THE South African Police Service (Saps) has lodged an appeal at South Africa’s Constitutional Court against that country’s Supreme Court ruling compelling them to investigate and possibly arrest Zimbabwean government and Zanu PF officials for crimes against humanity allegedly committed in Zimbabwe in 2007.
By Herbert Moyo
Court documents in the possession of the Zimbabwe Independent show that attorneys of the High Court in Pretoria, South Africa, served appeal papers on Monday to the Southern Africa Litigation Centre (Salc) and the Zimbabwe Exiles Forum (Zef) — the two organisations which successfully sought a Supreme Court of Appeal order to compel Saps to investigate Zimbabwean officials for torturing MDC-T members.
The allegations relate to an incident on March 28 2007, when Zimbabwean police are said to have tortured members of Morgan Tsvangirai’s MDC-T and this was recorded in a docket presented to the South African authorities by Salc and Zef who requested that the incident be investigated with the aim of prosecuting top government, military and Zanu PF officials in the South African courts.
According to Salc and Zef, “Their purpose (Zimbabwean police) is said to have been to suppress the political opponents of the Zanu PF ruling party.”
However, despite losing the case, Saps believe there “is at least a reasonable prospect” that the Constitutional Court could overturn the Supreme Court ruling that was handed down last year on November 27, arguing among other things that investigating was not obligatory and would infringe on the sovereignty of Zimbabwe and also damage diplomatic relations.
“This question is of profound significance for Saps and of general public importance,” wrote Saps’ attorney Jakobus Meier in the appeal papers.
“Moreover, there is at least a reasonable prospect that this court may reach a different conclusion from the court a quo.”
Meier further stated Saps declined to investigate the matter after “considerable reflection which took into account not only the analysis of the senior superintendent, but also counsel’s opinion and academic publications”, arguing that South Africa has no obligation to investigate crimes in countries which are not party to the Rome Statute which set up the International Criminal Court (ICC).
“Zimbabwe is not a party to the Rome Statute; its sovereignty is not affected by the Rome Statute” and in the absence of “authorisation by the UN Security Council, the ICC does not have jurisdiction over Zimbabwe, and nor does any court and by necessary implication, investigators and prosecutors of a state party to the Rome Statute”.
Saps also felt that the investigation, especially of Zimbabwean police officers, would frustrate existing and on-going criminal investigations, inter-country police co-operation and international relations.