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Legal Monitor - Issue 143
Zimbabwe Lawyers for Human Rights (ZLHR)
May 14, 2012

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Closing boarders of impunity

The days when Zimbabwean officials who torture civilians and then use political connections to evade international justice for crimes against humanity are coming to an end. Neighbouring South Africa is one country which Zimbabwean ministers, security sector commanders and their foot soldiers who are accused of torture could soon be afraid of visiting.

In a landmark ruling, the North Gauteng High Court declared that political and diplomatic relations cannot be used to shield these officials from being investigated by South African police and prosecuting authorities for torture and other grave human rights violations.

The ruling leaves Zimbabwean officials accused of torture but "immune" to justice at home vulnerable to arrest in South Africa under its domestic as well as international law.

North Gauteng High Court judge, Justice Hans Fabricius, was ruling on a case brought by Southern African Litigation Centre (SALC) and Zimbabwe Exiles Forum (ZEF).

The two human rights groups wanted the court to force South African authorities to take action against alleged perpetrators who commit abuses in Zimbabwe, and regularly visit South Africa for medical treatment and on business, or shopping jaunts.

This was after the South African police and that country's National Prosecuting Authority (NPA) refused to investigate a docket on Zimbabwe torture cases that implicated six ministers and several senior security sector commanders. Justice Fabricius dismissed arguments by South African police and the NPA that investigating or prosecuting Zimbabwean officials would strain diplomatic relations.

"Respondents' approach, according to this argument, would lead to the untenable situation that it would deny victims of international crimes standing in South African proceedings, and would shield decision-makers, like the respondents, from accountability when faced with making decisions regarding prosecutions of international crimes that occurred outside South Africa," reads Justice Fabricius' ruling, in a case which was the first of its kind in South Africa.

SALC and Pretoria based ZEF, which campaigns for the rights of exiled Zimbabweans, cited South Africa's national director of public prosecutions in the NPA as the first respondent, the head of the priority crimes litigation unit as second respondent, the director-general of justice and constitutional development as third respondent and the police commissioner as fourth respondent.

"Political considerations were taken into account by institutions, which, according to law, are obligated to act independently in the context of the Constitution and the legislation governing their functions, duties and obligations," reads the ruling, which notes that "a number of the implicated torturers had in fact visited South Africa during certain periods."

"First and fourth respondents' view was therefore affected by irrelevant political considerations having regard to their duties. Their attitude trivialised the evidence. Diplomatic considerations were also not the business of fourth respondent, to put it bluntly," reads the ruling.

Gabriel Shumba, chairman of ZEF, said the ruling would help keep "untouchable" perpetrators of torture in check.
"We are ecstatic about this decision, which shrinks further the borders of impunity for crimes against humanity not only in Zimbabwe, but on the continent," said Shumba, who fled Zimbabwe in 2003 after being tortured by intelligence officers for offering legal representation to an opposition legislator.

"This judgment is propitious in that it comes before yet another round of elections in Zimbabwe, and will go a long way in sounding the warning salvo to those who have previously and presently committed crimes against humanity under the guise of campaigning for ZANU PF," said Shumba.

Justice Fabricius said the Rome Statute of the International Criminal Court (ICC) Act, mandated South African authorities to act against perpetrators of torture from outside its borders. South Africa passed the ICC Act in 2002. "In order to give effect to the principle of universal jurisdiction, and to confer jurisdiction on domestic courts for international crimes, the ICC Act deems that all crimes contemplated by that Act, wherever they may occur, are committed in South Africa. Therefore it was legally irrelevant that the victims were tortured in Zimbabwe, because the ICC Act requires that they are to be regarded as having been tortured in South Africa," reads the ruling.

Justice Fabricius agreed with SALC and ZEF that acting to the contrary would make South Africa a "safe haven" for perpetrators of torture and genocide.

"This would make a mockery both of the universal jurisdiction principle endorsed by Parliament when enacting the ICC Act, as it would render the legislative provisions redundant, as well as the principle of accountable governance to which the Constitution commits South Africa," reads the ruling.

"South Africa comports itself in a manner befitting this country's status as a responsible member of the international community, and this would be done by seeking to hold accountable those responsible for crimes that shock the conscience of all human kind. The decision not to do so is effectively a shirking of these responsibilities, and therefore is of concern to the South African public," reads the ruling, which has been described by Zimbabwe Justice Minister Patrick Chinamasa as political. The judge ruled that both SALC and ZEF had locus standi to bring the case before the court on behalf of the Zimbabwean torture victims.

"The applicants state that they bring this application in their own interest in terms of s38 (a) of the Constitution of 1996, on behalf of and in interest of the victims of torture in Zimbabwe who cannot act in their own name in terms of s38 (b) and (c )of the Constitution, and in the public interest in terms of s38 (d) of the Constitution.

"They say that torture as a crime against humanity is one of the universally condemned offences, the prohibition of which is regarded as a norm of jus cogens under international law (a preventary norm from which no derogation is permitted)," reads the ruling, which notes that Zimbabwe is still undergoing a cycle of political violence.

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