via Top SA court orders Zim torture probe 30 October 2014

SOUTH Africa’s highest court on Thursday ruled that the country’s police have a duty to investigate Zimbabwean officials accused of torturing opposition supporters seven years ago.

The landmark judgement by the Constitutional Court is likely to strain ties with the neighbouring country, whose President Robert Mugabe responded angrily to a similar order by a lower court, describing it as a “direct assault” on Zimbabwe’s sovereignty.

South African police had refused to investigate allegations of state-sponsored torture ahead of 2008 elections, citing political concerns, and appealed against the earlier judgement.

But they have now exhausted all legal appeals and must act on the Constitutional Court order that “the South African Police Service must investigate the complaint”.

The Southern Africa Litigation Centre (SALC) and the Zimbabwe Exiles Forum (ZEF) filed the original case seeking to force police to open an investigation, citing South Africa’s obligations to the International Criminal Court.

The two groups want South Africa to arrest and prosecute Zimbabwean officials accused of torture if they enter the country for holidays, shopping or seeking medical treatment.

“South Africa’s highest court has set an important precedent: South Africa will not be a safe haven for perpetrators of the world’s worst crimes,” said Nicole Fritz, SALC’s executive director.

The 10 judges of the Constitutional Court noted that they had to determine whether under international and domestic law the police service has “a duty to investigate crimes against humanity committed beyond our borders”.

Lawyers say the victims were tortured in March 2007, a year before national elections in Zimbabwe, by police acting on instructions from Mugabe’s ruling Zanu PF party.

During a raid on the headquarters of the opposition Movement for Democratic Change, more than 100 people were detained and allegedly tortured as “part of a widespread and systematic attack on MDC officials and supporters in the run-up to the national elections”, the court noted.

Lawyers had presented sworn statements by 17 victims who said they were beaten with iron bars and baseball bats, water-boarded and had electric shocks applied to their genitals. They were also subjected to mock executions during which they were hooded and a gun was pressed against their heads.

If these allegations were proved, “the conduct of the Zimbabwean police officers could amount to crimes against humanity and thus an international crime,” the court said.

It noted that the SALC case did not only target the police officers, but also their superiors in the police and government on the basis of the doctrine of “command responsibility”.

The names of the victims and their alleged torturers have been kept confidential.
‘Justice served’

“After eight years of legal wrangling, we are thrilled that victims of torture in Zimbabwe now have some prospect of seeing justice served,” said Gabriel Shumba, ZEF chairperson.

However, the South African government has for years refused international and local appeals to use its political and economic clout against Mugabe, a former guerilla leader who has ruled Zimbabwe since independence in 1980.

Despite Mugabe’s increasingly autocratic rule and intolerance for democratic opposition, his past support for South Africa’s anti-apartheid struggle has seen the ruling African National Congress treat him largely with kid gloves.

After the first high court judgement calling for a probe of the torture allegations, Mugabe charged that the white judge Hans Fabricius, hankered after the apartheid regime and called him a Boer, a pejorative term for white South Africans.

“That judgment by that Boer … constitutes a direct assault on our sovereignty by shameless forces afflicted by racist nostalgia,” Mugabe told a group of leaders from former regional liberation movements.

He asked the ANC to prevent investigations and “apply every means at their disposal to ensure that such machinations are not, in the end, allowed to negatively affect our cordial relations.”
In the Constitutional Court, white judges are in the minority.