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May 03, 2007
Goldstone served on South Africa’s Benches during apartheid and,
for nine years, was a member of the first Constitutional Court of
democratic South Africa. He is the former chief prosecutor for the
international tribunals for Rwanda and former Yugoslavia, and co-chair
of the Human Rights Institute of the International Bar Association.
in Zimbabwe continue to issue independent decisions, although those
judgements that are unfavourable to government are routinely ignored
by the executive. There is thus a complete breakdown in the rule
of law in Zimbabwe. During apartheid, some people argued that judges
could do so little to ameliorate the situation, and risked only
offering it legitimacy – they were morally obliged to resign. What
do you make of such criticisms?
was that, as long as South African courts were being used by oppressed
black South Africans to better their conditions, judges should remain
involved no matter how strongly they were opposed to racism and
apartheid. Even during apartheid some judges made decisions that
ameliorated the position and bettered the lives of many black South
a number of judges and others to participate actively in the transition.
One can proliferate the examples of South Africans who were able
to help manage the transition, and it is very important to our nation
that we were able to do so without getting people from the international
community to come in and do it. I'm sure that is true of some of
the courageous judges in Zimbabwe.
the decisions of Zimbabwean courts viewed by South African judges
such as yourself in the 1980s, early 1990s?
They were viewed
very positively. It is a discussion that I have been having here
in the United States. There is criticism of Justice Bryer for referring
in a decision of the US Supreme Court to a decision from Zimbabwe.
He was almost laughed out of court, but of course the decision he
referred to came out of the Zimbabwean Supreme Court at a time when
it was a much admired court. When you had Enoch Dumbutshena as chief
justice and Anthony Roy Gubbay as chief justice, the court had tremendous
To what extent
do you think tradition can be revived in a new Zimbabwean order?
I've no doubt
it can be, and very quickly. Look how quickly judges, who were almost
all appointed during the apartheid era, were able to convert to
a new Constitution pretty well and give impressive decisions and
Do you think
there will be a need to appoint new judges to ensure the credibility
of the judicial system, as happened in South Africa?
It's a very
different situation. In South Africa it was a racial transition,
from white minority rule to majority rule. You don't have the same
thing in Zimbabwe.
important to get judges who weren't appointed as figureheads to
do the bidding of President Robert Mugabe, so from that point of
view credibility is important. I think it will be a lot easier for
Zimbabwe to go through that type of process than it has been for
sense that a new Constitution will be needed in Zimbabwe. What can
the country learn from South Africa's process?
I'm sure South
African constitutional lawyers can play a hugely positive role and
I think it is important that it is a neighbouring African country.
is the result of a tremendous amount of comparative learning and
I think it is generally recognised within the international community
as the best model that has emerged in recent times.
It's a very
eclectic Constitution, built on the experience of many countries.
We looked at the Namibian Constitution, the Canadian Constitution,
the United States Constitution and the Indian Constitution. It's
one of the benefits of arriving late on the scene: you can benefit
from the successes of other countries and avoid their pitfalls.
the first prosecutor for the international criminal tribunals for
the former Yugoslavia and Rwanda and, although you didn't play an
active role in South Africa's Truth and Reconciliation Commission,
you observed it closely and have written about it. What relevance
could such processes have for Zimbabwe?
aspect, certainly in my view, is that what's common to all forms
of justice -- whether they are domestic or international prosecutions,
or truth and reconciliation commissions or hybrid tribunals -- is
that they provide a credible recording of what happened. That is
essential to a successful transition. Recording the truth is really
the only effective way to put an end to false denials, which are
always rife in a post-traumatic society. The perpetrators always
set up a system of denial.
It has stopped
the denials in three major countries now. Croatia, Serbia and Bosnia-Herzegovina
all regarded themselves as victims and the other sides as perpetrators.
The testimony has forced them to accept that they were all perpetrators
and all victims. I think that's very important in building a peaceful
The same is
true in Rwanda. There were denials, especially from Europe. But
also in Africa there were denials that there was a planned genocide.
It was said it was a tribal explosion but, of course, that is no
longer even suggested because it would be ridiculous. The evidence
established how carefully and, unfortunately, brilliantly executed
the genocide was.
But in Yugoslavia
and Rwanda prosecutions and the apportionment of accountability
accompanied the establishment of that record. In South Africa, that
was largely absent. How important do you think possible prosecutions
might be in securing transition in Zimbabwe?
I think the
South African amnesty process made it by the skin of its teeth,
and I'm sure that today it would be far more difficult to get international
acceptance of amnesty for crimes of that magnitude.
But it should
also depend on what the victims want. What is important about the
amnesty provisions and the TRC is that they represent decisions
taken by a democratically elected Parliament representing the victims.
Now, of course, you have the International Criminal Court (ICC).
It really represents the extent to which the international community
has set itself against impunity and amnesties for the worst sorts
of international crimes. This is a reality that would have to be
taken into account in Zimbabwe.
have suggested that, although Zimbabwe hasn't signed or ratified
the Rome Statute, the United Nations Security Council may refer
the situation in Zimbabwe to the ICC in the same way that it did
for Darfur. This has provoked criticism that the ICC is being used
to address atrocities committed only in Africa and not the West.
What would you say to this type of criticism?
I think the
first prize is for a society in transition to manage that process
itself. To get a Security Council mandate of investigation by the
ICC would be a last resort. But that would be for the people of
Zimbabwe to decide.
Fritz is the executive director of the Southern Africa Litigation
Centre in Johannesburg
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