Police appeal against order
to investigate Zimbabwe crimes
by Ernest Mabuza, February 10 2014, 21:10
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THE South African Police Service has asked the Constitutional Court to
set aside a Supreme Court of Appeal order that international and domestic
legislation compelled it to investigate alleged crimes against humanity in
Zimbabwe.
The case started in 2008 when the Southern Africa Litigation Centre and
the Zimbabwe Exiles Forum sent a docket to the priority crimes litigation unit
of the National Prosecuting Authority (NPA). It documented acts of torture
allegedly committed after a raid by Zimbabwean police on the headquarters of
the opposition Movement for Democratic Change.
The centre and the forum wanted South African authorities to arrest the
Zimbabwean officials identified in the docket, but the NPA and the police
refused, saying it was impossible or impractical to investigate crimes
committed in Zimbabwe.
Last year the court of appeal upheld an earlier high court ruling that
South Africa, as a signatory to the Rome Statute of the International Criminal
Court, had a duty to investigate the allegations. The statute is a treaty that
established the court, which investigates and prosecutes four core
international crimes: genocide, crimes against humanity, war crimes and the
crime of aggression.
In its application for leave to appeal last month, the police said the
statute did not create universal jurisdiction and was not binding to non-member
states such as Zimbabwe.
"At most the statute creates a network extending between its member
states," said Jakobus Meier, an attorney at the office of the state attorney,
who represents national police commissioner Riah Phiyega. "The statute can
do no more than bind its member states.
"Crucially, it does not purport to authorise interference with the
sovereignty of non-members."
Mr Meier said South Africa’s Implementation of the Rome Statute of the
International Criminal Act, which was passed in 2002, should be interpreted to
give effect to the statute’s concern and respect for the sovereignty of
countries. "Indeed, the express wording of the Act makes this sufficiently
clear.
"Nowhere in the act is a duty created to prosecute subjects of
non-member states."
The Southern Africa Litigation Centre and the Zimbabwe Exiles Forum have
indicated they would oppose the application.
