THE government suffered another legal reversal yesterday when the North Gauteng High Court ordered South African authorities to investigate Zimbabwean officials accused of committing crimes against humanity.
The judgment clarified that the police and the National Prosecuting Authority (NPA) Priority Crimes Litigation Unit had a duty to investigate allegations of torture as required by the International Criminal Court Act. As a signatory to the Rome Statute setting up the court, SA committed itself to investigate and prosecute perpetrators of serious international crimes.
The Southern African Litigation Centre and the Zimbabwe Exiles Forum went to court after the police in SA and the NPA refused to probe claims of torture by Zimbabwean authorities after a 2007 raid on the Harare headquarters of the Movement for Democratic Change.
In March 2008, the centre submitted affidavits to the NPA in which 17 people attested to having been tortured in Zimbabwean police custody. The police and the NPA refused to investigate, saying they were under no obligation to do so.
Judge Hans Fabricius said a number of the alleged Zimbabwean perpetrators had visited SA.
“I need scarcely emphasise that the constitution has granted (then acting national director of public prosecutions Mokotedi Mpshe), in the context of the NPA, independence, which he must exercise impartially without fear or favour; it is not for him to blindly follow political views or policies, let alone to anticipate such,” the judge said.
“Accordingly … Mpshe SC and (former acting police commissioner) Mr Tim Williams made errors of law regarding the powers and duties in terms of international law and domestic law.”
Judge Fabricius ordered that the head of the Priority Crimes Litigation Unit, Anton Ackermann, must render all possible assistance to the police commissioner in the evaluation of the request by the centre for an investigation. He ordered Mr Ackermann to manage and direct such an investigation.
Nicole Fritz, executive director of the Southern African Litigation Centre, said yesterday: “This judgment will send a shiver down the spines of Zimbabwean officials who believed that they would never be held to account for their crimes, but now face investigation by the South African authorities.”
She said the decision was not just about Zimbabwe, it also set a much broader precedent by ruling that South African authorities had a duty to investigate international crimes wherever they took place. “It is a major step forward for international criminal justice,” Ms Fritz said.
The NPA said last night it would study the judgment, interrogate it and then determine what legal avenue to explore. “It should be noted the NPA does not have an investigative mandate, as only the police can conduct investigations,” NPA spokesman Mthunzi Mhaga said.
The NPA had not taken any decision on Mr Ackermann’s conduct yet, he said. Mr Ackermann submitted an affidavit to the court in March. He indicated he had recommended an investigation, had disagreed with the police’s reasons for not pursuing the case, and had been manipulated and misled by colleagues.