THE South African Supreme Court of Appeal yesterday ordered the South African Police Service (SAPS) to investigate high-level Zimbabwean security officials accused of committing crimes against humanity in the run-up to the 2008 elections.
The landmark ruling said perpetrators of systematic torture that happened in Zimbabwe could now be investigated in South Africa irrespective of whether or not they were present in South Africa.
This follows MDC-T claims that over 200 of its supporters were killed or maimed in the bloody 2008 presidential run-off in the country.
“The SAPS are required to initiate an investigation under the implementation of the Rome Statutes of International Criminal Court 2002 into the alleged offences,” the court said.
The Supreme Court, however, said the exercise of enforcement jurisdiction was limited to within South Africa’s borders.
“Accordingly, the competence to investigate only persists within South Africa’s borders, absent the consent or co-operation of foreign States.
“. . . it is necessary to record that the respondents have not called for the requested investigation to extend outside of the borders of South Africa.
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“In fact, they offered to make the victims and other Zimbabwean nationals available to the South African authorities in South Africa.”
The Southern Africa Litigation Centre (SALC), which brought the case along with the Zimbabwe Exiles Forum (ZEF), said such crimes strike “at the whole of humankind and impinge on the international conscience”.
“The court’s decision makes it clear that South Africa has a legal obligation to investigate the perpetrators of international crimes wherever the alleged crimes were committed,” said Priti Patel, deputy director of SALC. “The Supreme Court ruling confirms that the dispensing of international justice is not restricted to international forums, and commits the South African authorities to play their part in ensuring that torturers and other international criminals are held accountable for their actions.”
SALC promotes human rights and the rule of law in Southern Africa through litigation, advocacy and training, while ZEF seeks to combat impunity and achieve justice for human rights violations in Zimbabwe and to support Zimbabweans in exile.
In 2008, SALC submitted a dossier to South Africa’s National Prosecuting Authority (NPA) containing evidence of the alleged involvement of key Zimbabwean security officials in perpetrating crimes against humanity in relation to the torture of opposition party members in March 2007 — and called on the NPA and the SAPS to initiate an investigation into the alleged crimes.
The NPA and SAPS, however, refused to investigate forcing SALC and ZEF to appeal the administrative decision to the High Court, which ruled in their favour in 2012 leading to High Court’s decision being appealed in the Supreme Court.
SALC said during its ruling the Supreme Court outlined the evidence in the dossier noting that it included evidence of severe physical assaults, including the use of baseball bats, water-boarding and electrical shocks being applied to genitalia by Zimbabwean officials.
“Zimbabweans can be proud today knowing that South Africa will not shirk from its responsibility to ensure justice for victims of crimes against humanity,” said Gabriel Shumba, the chairperson of ZEF.
“This judgment is a critical step in the international fight against impunity.”