Background to Monday’s Landmark Case on Crimes Against Humanity in Zimbabwe and SA’s Responsibilities

March 23, 2012

SALC’s case relating to widespread and systematic torture in Zimbabwe — crimes against humanity — which has been five years in the making finally goes to court on Monday. Here’s some background to the case:

Why now?

It isn’t so much that this case has been brought now. This case is five years in the making. The primary events which the dossier, forming the basis of the challenge, chronicles relate to events occurring in March 2007 when Zimbabwean police raided the MDC’s headquarters and detained and tortured scores of activists. Affidavits relating to those events were collected in 2007 and 2008. We submitted our dossier relating to those events and making the case that torture was committed in a widespread and systematic way in Zimbabwe against political opponents of ruling party ZANU PF– hence a crime against humanity — and that South Africa’s Implementation of the Rome Statute Act for the International Criminal Court gave SA authorities powers to investigate and prosecute crimes of persons who were present in SA after committing those crimes (even if they weren’t SA nationals and the crimes had been committed outside SA). We maintained that the Zimbabwean officials named in our dossier as perpetrators travelled into SA on a regular basis and so could be subject to prosecution. We submitted our dossier when we did in the rather futile hope of it having some deterrent effect on the violence that we anticipated would happen after the elections. As you’ll know the post-election violence was of an unprecedented scale.

After more than a year considering our dossier, the prosecuting authorities informed us that the police did not intend investigating the matter. We then began the process of launching a review application before the SA High Court, asking that it review and set aside the decision that had been taken. Litigation is notoriously slow and cumbersome and after many rounds of exchanging legal papers we now finally have our court dates. As it is we think the dates are rather fortuitous — with developments in Zimbabwe suggesting that some of the political authorities are pushing for elections this year in violation of the Global Political Agreement and with fears that violence again will be used to intimidate and harass and there being no obvious domestic attempts to bring the culture of impunity to an end in Zimbabwe — the case, rather than just submission of our dossier, may have some appreciable impact ( the apprehension at least for those committing violence in Zimbabwe that their impunity ends at Zimbabwe’s borders).

What precedent do you hope to set?

As for precedent, the case, if successful, won’t itself usher in investigations and prosecutions but opens the way for these to happen. If the court upholds our arguments, it may order that the prosecuting authorities have acted unlawfully in their treatment of our dossier, that they didn’t give it the consideration required and that their initial decision not to investigate/prosecute is set aside and they must apply their minds anew to our submissions. It would mean that the court would underline the importance of SA’s international obligations vis-à-vis the International Criminal Court, the high principle at stake and the care and importance SA must accord charges of crimes against humanity, war crimes, genocide. It will be the first time a SA court is asked to make a determination regarding SA’s ICC Act and globally would serve to affirm the ongoing importance of universal jurisdiction laws. It will also point to the fact that international criminal justice is not only secured on the international realm but perhaps most importantly within domestic jurisdictions.

What do we expect?

We believe we have a very strong case and so we’re anticipating a positive outcome.

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