Last week’s judgment by the North Gauteng High Court ordering South African authorities to investigate alleged torture by 18 high-ranking Zimbabwean officials was groundbreaking.
It was the first time a court had ordered the executive to implement South Africa’s pioneering International Criminal Court Act of 2002, which authorises South Africa to prosecute the gravest crimes even beyond South Africa and when no South Africans are involved.
In March 2008, two Johannesburg-based NGOs – the Southern Africa Litigation Centre and the Zimbabwe Exiles Forum – had asked the South African authorities to investigate the Zimbabwean officials for alleged complicity in the torture of members of the opposition Movement for Democratic change (MDC).
The National Prosecuting Authority (NPA) and police declined. They said they had no real chance of successfully prosecuting the case because they would get none of the necessary help from the Zimbabwean authorities.
And they said investigating high-ranking Zimbabwean officials would wreck South Africa’s efforts to mediate a resolution of that country’s political crisis.
In the High Court last week, Judge Hans Fabricius rejected these arguments, telling the South African authorities that they had misunderstood what was being asked of them; they were being asked to conduct an investigation to discover whether there was a basis for further action, such as arrests or laying charges.
They were not being asked – not yet – to lay charges or prosecute. Judge Fabricius said considerations about what impact any legal actions might have on South Africa’s diplomacy in Zimbabwe were premature.
Zimbabwean officials – clearly from Zanu-PF – have been quoted in the Zimbabwean media as saying the judgment would remain “largely symbolic” as any investigation of the officials would certainly end South African mediation efforts.
That is possibly wishful thinking by them. If the NPA and SAPS do not appeal the judgment, or if they appeal and lose, they will be obliged to conduct an investigation.
Some legal watchdogs suspect that might just be a half-hearted investigation.
But if they are to avoid further censure and another order by Judge Fabricius, they will surely have to do more than that, his judgment implied.
That would include making a good faith effort to get further evidence from the alleged victims – and to secure the co-operation of the Zimbabwean authorities to conduct investigations inside Zimbabwe.
That request for co-operation will no doubt be rejected and it will almost certainly annoy the relevant Zimbabwean authorities (all Zanu-PF) and probably raise doubts in their minds about the South African government’s own position on this issue.
Remember that, based on its own experience, Zanu-PF may not be capable of distinguishing the executive arm of government from the judiciary very clearly.
But would that – or an actual prosecution if it comes to that – indeed upset South Africa’s mediation as the government would have us believe?
Not necessarily. Zanu-PF is not taking President Jacob Zuma’s mediation very seriously. It continues to violate most of its commitments under the 2008 agreement among Zanu-PF and the two MDC parties, which set the rules for the current, very shaky, government of national unity among the three.
The alleged torture by Zanu-PF officials of MDC members and others occurred before the unity government was created.
Yet even inside that government, the security agencies and the judiciary, which Zanu-PF kept securely under its own control, have continued to persecute the MDC.
This recalcitrance is causing immense frustration to South Africa’s Zimbabwe mediators.
Yet it is surely no surprise. Zanu-PF understands all too clearly that the kind of deal South Africa requires of it, to create a really level political playing field for the next elections, is simply not in its interests.
Unless the South African government introduces some stick into the game, it is hard to see why Zanu-PF would play ball.
Perhaps, therefore, it might be useful to Zuma and his mediators if the courts began to introduce the notion into the negotiations that there might actually be consequences to Zanu-PF for its actions. – Daily News Foreign Service