The Southern Africa Litigation Centre (SALC) and the Zimbabwe Exiles Forum (ZEF) – through Lawyers for Human Rights – are challenging the South African Police Service’s (SAPS) application for leave to appeal to the Constitutional Court against last year’s order in the Zimbabwe Torture Docket case.
The Supreme Court of Appeal (SCA) last year ruled that SAPS and the National Prosecuting Authority (NPA) have an obligation in terms of international and domestic legislation to investigate crimes against humanity committed in Zimbabwe. The case deals with the 2007 raid on opposition Movement for Democratic Change’s offices at Harvest House, Harare and the reported abuses that occurred during that incident.
SALC and ZEF initially brought a docket of evidence of these abuses containing witness statements and affidavits by medical and other witnesses. The docket had evidence that assaults were systematic, widespread, politically motivated and amounted to torture. Acts of torture, even committed abroad, have been criminalised as crimes against humanity under South African law through the Implementation of the Rome Statute of the International Criminal Court Act (ICC Act).
Throughout the case, SALC and ZEF have sought to compel authorities to conduct an investigation but they have it with the requirements for a prosecution. As a result, at issue is whether or not South African authorities are under duty to investigate under circumstances where there is a reasonable suspicion that crimes against humanity have been committed and when it is clear that the perpetrators may visit South Africa.
SAPS is the only party to seek leave to appeal the SCA decision, arguing that the application of the Rome Statute was misinterpreted. They have argued that the decision not to initiate an investigation was based on the fact that Zimbabwe, as a sovereign state, is not a member of the international Rome Statute and as such are not beholden to its obligations.
They said, also, that SAPS was not legally authorised to initiate the investigation, explaining that such an investigation would frustrate existing and ongoing criminal investigations, inter-country police cooperation and international relations.