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Looking to history for salvation
Nicole Fritz
May 03, 2007

Judge Richard 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.

Many courts 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?

My attitude 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 Africans.

This enabled 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.

How were 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 credibility.

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 opinions.

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.

Obviously, it's 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 South Africa.

There's a 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.

Our Constitution 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.

You were 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?

The important 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 future.

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.

Some individuals 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.

*Nicole Fritz is the executive director of the Southern Africa Litigation Centre in Johannesburg

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