SEVERAL international law experts have described the decision by the SAPS not to investigate the torture of opposition activists in the run-up to the 2008 elections in Zimbabwe as “irrational and unreasonable”.
Professor John Dugard, former UN special rapporteur on human rights in the Occupied Palestinian Territory, University of London criminal law professor Kevin Heller, Stellenbosch University law professor Gerhard Kemp and UCT international law lecturer Dr Hannah Woolaver have joined the case as amici curiae (friends of the court).
Police commissioner General Riah Phiyega is appealing against the Supreme Court of Appeal’s 2013 judgment declaring that the SAPS is empowered to investigate the alleged offences irrespective of whether or not the alleged perpetrators are present in South Africa.
Police declined to investigate as such action “would unavoidably violate Zimbabwe’s sovereignty”.
In May 2012, the North Gauteng High Court set aside then acting police boss Tim Williams’s June 2009 decision not to investigate the complaints laid by the Southern African Human Rights Litigation Centre (SALC) and the Zimbabwe Exiles Forum (ZEF) that certain officials committed crimes against humanity against Zimbabwean nationals in Zimbabwe.
Also joining the matter are the Netherlands’ Peace and Justice Initiative, a network of international criminal law professionals, and US NGO the Tides Center, which campaigns for effective prosecution of sexual violence as a crime against humanity, to prevent heinous crimes such as rape and torture, and to ensure that South Africa does not become a safe haven for perpetrators of such crimes.
Wits University’s Centre for Applied Legal Studies, which Dugard founded, is also amicus curiae.
Dugard, Heller, Kemp and Woolaver say that international law permits – but does not require – South Africa to probe allegations of torture, whether systematic or otherwise, committed in Zimbabwe, without the suspects being present in South Africa.
“Under domestic law, the decision not to investigate was irrational and unreasonable. It was irrational because no proper preliminary investigation was conducted to determine whether further investigation was appropriate,” they say.