Court hear­ing on Zim ‘tor­ture vic­tims’

Weekend Argus (Saturday Edition) - - NEWS - CARMEL RICKARD

VIC­TIMS of tor­ture in Zim­babwe found it of­fen­sive that per­pe­tra­tors could visit South Africa on shop­ping trips, and never face any le­gal ac­tion.

Mak­ing this sub­mis­sion to the Supreme Court of Ap­peal in Bloem­fontein yes­ter­day, Wim Tren­gove SC said it was im­por­tant the South African au­thor­i­ties played their part in en­sur­ing there was no im­punity for crimes against hu­man­ity, such as sys­temic tor­ture.

Tren­gove was ap­pear­ing in an ap­peal about the du­ties of the South African po­lice and prose­cu­tion ser­vices to in­ves­ti­gate claims of crimes against hu­man­ity and, where war­ranted, charge those in­volved.

The case arose in March 2007 when more than 100 peo­ple were rounded up by Zim­babwe po­lice at the head­quar­ters of the of­fi­cial op­po­si­tion Move­ment for Demo­cratic Change in Harare. They were held for sev­eral days and, they claim, they were “con­tin­u­ously and se­verely tor­tured”.

The South­ern Africa Lit­i­ga­tion Cen­tre then be­came in­volved in col­lect­ing af­fi­davits from those who said they were tor­tured, and from doc­tors who ex­am­ined them.

On the ba­sis of this “tor­ture dossier”, the cen­tre asked the South African au­thor­i­ties to in­ves­ti­gate. When they re­fused, the cen­tre went to court.

A va­ri­ety of rea­sons were given for re­fus­ing.

The po­lice said any in­vesti- gation would be seen as sanc­tioned by the South African gov­ern­ment, and so a de­ci­sion to in­ves­ti­gate could “for ob­vi­ous rea­sons” not be taken “in iso­la­tion”.

An in­ves­ti­ga­tion would “com­pro­mise diplo­matic ini­tia­tives in Zim­babwe”, and would make things dif­fi­cult for the South African Po­lice Ser­vices when it took over the lead­er­ship of the South­ern African Re­gional Po­lice Chiefs Co-op­er­a­tion Or­gan­i­sa­tion.

Dur­ing May last year Judge Hans Fabri­cius found in favour of a joint chal­lenge to this de­ci­sion by the po­lice and the prose­cu­tion ser­vice, brought by the cen­tre and the Zim­babwe Ex­iles Fo­rum. He said there was a duty in terms of South Africa’s in­ter­na­tional obli­ga­tions to in­ves­ti­gate al­le­ga­tions of se­ri­ous in­ter­na­tional crime. The re­fusal by the au­thor­i­ties to act was un­con­sti­tu­tional and invalid.

Dis­sat­is­fied with the out­come, the po­lice and prose­cu­tion ser­vices asked to ap­peal.

At the start of his sub­mis­sions yes­ter­day, Tren­gove said the cen­tre did not sug­gest that the SAPS “should do any­thing on Zimbabwean soil”.

“We are talk­ing about in­ves­ti­ga­tions here, in South Africa, on the ba­sis of ev­i­dence col­lected here.”

When the judges put it to Tren­gove that the po­lice and prose­cu­tion ob­jected to the “zeal­ous” at­ti­tude of po­ten­tial wit­nesses, Tren­gove said it was up to the po­lice to con­sider the ev­i­dence from wit­nesses and de­cide whether it was ad­e­quate.

He said the law on South Africa’s in­ter­na­tional du­ties obliged this coun­try to help in­ves­ti­gate in­ter­na­tional crimes, re­gard­less of whether they were ever ac­tu­ally pros­e­cuted in the lo­cal courts.

Ev­i­dence gath­ered in this way could be made avail­able to in­ter­na­tional investigators, and would also help dis­pel the im­pres­sion that such crimes could be com­mit­ted “with im­punity”.

Ear­lier, coun­sel for the po­lice ar­gued that the law prop­erly in­ter­preted meant that in the eyes of the South African au­thor­i­ties, an in­ter­na­tional crime was only “deemed” to have been com­mit­ted once the al­leged per­pe­tra­tor en­tered this coun­try. Un­til that time no ac­tion was re­quired by South Africa, and no in­ves­ti­ga­tion could be be­gun.

“The of­fender must be phys­i­cally present (in South Africa) af­ter hav­ing com­mit­ted the of­fence” for an in­ves­ti­ga­tion to be trig­gered.

Re­fer­ring to this sub­mis­sion, Tren­gove said later it would be ab­surd for the law to say that “if you are here in (South Africa) on a shop­ping trip you are an in­ter­na­tional crim­i­nal. But when you leave tomorrow you are not”.

Judg­ment has re­served.



TOR­TURE CLAIMS: Mor­gan Ts­van­gi­rai, MDC leader, and other ac­tivists out­side court in Harare, Zim­babwe, in March 2007. They were taken to hos­pi­tal for in­juries, al­legedly from po­lice tor­ture, two days af­ter they were ar­rested for try­ing to at­tend an op­po­si­tion meet­ing.

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