In the case of National Commissioner of the South African Police Service v. Southern African Human Rights Litigation Centre Trust (Torture Docket case), the South African Constitutional Court ruled that the South African Police Service (SAPS) and the National Prosecution Authority (NPA) have an obligation under international law to investigate and prosecute torture committed against Zimbabwean nationals in Zimbabwe.[1] It has been six years since the judgment. However, not a single perpetrator has been brought to account.
SOUTH AFRICA’S OBLIGATIONS UNDER INTERNATIONAL LAW
In March 2007, Zimbabwean police raided the main opposition party’s headquarters at Harvest House in Harare. During the raid, more than 100 people were taken into custody and tortured, including workers in nearby shops and offices. Thereafter, the Southern Africa Litigation Center (SALC) submitted a detailed dossier to the NPA. The dossier detailed that torture was committed in a widespread and systematic way in Zimbabwe, especially against political opponents of the ruling party, Zimbabwe African National Union–Patriotic Front (ZANU-PF). The SALC argued that South Africa has an obligation under its own domestic law to investigate torture committed in Zimbabwe, even if the perpetrators were not present in South Africa.
The Constitutional Court stated that under international law, South Africa has an obligation to investigate international crimes such as crimes against humanity, where torture is also defined. In addition to this, South Africa is a party to the Rome Statute, and has incorporated the provisions of said Statute into domestic law through the promulgation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act). The ICC Act puts a further obligation on South Africa to investigate these crimes.
The Court held that the principle of universal jurisdiction—which allows for the investigation and prosecution of international crimes by a state in certain circumstances, notwithstanding the absence of nationality or territorial jurisdiction—applied to the case. In order for South Africa to prosecute the crimes enumerated in the ICC Act, there are two conditions that need to be satisfied namely:
(i) the country where the alleged crimes occurred is unable or unwilling to prosecute such crimes; and
(ii) there must be an anticipated presence of the suspect in South Africa. The Court stressed that the presence of the alleged perpetrator in South Africa was not, however, a necessary precondition for investigation. It was held that:
The alleged acts of torture were perpetrated in Zimbabwe, by and against Zimbabwean nationals. None of the perpetrators is present in South Africa. However, the duty to combat torture travels beyond the borders of Zimbabwe…South Africa may, through universal jurisdiction, assert prescriptive and, to some degree, adjudicative jurisdiction by investigating the allegations of torture as a precursor to taking a possible next step against the alleged perpetrators such as a prosecution or an extradition request. The contention by the SAPS that it could not investigate without a suspect’s presence must therefore fail.
Despite the unambiguous finding of the Constitutional Court, to date, the impact of the Torture Docket case has not been felt. South Africa seems to have a history of failing to meet its obligations under international law. In 2015, South African authorities failed to arrest Omar al-Bashir despite receiving an arrest warrant from the International Criminal Court (ICC). The ICC later ruled that South Africa flouted its duties under the Rome Statute. In addition, Atilla Kisla, a senior researcher for the SALC’s International Criminal Justice Programme, points out that to date, the NPA has not prosecuted crimes against humanity committed during the Apartheid era, despite having cases submitted to it by the Truth and Reconciliation Commission. Although it can be acknowledged that investigating and prosecuting international crimes may take a long time, it is believed that South African authorities are dragging their feet on the Torture Docket case because of the tensions it might cause with Zimbabwe. This was alluded to in a letter written by the Acting National Commissioner of the SAPS, Tim Williams, in response to SALC’s request for prosecution, in which he stated that opening an investigation could have far-reaching implications for the SAPS and the country in general.[2]
CONTINUING IMPUNITY
The failure to expeditiously investigate and prosecute the perpetrators of torture in Zimbabwe has fuelled impunity. The victims of the assault on Harvest House 13 years ago are yet to receive justice. Apart from this, there are widespread reports of the systematic use of torture against citizens by the ruling party ZANU-PF. In 2008, Zimbabwean human rights activist Jestina Mukoko was abducted and tortured. In 2016 another activist, Ostallos Gift Siziba was also subjected to torture. Four years later, there were more abductions and tortures such as those of Joana Mamombe, Cecilia Chimbiri, and Netsai Marova, members of the main opposition party who were raped and tortured, only to be rearrested for allegedly lying about their ordeal. The persistence and brutality of these crimes displays the depths of depravity and impunity at which the perpetrators continue to operate. More recently, a youth activist, 22-year-old Tawanda Muchehiwa, was tortured so severely it caused permanent damage to his kidneys.
The statistics of torture and abductions in Zimbabwe are alarming, with reports that as of last year, 40 people were abducted by unknown armed men with masks, tortured, and later released or faced criminal charges to silence them. The UN has since called on Zimbabwe to end torture and abductions.
ACCOUNTABILITY
In instances of political torture, the perpetrator who commits the heinous crime often acts at the behest of, or within the knowledge of, an authority. Article 28 of the Rome Statute recognizes the complicity of the “puppet master” in the prosecution of crimes and states that the superior shall be held criminally responsible for crimes committed by a subordinate under his or her effective authority and control. The article has been interpreted in the case of The Prosecutor v. Jean-Pierre Bemba Gombo to mean that the superior can be held liable for the conduct of the subordinate in two ways, namely:
(i) where the superior fails to prevent the subordinate's crime even though he or she knew of the crime, the superior can be blamed for both, the criminal conduct of the subordinate and the wrongful consequence caused by it; and
(ii) the superior can only be blamed for his or her failure to exercise control properly, which resulted in a wrongful consequence, but not for the criminal conduct of the subordinate.[3]
Either way, it can be seen that where the superior fails to exercise control over the actions of the subordinate, he or she can be held liable. Therefore, to the extent that government officials, including officials within the Central Intelligence Organisation (CIO) and the Ministry of State Security, sanction torture or are deemed to sanction torture, such individuals may be personally prosecuted. The CIO, which is headed by Isaac Moyo, falls under the Ministry of State Security headed by Owen Ncube. Thus, if South Africa were to prosecute perpetrators of torture, the buck would stop with Isaac Moyo and Owen Ncube, as the ICC allows for the prosecution of those who bear superior responsibility.
To date, not a single perpetrator of torture has been arrested by the Zimbabwean police and brought before the Zimbabwean courts, despite there being compelling evidence. This clearly shows that Zimbabwe is unable or unwilling to prosecute these crimes, which satisfies the first condition for the SAPS and the NPA to investigate and prosecute the torture of Zimbabweans. Secondly, although the perpetrators may not be present in South Africa, the Constitutional Court ruled that the SAPS were obligated to investigate the alleged crimes in any event, and that the presence of the perpetrators would only be required if and when prosecution is initiated. South Africa’s failure to act in this regard is a woeful neglect of its duties under international and domestic law.
[1] National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre and Another (CCT 02/14) [2014] ZACC 30; 2015 (1) SA 315 (CC); 2015 (1) SACR 255 (CC); 2014 (12) BCLR 1428 (CC) (30 October 2014)
[2] National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre and Another, pg. 11, para 15.
[3] The Prosecutor v. Jean-Pierre Bemba Gombo. Pre-Trial Chamber II, No.: ICC‐01/05‐01/08, 20 April 2009
Nigel has an LLB in International Law from Near East University (Cyprus). Currently, he is a member of an NGO called VOIS Cyprus which advocates for the rights of international students in Cyprus.