In a landmark judgment on May 8, South Africa’s North Gauteng High Court ordered South African authorities to investigate Zimbabwean officials accused of human rights abuses.
Judge Hans Fabricius ruled that the National Prosecuting Authority and South African Police Services had acted unconstitutionally under international law by not taking forward the original investigation when Zimbabwean officials accused of war crimes travelled to South Africa.
The case was brought to the Pretoria court by the Southern African Litigation Centre (SALC) and the Zimbabwean Exiles Forum, many of whose members previously fled to South Africa after allegedly being tortured by Zimbabwean security. Torture is a norm of Jus Cogens status, a crime of universal jurisdiction - so abhorrent that it is capable of being tried anywhere in the world and South Africa’s recognition of the International Criminal Court further obliges it to act on accusations of crimes against humanity.
“This judgment will send a shiver down the spines of Zimbabwean officials who believed that they would never be held to account for their crimes”, Nicole Fritz, Executive Director of the Southern African Litigation Centre told the court.
“This decision is not just about Zimbabwe – it also sets a much broader precedent by ruling that South African authorities have a duty to investigate international crimes wherever they take place. It’s a major step forward for international criminal justice.”
The ruling, however, has unsurprisingly split opinion in Zimbabwe with members of the Movement for Democratic Change (MDC-T) largely praising the verdict, while those from the ZANU-PF party discredit it as irrelevant, illegitimate and politically-motivated.
The ruling centres around alleged human rights abuses in 2007. The headquarters of the MDC, the opposition party, was raided and scores of MDC supporters were allegedly tortured.
Morgan Tsvangirai, the leader of the MDC party, hailed the South African judgment. MDC spokesman and renowned human rights lawyer Douglas Mwonzora echoed Tsvangirai’s views. He explained to Think Africa Press: “Legally it is correct. Those who abuse human rights should know that they cannot get away with it, and South Africa by virtue of being a signatory to the various international statutes has a right to investigate human rights abuses and prosecute the violators.”
Chris Mhike, a based human rights lawyer based in Harare similarly insisted: “Any lawful effort aimed at addressing Zimbabwe’s long-running human rights deficit should be applauded. The judgment coming from the South African court is one such commendable development.”
A member of the MDC who claimed he was brutally beaten by ZANU-PF supporters and left for dead in 2008 called the High Court’s ruling “commendable”. He continued: “South Africa has shown us that it has a robust justice system which other African countries must emulate. It might take a long time before ZANU-PF torturers are brought to justice but sooner or later they are going to face the music. This ruling by the South African court is the first step.”
While those from the MDC, alongside ordinary Zimbabweans who have suffered brutality at the hands of ZANU-PF militias, praised the ruling, Patrick Chinamasa, Zimbabwe’s Justice and Legal Affairs Minister and ZANU-PF supporter, dismissed the ruling as “irrelevant”.
“The ruling brings the African justice system into disrepute”, he said, “it is a sad moment for the justice system in South Africa”. Chinamasa further discredited the decision by announcing on state television that the decision was a “wish by a South African judge pushing an agenda of former Rhodesians”.
“These people are working in cahoots with the ex-Rhodies who brought a case against government on the land issue. They use the same source of funding to push a vendetta by white former colonial masters to cast Zimbabwe in the worst light to the world,” he said.
In spite of ZANU-PF’s cool exterior, it is clear that the party has been shaken by the decision in South Africa. Even if ZANU-PF protects the senior officials who took part in the human rights abuses, party members are worried that they might not be able to visit South Africa for medical or other reasons for fear of being arrested.
The ruling, the first of its kind, is also set to further strain the relationship between ZANU-PF and the South African government, which has been rocky since President Jacob Zuma of South Africa attempted to ease coalition tension back in 2010, and could severely complicate South Africa's role as an impartial mediator in Zimbabwe.
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