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SA judgments ‘so not apply in Zimbabwe’

The Business Day

HARARE — A ruling by South Africa’s appeal court on Wednesday, which gives the green light to South African police officials to investigate allegations of torture against Zimbabwean officials, has been dismissed as a “non-event” and an “unfortunate development” by Zimbabwe’s newly appointed prosecutor-general, Johannes Tomana.

The Supreme Court of Appeal in Bloemfontein on Wednesday ordered the South African Police Service (SAPS) to investigate the allegations, which date back to 2007, after a police raid on the Movement for Democratic Change (MDC) offices in Harare.

The court made the order after finding that, in keeping with South Africa’s Rome Statute obligations, the SAPS is empowered to investigate the alleged crimes whether or not the alleged perpetrators are present in South Africa.

It dismissed an appeal by the national police commissioner and the national director of public prosecutions against a judgment of the high court in Pretoria last year, which had ordered South African authorities to investigate Zimbabwean officials accused of committing crimes against humanity in Zimbabwe.

The SAPS and the National Prosecuting Authority (NPA) had refused to investigate a dossier submitted in 2008 by the Southern Africa Litigation Centre and the Zimbabwe Exiles Forum.

The dossier contained allegations that Zimbabwean officials had tortured MDC members, including its president, Morgan Tsvangirai.

The forum and the centre had successfully applied to the high court to review and set aside the decision not to investigate the complaint.

In an interview with Business Day on Wednesday, Mr Tomana warned the South African government not to overstep its legal obligations as a signatory to the Geneva Convention and infringe on the sovereignty of the Zimbabwean justice system.

“The assumption is that rulings given in South Africa are applicable in Zimbabwe. The reality is that they are not. We are not bound by any judgments made in South Africa and in any part of the world. We have our own courts, our own constitution and that is what we will use to guide us”, said Mr Tomana. “This is an unfortunate development coming from South Africa, which will sour relations unnecessarily.”

Mr Tomana pointed out that the Zimbabwean officials alleged to have been involved in torture could still freely travel to South Africa and were protected under diplomatic immunity when travelling there on government-to-government business.

Judge Mohammed Navsa of the Supreme Court of Appeal upheld a ruling that South African prosecutors had a duty under international law to probe the alleged torture of opposition activists in 2007. South African police “are required to initiate an investigation … into the alleged offences”, Judge Navsa said.

Charles Mangongera, a political commentator, dismissed the ruling as not likely to be of any consequence, given the very close relationship between President Robert Mugabe’s Zanu (PF) and the African National Congress.

“South Africa’s foreign policy has never been predicated on the advancement of human rights on the African continent. They have instead used their weight of influence to advance their economic interests and upholding liberation movement ties with parties like Zanu (PF). They will never arrest perpetrators of violence who set foot on their soil.”

The Zimbabwe Lawyers for Human Rights welcomed the precedent-setting judgment. “This is proof that there are no ‘safe havens’ on earth. Torture is a scourge which needs to be eradicated. Not only is it prohibited in the Zimbabwean constitution, but is an international crime,” said spokesman Kumbirai Mafunda.

“There are certain rights which are sacrosanct. So such a crime cannot be tolerated under any circumstances and the culture of impunity and aversion to accountability must end.”

Officials from the MDC were not available for comment.


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