Zimbabwe Watch

SA government in the dock on Zimbabwe

Constitutional Court.jpg

In two recent court rulings the Constitutional Court in South Africa ruled in favour of justice in Zimbabwe. The question now is whether the South African government will act in support thereof.

The cost of former President Thabo Mbeki’s policy of appeasement, better known as “quiet diplomacy”, towards Zimbabwe’s President Robert Mugabe, keeps rising.

President Mbeki’s persistence to persevere with his policy of quiet diplomacy, notwithstanding growing evidence that it had very little, if any, effect on the Mugabe regime, seriously damaged not only the South African government’s but also his own reputation as a credible and honest broker in interstate affairs.

The magnitude of the damage caused by this approach was once again confirmed with there lease of the Khampepe Report, reported on last week.

The fact that President Mbeki, his successor President Motlanthe and the current Zuma administration have tried for 12 years to prevent the publication of the report at all costs, is a striking example of blatant betrayal and a cover-up by the SA government.

The Khampepe Report chronicled many transgressions which involved the well- planned and -executed intimidation, including murder, of the opposition by the Mugabe regime in the run-up to, as well as during and after the 2002 presidential election.

The SA government under President Mbeki preferred to ignore the truth and recognised a fraudulent election as “free and fair”, while other officially sanctioned reports on the election confirmed the findings of the Khampepe Report.

It took a judgement of the Constitutional Court for the SA government to release the Khampepe Report. With the contents now in the public domain, the report not only embarrassed, but laid bare the hypocrisy and duplicity displayed by the South African government.

The Khampepe Report is not the only embarrassment inflicted in quick succession on the South African government by the country’s highest court.

Less than a month realier the Constitutional Court also, in a far less publicised but nevertheless landmark decision, found that the South African Police Service (SAPS) had to investigate allegations of torture in Zimbabwe.

In response to allegations of torture in Zimbabwe by that country’s police during the 2007 national election the Southern African Litigation Centre (SALC), in co-operation with the Zimbabwe Exiles Forum, approached the SAPS to investigate the allegations.
With no response from the SAPS forthcoming, the court was asked to intervene. And when the court ordered the SAPS to investigate the allegations, the SAPS adopted a tactic similar to the one regarding the Khampepe Report.

The SAPS continued to appeal, until the Constitutional Court on 30 October 2014 unanimously ruled that all previous court rulings were correct and that the SAPS was obliged to investigate the torture allegations.

Failure by the SAPS to comply with the Constitutional Court’s ruling would be a serious transgression and would constitute a violation of South Africa’s obligations under both domestic and international law to investigate a case which could be considered a crime against humanity.

Asking South African courts for a ruling on torture allegations by the Mugabe regime is a landmark event, being the first of its kind to be brought in terms of the South African International Criminal Court (ICC) Act.

Signatory to the Rome Statute, the international agreement that set up the ICC, South Africa is obliged to ensure that perpetrators of crimes against humanity and similar crimes must be brought to justice irrespective of where it occurred.

It remains to be seen if anything will come of the ruling by the Constitutional Court.
Facing a myriad of its own seemingly insurmountable problems and challenges, it is difficult to imagine the SAPS listing accusations of torture by the Mugabe regime as a priority, notwithstanding the Constitutional Court’s ruling and South Africa’s obligation under the Rome Statute.

It is not only a matter of capacity, which is in short supply, to investigate such a complex case, but there is also the cost factor. Past examples have shown that similar cases have been notoriously complex, slow and expensive, with a slim chance of success.

But most importantly, the question that needs to be answered is whether the political will exists to execute the court ruling. An effective investigation of this nature requires serious political will and many commentators agree this simply does not exist.

With the Zuma administration preferring, in general, a policy of non-interference in the internal affairs of other countries and with South Africa’s relations with Zimbabwe still defined by the so-called quiet diplomacy, it is most unlikely that much pressure, if any, will be placed on the SAPS.

The ruling of the Constitutional Court presented the South African government with a rare opportunity to regain some of the moral leadership lost by persisting with a policy long after it has proved its ineffectiveness.

Writing in Daily Maverick Simon Allison comes to the conclusion that, “Perhaps the most significant practical outcome is that the decision (by the Constitutional Court) establishes South Africa as hostile territory for perpetrators of crimes against humanity, genocide and war crimes. Regardless of the executive’s approach, South African courts have proved that they can and will live up to their responsibilities in this regard ...”

In the two cases regarding Zimbabwe, the courts in South Africa have ruled in favour of justice. Now it is for the South African government to show courage and political will in the name of justice for the long-suffering people in that country.

by Garth Cilliers

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