SALC asks Court to Decide on South Africa’s Duty to Investigate and Prosecute Crimes Against Humanity Committed in Zimbabwe

February 13, 2012

On 26 March 2012 SALC and the Zimbabwean Exiles Forum (ZEF) will go to court to argue that South Africa, through the National Prosecuting Authority (NPA) and the South African Police Services (SAPS), is required in terms of both international and South African law, to investigate and prosecute perpetrators of international crimes.

Last week SALC and ZEF filed their legal submissions in SALC and Another v The National Director for Public Prosecutions and Others. They are asking the High Court to review and set aside the NPA’s and SAPS’ decision not to investigate and prosecute high level Zimbabwean officials accused of crimes against humanity.

 Brought in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and the Implementation of the Rome Statute Act of the International Criminal Court Act 27 of 2002 (ICC Act), this case concerns South Africa’s failure to discharge its obligations to investigate and prosecute crimes under international law in accordance with South Africa’s international law obligations and domestic law contemplated in the Rome Statute of the International Criminal Court (Rome Statute) and the ICC Act respectively. This is the first time that a South African court will have the opportunity engage with the ICC Act, its purpose and objectives and to provide guidance on the scope and nature of the obligations placed on South African authorities when acting in terms of and pursuant to the ICC Act.

The Rome Statute, the product of the international community’s commitment to prosecute perpetrators of serious international crimes envisages a regime characterized by international cooperation and complementarity in which domestic jurisdictions take the lead in the investigation and prosecution of those accused of serious crimes under international law (which includes torture). South Africa, through its ratification of the Rome Statute and subsequent domestication thereof, has therefore availed its court rooms and prosecutorial and investigative services to the fight against impunity.

 This case has its genesis in a detailed docket submitted by SALC to the NPA’s Priority Crimes Litigation Unit (PCLU) in March 2008 documenting acts of state sanctioned torture in the aftermath of a raid by Zimbabwean police on Harvest House, the headquarters of the then Zimbabwean opposition party, the Movement for Democratic Change (MDC), in March 2007.

 Despite the existence of specialised units within South Africa’s prosecutorial (PCLU) and police services (the Directorate for Priority Crimes Investigation) to investigate crimes of this nature no effort was made to initiate an investigation despite the availability of credible evidence. A negative decision was only communicated to SALC in June 2009, more than year after the request was submitted in March 2009. No satisfactory reasons were provided and the reasons relied on demonstrated a fundamental misunderstanding of South Africa’s international law obligations and the ICC Act.   

 Because Zimbabwe has witnessed a collapse of the rule of law, continued prevalence of state sponsored violence and a denial of access to justice, continued impunity does not bode well for constitutional reform and the possibility of free and fair elections. South Africa however, has the potential to serve as a viable forum for accountability: it has the legal framework and the technical capacity and expertise to dispense international justice. Moreover South Africa cannot afford to be seen as a refuge for international criminals the world over. It is in its own best interests to ensure accountability of these types of criminals. However, it seems, that South Africa lacks the political will to exert pressure when it is in a position do so, and in the present circumstances, legally obliged to do so.

Why is this case necessary? Firstly, judicial intervention is the only way to ensure that the torture victims secure redress. Secondly, if this decision is not rectified, the manner in which the South African authorities dealt with SALC’s request sets an unlawful and artificially high threshold for the investigation and prosecution of international crimes when those responsible are found in South Africa, effectively rendering the ICC Act redundant.

 It is therefore hoped that this case will identify what is required of the South African authorities when presented with credible evidence of the commission of international crimes.

The case will be heard between 26 March and 30 March 2012.

 For more information see SALC’s press release and background note here.

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