‘Universal jurisdiction” is generally not a popular concept among African governments, including our own. It refers to the power which a state claims, to prosecute persons for crimes committed outside the state’s own territory, even where such crimes have no connection to that state.
When Western powers do it – as Belgium tried to in 2000 by attempting to arrest the Democratic Republic of Congo’s foreign minister – it is mostly taken as extremely arrogant and “neo-colonial”.
But as it happens South Africa also claims some universal jurisdiction. In 2002 Parliament passed the Rome Statute of the International Criminal Court Act the “ICC Act”.
It absorbed into South Africa’s domestic law the very serious crimes which the ICC had recently been established to prosecute – war crimes, crimes against humanity and genocide.
It is an extraordinary law because it gives South African courts extra-territorial jurisdiction, the power to prosecute a person who has committed one of these particularly nasty crimes outside the country.
The crime need not have anything to do with South Africa, except that after committing it, the perpetrator sets foot on South African soil where he or she can be arrested.
In 2008 the Southern Africa Litigation Centre (SALC) in Johannesburg launched the first attempt to implement the ICC Act.
It asked the National Prosecuting Authority (NPA) to investigate several senior Zimbabwean Zanu-PF officials for committing crimes against humanity by allegedly torturing members of the then opposition Movement for Democratic Change (MDC) in 2007.
SALC said these Zanu-PF officials frequently travelled to South Africa and so could be arrested and tried under the ICC Act.
The NPA declined to take up the case, saying the SA Police Service (SAPS) felt they would be unable to investigate the crimes from South Africa, that the courts would be unable to adjudicate them, that the investigation would harm relations with Zimbabwe, etc.
So last week SALC asked the Pretoria High Court to order the NPA to launch an investigation.
Sharp differences emerged among NPA officials. The court heard that Anton Ackermann, the head of the NPA’s Priority Crimes Litigation Unit, which is specifically tasked to deal with ICC Act cases, had recommended that the SAPS should investigate the case and was not satisfied with its reasons for refusing to do so.
Judge Hans Fabricius is now pondering his decision. His interventions last week suggest he might well order the NPA to investigate the alleged Zanu-PF crimes.
Coincidentally, the second case under the ICC Act is to be launched this week, also involving a country in which South Africa is deeply involved as a mediator.
A group of Malagasy citizens is to ask the NPA to investigate charging the deposed Malagasy president Marc Ravalomanana – now living in South Africa – for crimes against humanity because they allege he ordered his guards to fire at political demonstrators, killing about 70 of them, in the capital Antananarivo on February 7, 2009.
These two cases could test the real commitment of the South African government to the rule of law.
On past performance don’t count on the rule of law prevailing.
Recall that last year President Jacob Zuma joined his peers from the Southern African Development Community (SADC) in effectively killing the SADC Tribunal because it had ruled that the Zanu-PF government in Zimbabwe had violated the rights of white farmers in the way it seized their farms.
And Zuma has made it very clear since then that he believes the powers of South Africa’s own courts, even the Constitutional Court, must be reviewed because they are trespassing beyond their own proper territory into the jurisdiction of the executive arm of government.
How much more must he believe that to be true of a law that authorises – in fact obliges – South Africa’s courts to venture into foreign territory?
Like the SADC Tribunal, the ICC Act was created in a moment of what the hard-nosed Zuma administration probably now regards as foolish judicial idealism.
Will this inconvenient law go the way of the Tribunal?