Zimbabwe Torture Case: First Day’s Hearing
March 26, 2012
The hearing of SALC’s Zimbabwe Torture case got underway today in the Pretoria High Court. The first respondent — the office of the National Director of Public Prosecutions — sought to substitute their counsel. This arose in response to SALC and the Zimbabwe Exiles Forum (ZEF) last week putting up an affidavit from the second respondent in this matter — the head of the Priority Crimes Litigation Unit (PCLU), Anton Ackermann. The head of the PCLU is mandated to manage and direct the investigation and prosecution of international crimes and it was to the PCLU that we made submission of our dossier in 2008. Ackermann’s affidavit, admitted in court today, makes plain that he was, and still is of the view, that the dossier we submitted was sufficient to warrant the initiation of an investigation and he recommended that a docket be opened; that the police liase with us as to their investigation; that the PCLU be consulted for guidance in the investigation and that the NPA make the ultimate determination as to how to proceed with the docket.
This evidence is particularly important to our case as it suggests that the views of a critical decision-maker (if not the critical decision-maker) were ignored. But the affidavit also makes plain the infighting within the NPA, and the extent to which Ackermann was misled, sidelined and threatened in a bid to keep his views from the court. One of those persons alleged to have deliberately attempted to keep Ackermann’s views from the court, is Christopher Macadam who was initially instructed to appear for the first respondent. On the grounds that it would not be appropriate for counsel who is himself alleged to have engaged in subversion of justice to mount a defence to these charges, the respondents sought to substitute counsel and requested a postponement so that new counsel might undertake preparation. It appears the court is eager to hear this matter — so much preparation already having gone into the hearing — and has ordered that the hearing continue tomorrow and that the original counsel proceed to argue the matter with the exception of those issues in which he is alleged to have personal involvement.
Tomorrow, SALC and ZEF’s counsel, Wim Trengove SC will address the courts on the substance of our submissions.
NEWS RELEASE – Southern Africa Litigation Centre (SALC) and Zimbabwe Exiles Forum (ZEF)
26 March 2012
NPA INFIGHTING CAUSES POSTPONEMENT OF ZIMBABWE TORTURE CASE
AS NEW TESTIMONY SHOWS PRIORITY CRIMES UNIT URGED POLICE TO INVESTIGATE
Johannesburg – The North Gauteng High Court today was forced to postpone the landmark case brought by the Southern Africa Litigation Centre (SALC) and the Zimbabwean Exiles Forum (ZEF) to compel South Africa to investigate and prosecute high level Zimbabwean officials accused of crimes against humanity – after the National Director of Public Prosecutions (NDPP) appointed new counsel just days before the case was due to start.
The NDPP’s last-minute decision to terminate the services of State Advocate, Christopher Macadam, coincided with stunning new testimony from Anton Ackermann, the head of its Priority Crimes Litigation Unit (PCLU) – indicating that he had recommended an investigation, had disagreed with the police’s reasons for not pursuing the case and had been manipulated and misled by both his colleagues within the National Prosecuting Authority (NPA) and the State’s Advocate.
In an extraordinary twist, Ackermann’s affidavit was lodged before the Court by the main applicant, SALC, even though he is one of the four respondents in the case.
“The contents of Ackermann’s affidavit cast serious doubt over the reasons that the NDPP and the Police Commissioner gave for not initiating an investigation into these crimes against humanity,” said Nicole Fritz, Executive Director of SALC. “His testimony also calls into question the very independence and impartiality of the NPA and its prosecutors.”
As the head of the PCLU, Ackermann is in law responsible for the management and direction of investigations and prosecutions of international crimes and he was the original recipient of SALC’s request to initiate an investigation. According to his sworn testimony, he called for a docket to be opened, SALC to be consulted, the PCLU to be approached for guidance and for the docket to be submitted to the NPA for a final decision. None of these recommendations were followed.
As a cited respondent, Ackermann was within his rights to independently participate in the proceedings. However, as his affidavit and the accompanying evidence demonstrate, his attempts to provide his version of events were met with persistent resistance on the part of his colleagues – and even threats.
“Ackermann’s willingness to come forward with his side of the story, despite the fact that it could severely compromise his career, demonstrates both his integrity and his commitment to dispense justice independently and without fear, favour or prejudice,” said Gabriel Shumba, Chair of ZEF. “It is sad to think that he is likely to be punished for seeking to do his job properly.”
And the threats have been very clear. For example, in correspondence between Ackermann and Macadam that is now before the Court, Ackermann was warned to “very carefully and seriously consider the implications of including a statement that you were not satisfied… which has very important consequences for both the Applicants and the Respondents. I also believe that the court would be required to make findings on your ethical conduct which could result in further action being taken against you … you may well be held liable in your personal capacity for the costs” incurred.
“Ackermann’s affidavit and appended correspondence makes it clear that he was manipulated and lied to for years and that his colleagues and the State Advocate resorted to bullying tactics better suited to playgrounds in a desperate attempt to silence him,” said Shumba.
In addition to being threatened, Ackermann’s attempts to secure legal representation were continuously interfered with. In email correspondence annexed to the affidavit, the NDPP, Menzi Simelane, who is currently on special leave, assured Ackermann that it would not be necessary to file a separate affidavit since issues that he would have raised “can and will be raised” in the NDPP’s affidavit – although this never occurred. The State Attorney was also instructed not to engage with him, and assistance was only forthcoming once it was discovered that Ackermann intended to file this affidavit.
“It is prosecutors such as Ackermann that inspire confidence in the justice system and the rule of law and it is no surprise that George Bizos signaled Ackerman out early on in his career as the ‘outstanding exception amongst those [apartheid era prosecutors] who thought that protecting the police was more important than justice’” said Fritz.
The case will now be heard on a later date to be determined by court.
“While the delay is regrettable, SALC and ZEF believe that the postponement is necessary for the proper adjudication of this matter given the importance of the issues at stake,” said Fritz. “We hope that the NPA now proceeds by properly dealing with the case and not by seeking to take punitive action against Ackermann.”
For more information contact:
Nicole Fritz, SALC Executive Director, +27 11 5875065, Cell +27 82 600 1028; NicoleF@salc.org.za
Gabriel Shumba, ZEF Chairperson, Cell +27 72 639 3795
Alan Wallis, SALC, + 27 11 5875065, Cell +27 82 826 5700; AlanW@salc.org.za
This case concerns South Africa’s legal obligations to investigate and prosecute high level Zimbabwean officials accused of crimes against humanity. SALC and ZEF are asking the High Court to review and set aside the decision of the National Prosecuting Authority and the South African Police Services not to investigate Zimbabwean officials linked to acts of state-sanctioned torture following a police raid on the headquarters of the Movement for Democratic Change in 2007. This case represents the first time that a South African court will have the opportunity to provide guidance on the scope and nature of the obligations placed on the South African authorities by signing up to the International Criminal Court and its domestication thereof. Lawyers for Human Rights represent SALC and ZEF in this matter.