In January 2014 the South African Police Service (SAPS) applied to the Constitutional Court for leave to appeal the Supreme Court of Appeal’s (SCA) decision that deemed SAPS competent to investigate crimes against humanity committed in Zimbabwe. The Southern Africa Litigation Centre (SALC) and the Zimbabwe Exiles Forum (ZEF) have opposed the appeal and the Constitutional Court will hear the matter on 19 May 2014. Despite just and legally sound verdicts from the North Gauteng High Court and the SCA, the tenets of the case have been misunderstood by some.
Firstly, it must be emphasised that the case is being brought in terms of South African legislation, the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act) and not in terms of the international statute, the Rome Statute of the International Criminal Court. The ICC Act domesticates the offences of genocide, crimes against humanity and war crimes, making them crimes under South African law.
Secondly, because it is South African legislation, and so operates independently from the Rome Statute, the applicability of the ICC Act is not limited to states parties to the Rome Statute. Section 4 (1) of the ICC Act clearly states that, “any person who commits a crime is guilty of an offence” and section 4(3) goes on to prescribe jurisdiction over, “any person who commits a crime contemplated in subsection (1) outside of the territory of the Republic…”.Therefore, the fact that Zimbabwe is not a party to the Rome Statute is irrelevant.
Thirdly, issues of jurisdiction have been misunderstood. To fully appreciate jurisdictional grounds, one must clearly distinguish between prescriptive, enforcement and adjudicative jurisdiction. South Africa derives prescriptive jurisdiction, the power to make laws, from section 4(1) of the ICC Act. South Africa also has mechanisms that allow for enforcement jurisdiction, the power to use measures to ensure that the rules made under prescriptive jurisdiction are adhered to. This includes the power to investigate crimes under the ICC Act. Lastly, South Africa has adjudicative jurisdiction, the power of a state’s courts to settle contested matters and apply the law, which ensures that a court may preside over the prosecution of these crimes (in this case, where the requirements in section 4(3) of the ICC Act have been satisfied).
Fourthly, and this is linked to the different types of jurisdiction, the requirement of physical presence for investigations has also been misunderstood. Physical presence in the country is not strictly required for purposes of investigation in South Africa. When the ICC Act is read in light of the abovementioned types of jurisdiction it becomes clear that section 4(3) confers only adjudicative jurisdiction hence, only the prosecution of perpetrators is conditioned on their physical presence in South Africa. The competence to investigate all crimes (a form of enforcement jurisdiction) is drawn from section 205(3) of the South African Constitution, the South African Police Service Act 68 of 1995, and the National Prosecuting Authority Act 32 of 1998.
Lastly, the alleged violation of Zimbabwean sovereignty has been raised. However, this case deals solely with a South African piece of legislation, placing obligations on South African officials, to investigate in South Africa. The SCA judgment does not require that SAPS investigate on Zimbabwean soil, and so there is no violation of Zimbabwean sovereignty. Whilst this case is the first to be brought in terms of the ICC Act, the principle of South African courts having jurisdiction over crimes committed outside of South Africa by foreigners is not novel and should not be regarded as problematic. South Africa has other legislation that grants jurisdiction over crimes committed outside of its borders.
In terms of the broader picture, theoretically, SAPS could be obliged to investigate other crimes against humanity, however, because there must be evidence in South Africa, the situations in which this would apply are rather narrow. For example, the chance of finding evidence of Syrian human rights abuses in South Africa is highly unlikely, and so the power to investigate would not be present. In SALC’s case the geographical proximity and most importantly the existence of witnesses, evidence and the anticipated presence of suspected perpetrators in South Africa are other important linking factors that make crimes against humanity perpetrated in Zimbabwe actionable in South Africa.
Stripped of these misunderstandings, the merits of the case are much more clearly framed and it is hoped that the South African authorities will be compelled to do their duty.
 For example, priority offences in the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004.The first prosecution in terms of this Act was against a Nigerian national accused of terrorist activities committed in Nigeria and issues of investigative power were not raised in this case despite the offences in question being committed in Nigeria. Other examples include the Regulation of Foreign Military Assistance Act 15 of 1998, the Prevention and Combating of Corrupt Activities Act 12 of 2004 Act, the Prevention of Organised Crime Act 121 of 1998; and the Implementation of the Geneva Conventions Act 8 of 2012.
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