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South Africa Looks To Investigate Torture In Zimbabwe

South Africa Looks To Investigate Torture In Zimbabwe

If one country’s government tortures but refuses to investigate itself, can other countries investigate? This is the question that the South African Constitutional Court sought to answer with a ruling a few weeks ago. The Court, in a unanimous decision, determined that South Africa’s police force was duty bound to investigate the gravest of international crimes, including torture and crimes against humanity, related to post-election violence in Zimbabwe in 2008.

While this is sure to complicate bilateral relations between the two sub-Saharan states, it also sends a powerful message that South Africa seeks to be an exporter of human rights and justice.

The case, National Commissioner of the South African Police Service v. Southern African Human Rights Litigation Centre and Another, stems from a 2008 report by the Southern African Human Rights Litigation Centre (SALC) to the country’s National Prosecuting Authority that detailed the horrific crimes that had been committed in Zimbabwe in the wake of (then) recent elections.

According to the report, Zimbabwean authorities tortured members of Morgan Tsvangirai’s Movement for Democratic Change in the time surrounding the election. Further, the SALC believed that by virtue of its membership in the International Criminal Court, South Africa was required, under international law, to investigate these, the gravest of international crimes.

The Prosecuting Authority disagreed and informed the SALC that it would not be opening an investigation. After the prosecution opted to ignore the report, the SALC took to the Courts, where they have been largely successful.

At first instance, the High Court of North Gauteng agreed with the SALC that the country had a duty to prosecute. On appeal, this was upheld by both the Supreme Court of Appeal and now the Constitutional Court. Thus, South African police must begin an investigation into the alleged incidents of torture.

The Constitutional Court went out of its way to detail the principle of complementarity in international prosecutions, stating that “investigating international crimes committed abroad is permissible only if the country with jurisdiction is unwilling or unable to prosecute and only if the investigation is confined to the territory of the investigating state.”

Put perhaps more simply, because Zimbabwe will not investigate the crimes of its government, South Africa is treaty bound to do so. If, instead, the country opted to investigate such allegations in a real and earnest way, South African police would not be forced to investigate.

Following the decision, there are two major areas where bilateral relations are sure to suffer.

The first is made obvious by the international complementarity or “unwilling or unable” standard. At its most basic level, the South African Constitutional Court, in its order, is making an official ruling that Zimbabwe ignores crimes committed by its authorities and has a lack of fealty to the rule of law.

While this is common knowledge in most circles, an official decree of such by the country’s most important neighbor and a frequent patron will not go unnoticed by the Zimbabwean government.

The second is more subtle, as it has the potential to act as a de facto travel ban on Zimbabwean authorities.

Presence For Prosecution

While the Court determined that an investigation could begin even while all of those being investigated resided in Zimbabwe, presence is necessary for prosecution. This means that Zimbabwean authorities implicated in such grave international crimes could be arrested and prosecuted, should the investigation lead to an indictment, upon their arrival in South Africa.

This is no hypothetical venture, as Zimbabwean authorities regularly enter South Africa for a number of unofficial reasons including holiday, shopping and medical treatment.

While extraterritorial prosecution or “universal jurisdiction” for the gravest of international crimes is still outside the norm of domestic criminal systems, it is gaining acceptance.

According to Maximo Langer, a Professor of Law at the University of California – Los Angeles Law School, since the International Criminal Court’s Rome Statute came into force in 1998, “several states pass[ed] new universal jurisdiction statutes as part of their domestic implementation of the ICC statute.”

Further, the increase in acceptance of universal jurisdiction has “almost exclusively concentrated on situations

not under investigation by the ICC.” As Zimbabwe is not one of the eight situations currently under investigation at the ICC, South Africa’s investigational vigor fits into a wider theme of international law and international affairs.

Extraterritorial investigation for violations of the world’s gravest crimes such as torture and crimes against humanity has become an important tool in punishing those who would otherwise fall through the cracks.

Zimbabwe has proven over Mugabe’s tenure that it is not interested in investigating or punishing authorities that breach such international norms, cultivating a culture of impunity for even such horrific allegations.

The South African Constitutional Court has now opened the door to investigations of such crimes. As its historical status as Zimbabwe’s most important neighbor, the official declaration of Zimbabwe’s unwillingness to investigate its own crimes and potential for a de facto travel ban may carry more weight than the countless other countries and international organizations that have accused the Mugabe regime of atrocities.

In short, for the first time, there is a potential this will mean something to Zimbabwe, and even if not, a clearer record will be created of the excesses of Zimbabwean authorities.

Andrew Friedman is a human rights attorney and consultant who works and writes on legal reform and constitutional law with an emphasis on Africa. He can be reached via email atafriedm2@gmail.com or via twitter @AndrewBFriedman.