The Constitutional Court says the police must investigate all crimes against humanity brought to their notice.
The Zimbabwe Exile Forum said it is “ecstatic” with the Constitutional Court’s decision on Thursday to order the South African Police Service to investigate allegations of torture committed in Zimbabwe.
Gabriel Shumba, the forum’s chairperson and a Zimbabwean lawyer, who was held and allegedly tortured by Zimbabwean police for several days in 2003, said he is “delighted that the South African courts have taken the lead in sending a message to those conducting torture that they cannot behave with impunity”.
The ruling held that the South African police were obliged by international law and the Constitution to investigate a case lodged by the forum and the Southern African Litigation Centre in 2008 relating to the alleged torture of more than 100 people, who were arrested at the Harare offices of the opposition Movement for Democratic Change.
The case will have implications for other alleged victims of torture living in South Africa and for those wanted for war crimes.
Shumba hopes that it will encourage courts in other African countries to take a similar stance.
“Should it be reasonable and practicable for South African authorities to investigate international crimes committed elsewhere, for instance in the Democratic Republic of Congo, potentially the victims of those crimes might approach South Africa’s investigating authorities for assistance,” he said.
The court did include the proviso that the duty to investigate international crimes is limited to the extent to which the country in which the alleged crimes occurred is unwilling or unable to investigate the matter.
“There is no evidence that Zimbabwe has launched any investigation or has indicated that it is willing to do so, given the period of time since the alleged commission of the crime,” the judgment said.
It made sense for the SAPS to investigate the complaint because of the proximity between South Africa and Zimbabwe, the court said.
It also said that although the principle of nonintervention in another state’s territory must be observed, this would not be violated by an investigation conducted exclusively within South Africa’s borders.
“It’s been a long journey to get to this point and the proof will now be in the pudding,” said Shumba. “It will depend on the reaction of the South African authorities to this judgment and on how soon an investigation is launched.”
The Constitutional Court on Thursday ordered the police to investigate the matter and said it should be expedited.
It opted not to return the case to the Pretoria high court, saying that there has already been an “inordinate delay”.
Both the police and the National Prosecuting Authority (NPA) refused to investigate the case when approached by the forum and the litigation centre in 2008.
In May 2012, the high court held that the South African authorities had not acted in accordance with their obligations, and that the decision not to investigate the matter had been taken unlawfully and unconstitutionally.
The NPA and police appealed to the Supreme Court of Appeal in November last year, where the police argued that they could only investigate a person allegedly involved in a crime if that person was in South Africa.
The appeal court held that the police, in particular, are empowered – and required – to investigate crimes against humanity, as detailed in the dossier handed to them. It contained 23 signed affidavits testifying to torture.
Drawing on the Constitution, the Rome Statute of the International Criminal Court Act and “South Africa’s international law obligations”, the Constitutional Court ruled that the South African police have a duty to investigate the crimes “against humanity of torture allegedly committed in Zimbabwe”.
The judgment, which was unanimous, held that the appeal court was correct in finding that “our country’s international and domestic law commitments must be honoured. We cannot be seen to be tolerant of impunity for alleged torturers.
“We must take our rightful place in the community of nations with its concomitant obligations.
“We dare not be a safe haven for those who commit crimes against humanity.”
Nicole Fritz, the litigation centre’s executive director, said in a statement on Thursday that the court has set an important precedent.
“South Africa will not be a safe haven for perpetrators of the world’s worst crimes,” said Fritz. “The judgment represents a clear appreciation for the role of international criminal law and its importance to our domestic justice system.”