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The Mail and Guardian
23 May 2020
By Atilla Kisla

Six years after the Torture Docket case – What is the current status of the investigation?

Torture, one of the most horrendous violations of a person’s human rights, appears to have become a sad reality of life in Zimbabwe. Over the past week there has been international coverage of the abduction and gruesome torture of three opposition party youth leaders. The International Court of Justice considers the prohibition of torture as a “peremptory norm”, a norm of international that is binding on any country in the world without requiring a state’s consent or enactment as domestic law. Nevertheless, torture remains a common practice in many parts of the world.

Looking at this from a South African perspective, the May 2020 incident in Zimbabwe  reminds us of the groundbreaking 2014 Constitutional Court decision in National Police Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre Trust (The Torture Docket case) where the court held that the South African authorities — the South African Police Service (SAPS) and National Prosecution Authority (NPA) — had a duty to investigate and prosecute international crimes allegedly committed in Zimbabwe. The judgment by the Constitutional Court specifically referred to crimes against humanity of torture. As torture appears to be a growing issue in Zimbabwe, we have to reflect and ask: What is the current status of those investigations, six years after the Constitutional Court judgment?

How can South African authorities prosecute alleged crimes committed in Zimbabwe?

The short answer is that they can use the principle of universal jurisdiction which allows states to prosecute certain international crimes such as war crimes, crimes against humanity or torture without having a link of territoriality or nationality to the country where the alleged crime occurred.

States have interpreted this principle in different ways. While South African legislation adopted an approach which requires accused persons to be in the country, other countries such as Germany have adopted a broad interpretation of this principle without any pre-conditions.

On this basis, the German trial against two former Syrian Security Members for crimes against humanity committed against Syrians in Syria commenced at the end of April in Koblenz, Germany. The principle of universal jurisdiction is a key element in order to bring these kinds of cases before domestic courts outside the state where the alleged crime occurred. However, even if domestic law allows the initiation of such processes, cases from the past show that there is an intrinsic inertia of state authorities to act.

Investigating Zimbabweans for crimes committed against Zimbabweans in Zimbabwe

In the Torture Docket case, the Southern Africa Litigation Centre (SALC) challenged a decision by the SAPS and the NPA not to investigate crimes against humanity of torture that had allegedly been committed in Zimbabwe. Under the International Criminal Court Act, South African authorities may prosecute individuals for crimes committed outside South Africa if the accused person is present in the territory.

Yet from a legal perspective, the stage of prosecution and investigation differ substantially. This raises a major question, relating to the Torture Docket case, of how to apply the principle of universal jurisdiction in the stage of investigation.

In a landmark decision, the Constitutional Court held that the SAPS and NPA have a duty to investigate torture as a crime against humanity based on the principle of universal jurisdiction. The court, however, set up pre-conditions that must be met in such a case: (i) that the country where the alleged crimes occurred is unable or unwilling to prosecute; and (ii) that there must be an “anticipated presence” of the suspect in South Africa.

Where do we stand after six years of investigations?

While cases such as the Torture Docket case constitute significant steps in the fight against impunity, the obvious question is: What progress has been made after six years? Today, SAPS are still investigating the alleged cases of torture in Zimbabwe from 2007, even though the Constitutional Court emphasised the importance of time in its judgment:

There has already been an inordinate delay in this matter, in large parts due to the tardiness on the part of the NPA and the SAPS in processing the request (…) An expedited investigation is of paramount importance as the unearthing of evidence may become more difficult with time. Constitutional obligations must in any event be performed diligently and with undue delay.”

Acknowledging that the prosecution of international crimes might take longer than ordinary cases due to the massive amounts of evidence, six years of investigations hardly constitutes an “expedited investigation”. The lethargy which SAPS has displayed in this investigation is disappointing.

The tardiness of the NPA should, however, also not surprise us. Twenty years ago, the Truth and Reconciliation Commission submitted more than 300 cases of alleged apartheid-era crimes for further investigation to the NPA. Even though some of these cases may qualify as torture or crimes against humanity, victims, relatives and friends are still waiting for prosecutions to be initiated. The apartheid-era cases demonstrate that disappearing evidence constitutes a serious threat to any prosecution and search for justice.

Although the national director of public prosecutions, Shamila Batohi, stated in November 2019 that the NPA would consider how to “utilise the legal framework to be more creative in even perhaps charging apartheid as crime against humanity”, it remains to be seen whether the NPA is serious about prosecuting international crimes such as the Torture Docket or apartheid-era crimes. There is no question that the Constitutional Court judgment was a good starting point, but the reality six years later suggests that we are still at the same point.

Leading to places where traditional state authorities would otherwise not go

Cases such as the Torture Docket case or the recent trial in Germany for alleged crimes against humanity in Syria underline the importance of civil society and survivors in the process of building those cases.

As SALC pushed for an investigation of crimes against humanity in Zimbabwe in the Torture Docket case, the commencement of the trial in Germany can be attributed, to a large extent, to the research and analysis of the European Centre for Constitutional and Human Rights. These cases highlight that the principle of universal jurisdiction has become a useful tool to hold perpetrators of international crimes to account.

In the interest of seeking truth and justice, these types of cases send the clear message that there is no safe haven for perpetrators of international crimes. When such atrocities occur, they do not only shake the consciousness of the people of Syria or Zimbabwe, but the consciousness of humanity.

On this basis, there can be no exclusive jurisdiction by one state to prosecute, but a universal jurisdiction of any willing state.

Atilla Kisla is a senior researcher for the Southern Africa Litigation Centre’s International Criminal Justice Programme

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