7 November 2014
South Africa’s highest court has ordered the police to investigate allegations of torture by Zimbabwe police carried out in Zimbabwe on Zimbabwean nationals.
How can it be that South Africa is obliged to put its nose into its neighbour’s business? Does that mean that Zimbabwe is somehow ‘under’ South Africa? What about a country’s sovereignty?
The Constitutional Court took these concerns into account when it made its decision.
The case has a long history. In 2007, just before national elections in Zimbabwe, police (allegedly acting on orders from the ruling Zanu-PF) raided the headquarters of the main opposition party, the Movement for Democratic Change. More than 100 people were taken into custody and detained for several days.
After the police released them, a number of sworn statements were taken from people alleging they were tortured.Torture allegations included beatings with iron rods and baseball bats, electric shocks, waterboarding and mock executions. The affidavits were backed up by other sworn statements from doctors, lawyers and family members.
The Southern African Human Rights Litigation Centre, working with the Zimbabwe Exiles’ Forum, compiled a dossier and tried to get the South African Police Service (SAPS) to investigate. They had no luck.
Eventually, they went to the high court and asked that the court order SAPS to investigate. The court agreed to do so. SAPS then took the decision to the Supreme Court of Appeal where the judges again decided that SAPS is obliged to investigate.
Once again the police appealed, this time to the Constitutional Court. On 30 October, the judges unanimously ruled that the other courts were correct, and that SAPS must get on with the job.
The three courts all came to the same conclusion by examining South Africa’s duties under its constitution and international law.
The Rome Statute, an international agreement that set up the International Criminal Court obliges all signatories to ensure that perpetrators of crimes against humanity and similar crimes must no longer be allowed to get away with it. By signing the agreement, crimes against humanity became crimes under South African law and South Africa is committed to investigating these crimes wherever they are carried out.
South Africa is not alone in this; it is part of a global drive to stamp out evils such as torture.
The court held that SAPS has a duty to investigate crimes against humanity even when the alleged perpetrators are not present in South Africa; in fact, the President has already appointed a senior prosecutor as a ‘special director’ to manage any investigations of crimes against humanity.
There are however two major restrictions on such investigations. SAPS will only investigate if the authorities in the country where the alleged crimes against humanity took place are ‘unwilling or unable’ to prosecute. In other words, if Zimbabwe was willing to investigate and then prosecute these alleged crimes of torture ‘there would be no place for South Africa to do so’.
Another limitation raised by the judges is that a country only has a duty to investigate alleged crimes against humanity committed in another country when it is ‘practicable’ to do so. Given that Zimbabwe and South Africa are neighbours, said the court, and the possibility that alleged perpetrators might some time come to South Africa, SAPS must investigate.
What about the possibility, raised by SAPS, that such an investigation could harm relations between the countries? The court answered this indirectly: the whole point of this international law is to hold torturers, people committing genocide and other ‘enemies of all humankind’ accountable for their crimes, wherever they may have committed their crimes and wherever the perpetrators may live.
‘We cannot be seen to be tolerant of impunity for alleged torturers,’ said the court. ‘We dare not be a safe haven for those who commit crimes against humanity.’
Commenting on the judgment, Nicole Fritz, whose organisation originally took up the case, said parliament and the courts in South Africa have proved a model for the rest of the world when it comes to showing determination not to allow torturers to escape investigation and punishment. But, she says, the judgment is now a challenge to the third arm of government, the executive: will it live up to the example set by parliament and the courts?