South Africa’s government will this week be urged to separate its international legal responsibilities and politics, in a landmark legal case based on incidences of torture in Zimbabwe.
The Southern African Litigation Centre (SALC) and the Zimbabwe Exiles Forum are urging the South Africans to investigate and prosecute Zimbabwean officials accused of crimes against humanity. These officials have been identified as regular visitors to South Africa and the country is being urged to honour its commitments under the Rome Statute to launch an investigation.
The case is based on a dossier submitted to the National Prosecuting Authority (NPA) and the South African police in 2008, which detailed torture suffered by MDC members in Zimbabwe in 2007. The NPA and the police decided not to take the case further, and this week’s court challenge will attempt to overturn this decision.
Arguments on the merit of the case got underway on Tuesday after a postponement on Monday, which in turn followed the ‘startling’ affidavit of one of the respondents in the case. Anton Ackermann from the NPA’s Priority Crimes Litigation Centre recently switched sides and revealed that in 2008 he had recommended an investigation. His affidavit, submitted last week, also indicated that he was threatened by colleagues at the NPA and the State Advocate to go along with their decision not to investigate.
The legal team representing SALC and the Exiles Forum argued Tuesday that South Africa had an international obligation to investigate and prosecute the Zim officials in this case. Advocate Wim Trengove told the court that the decision not to investigate was unlawful and a failure under international law.
The State meanwhile led its opposing arguments by explaining that it made little sense, in terms of inter-country relations, to investigate state sponsored violence in Zimbabwe. The State Advocate, Christopher Macadam, also told the court that there was no point in referring the torture dossier to the then chief investigations team, the Scorpions, because they were about to disband.
Gabriel Shumba, the Director of the Zimbabwe Exiles Forum, told SW Radio Africa on Tuesday that the case sets an important precedent in terms of the rule of law, because it will urge a separation between law and politics.
“This case exposes that South Africa chose to sacrifice its international and domestic obligations over political expediency,” Shumba said, arguing that the rule of law and politics must be separated.
Shumba meanwhile also explained that the hopes of thousands of exiled Zimbabweans rest on the success of this case, “because it seeks to end the impunity that forced so many out of their country.”
“Other legal forms like the SADC Tribunal have failed to provide justice for Zimbabweans. But this case will clearly show that the circle of impunity is closing in on the perpetrators,” Shumba said.
South Africa is the regionally appointed mediator in the Zimbabwe crisis, although Jacob Zuma has indicated that he won’t be coming to the country any time soon. Some observers have argued that this shows that he is not serious about ushering in real change in Zimbabwe.
Other observers meanwhile have said this attitude could affect the court case in South Africa. But the Exile’s Forum’s Shumba said on Tuesday that he does not think this will happen.
“The judiciary in South Africa, unlike in Zimbabwe, is independent of the state. So I think the legal responsibilities of the country will no longer be affected by politics,” Shumba said.