed. Which is why SALC have a strong case.
As multiple reactions to the “Kony 2012” campaign tell us, pinning down
perpetrators of international crimes is a complicated business. If only it
were as easy as buying a wristband. But a really good start, I think, would
be abiding by legislation our own government saw fit to create.
The SALC matter will be heard from Monday 26 March 2012 in the North Gauteng
High Court.
Clare Ballard is a Researcher for the Community Law Centre, Civil Society
Prison Reform Initiative, University of the Western Cape