Commercial Farmers' Union of Zimbabwe

Commercial Farmers' Union of Zimbabwe

***The views expressed in the articles published on this website DO NOT necessarily express the views of the Commercial Farmers' Union.***

Why SA should prosecute Zimbabwe’s torturers-in-chief

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 

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 

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 

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


Killer poacher jailed 18 years

Killer poacher jailed 18 years   3/7/2019 The Chronicle Mashudu Netsianda, Senior Court Reporter A POACHER who ganged up with a colleague and fatally attacked a

Read More »

New Posts: