SA urged to separate politics and law in Zim torture case
By Alex Bell
27 March 2012
South Africa’s government will this week be urged to separate its
international legal responsibilities and politics, in a landmark legal case
based on incidences of torture in Zimbabwe.
The Southern African Litigation Centre (SALC) and the Zimbabwe Exiles Forum
are urging the South Africans to investigate and prosecute Zimbabwean
officials accused of crimes against humanity. These officials have been
identified as regular visitors to South Africa and the country is being
urged to honour its commitments under the Rome Statute to launch an
investigation.
The case is based on a dossier submitted to the National Prosecuting
Authority (NPA) and the South African police in 2008, which detailed torture
suffered by MDC members in Zimbabwe in 2007. The NPA and the police decided
not to take the case further, and this week’s court challenge will attempt
to overturn this decision.
Arguments on the merit of the case got underway on Tuesday after a
postponement on Monday, which in turn followed the ‘startling’ affidavit of
one of the respondents in the case. Anton Ackermann from the NPA’s Priority
Crimes Litigation Centre recently switched sides and revealed that in 2008
he had recommended an investigation. His affidavit, submitted last week,
also indicated that he was threatened by colleagues at the NPA and the State
Advocate to go along with their decision not to investigate.
The legal team representing SALC and the Exiles Forum argued Tuesday that
South Africa had an international obligation to investigate and prosecute
the Zim officials in this case. Advocate Wim Trengrove told the court that
the decision not to investigate was unlawful and a failure under
international law.
The State meanwhile led its opposing arguments by explaining that it made
little sense, in terms of inter-country relations, to investigate state
sponsored violence in Zimbabwe. The State Advocate, Christopher Macadam,
also told the court that there was no point in referring the torture dossier
to the then chief investigations team, the Scorpions, because they were
about to disband.
Gabriel Shumba, the Director of the Zimbabwe Exiles Forum, told SW Radio
Africa on Tuesday that the case sets an important precedent in terms of the
rule of law, because it will urge a separation between law and politics.
“This case exposes that South Africa chose to sacrifice its international
and domestic obligations over political expediency,” Shumba said, arguing
that the rule of law and politics must be separated.
Shumba meanwhile also explained that the hopes of thousands of exiled
Zimbabweans rest on the success of this case, “because it seeks to end the
impunity that forced so many out of their country.”
“Other legal forms like the SADC Tribunal have failed to provide justice for
Zimbabweans. But this case will clearly show that the circle of impunity is
closing in on the perpetrators,” Shumba said.
South Africa is the regionally appointed mediator in the Zimbabwe crisis,
although Jacob Zuma has indicated that he won’t be coming to the country any
time soon. Some observers have argued that this shows that he is not serious
about ushering in real change in Zimbabwe.
Other observers meanwhile have said this attitude could affect the court
case in South Africa. But the Exile’s Forum’s Shumba said on Tuesday that he
does not think this will happen.
“The judiciary in South Africa, unlike in Zimbabwe, is independent of the
state. So I think the legal responsibilities of the country will no longer
be affected by politics,” Shumba said.