LHR welcomes ConCourt judgment

2014-10-30 15:59
The Constitutional Court (File: Sapa)

The Constitutional Court (File: Sapa)

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Johannesburg - Lawyers for Human Rights (LHR) welcomed the Constitutional Court's order on Thursday that South African police investigate claims of torture against senior Zimbabwean officials.

"We are quite happy that the Constitutional Court has come out so strongly in favour of full implementation of South Africa's Rome Statute Act," LHR co-ordinator David Cote said in a statement.

"Universal jurisdiction against the most abominable crimes is a world-wide movement and an important step against impunity."

South Africa is party to the International Criminal Court's (ICC) Rome Statute. It enacted the Implementation of the Rome Statute of the International Criminal Court Act (the ICC Act) in 2002.

In a unanimous judgment by the court, delivered by acting Justice Stevan Majiedt, the court concluded that police must investigate the claims because it had a duty to do so, under the Constitution, the ICC Act, and South Africa's international law obligation.

The court held that the duty to investigate international crimes was limited to instances where the country in which the crimes happened was unwilling or unable to investigate and if, on the facts and circumstances of the particular case, an investigation would be reasonable and practicable.

The court found no evidence that Zimbabwean authorities were willing or able to pursue an investigation and that it would be reasonable and practicable for the SAPS to investigate the complaint because of the proximity between South Africa and Zimbabwe.

It said there was a likelihood that the accused would be in South Africa at some point. There was a reasonable possibility that the SA Police Service would be able to gather evidence that may satisfy the elements of the crime of torture.

A police raid

The court held that while the principle of non-intervention in another state's territory had to observed, this would not be violated by an investigation conducted exclusively within South Africa.

The case was first brought by the Southern Africa Litigation Centre and the Zimbabwean Exiles Forum in 2008 following a police raid on the headquarters of the Movement for Democratic Change the year before.

They argued that South Africa had domestic and international legal obligations to investigate and prosecute high-level Zimbabwean officials accused of crimes against humanity.

The two bodies handed over a dossier of evidence to the National Prosecuting Authority (NPA) and the police, which allegedly pointed to torture in Zimbabwe sanctioned by that state.

In 2012, the North Gauteng High Court in Pretoria held that South African authorities had not acted in accordance with their obligations, and that the decision not to probe the matter had been taken unlawfully and unconstitutionally.

The NPA and police appealed to the Supreme Court of Appeal (SCA) in November last year.

The SCA held that police, in particular, were empowered and required to investigate the crimes against humanity, as detailed in the dossier.

The national police commissioner then appealed to the Constitutional Court.

Read more on:    police  |  mdc  |  pretoria  |  zimbabwe  |  southern africa

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