20120509
AP
A South African judge on Tuesday ordered prosecutors to investigate whether Zimbabwean President Robert Mugabe's government committed human rights abuses, saying it would benefit Zimbabweans tortured in their homeland and South Africans determined to see their own government live up to its international responsibilities.
The ruling by High Court Judge Hans Fabricius is the first under 2002 statutes spelling out South Africa's international law obligations, and a significant step for Africa.
While the order is important, legal wrangles could derail an investigation. And if it did go ahead it could complicate South Africa's role as the main mediator in Zimbabwe's political crisis.
Human rights lawyer Nicole Fritz, whose Southern Africa Litigation Center joined the Zimbabwean Exiles forum to bring the suit, said human rights groups have documented cases of torture and other crimes in Zimbabwe.
"These crimes of the worst type are the responsibility of all the international community," Fritz said.
Fabricius' order, she said, allows South Africa's strong judicial system to hold Zimbabwean officials responsible for crimes allegedly committed ahead of violent and inconclusive 2008 elections. In the courts in Zimbabwe, opponents of Mugabe are more likely to face charges than his supporters.
Refugees fleeing Zimbabwe's political violence and economic chaos have come to neighboring South Africa by the thousands. Zimbabwean officials implicated in abuses also come to South Africa on official and personal business, Fritz said.
National Prosecuting Authority spokesman Mthunzi Mhaga said prosecutors will study the ruling and decide what legal steps to take.
"There may be an appeal," said James Gathii, co-chairman of the Africa interest group of the American Society of International Law. "But I think that more likely than not the NPA and police will have to take a closer look at the case."
"It's really impressive what the Southern African Litigation Centre has done," said Gathii, who also teaches at Albany Law School in New York. He said the South Africa ruling resulted from a new maturity civil and human rights groups are developing across Africa as they use international law to tackle abuses on the continent, and that he expected the trend to grow.
Zimbabwe has been governed by a shaky coalition of Mugabe's ZANU-PF and Prime Minister Morgan Tsvangirai's Movement for Democratic Change since 2008. Mugabe, who has led Zimbabwe since independence from Britain in 1980, and his ZANU-PF party are accused of using violence and intimidation to hold onto power.
Luke Tamborinyoka, Tsvangirai's spokesman, welcomed the ruling in Harare.
"It's high time perpetrators of violence were brought to book," Tamborinyoka said. "It is also in the interest of the South African government to make an inquiry on the violence in Zimbabwe, not just because of a court ruling but so that they will get to know the extent of violence in this country."
Repeated attempts to reach ZANU-PF officials were unsuccessful.
In 2008, the two rights groups asked South African police and prosecutors to investigate events that occurred the previous year, when police stormed the MDC's offices in Zimbabwe's capital and arrested Tsvangirai. Those taken away described being tortured and assaulted by Zimbabwean police as part of a widespread campaign of violence against the MDC. The rights activists have said high level officials and ministers are implicated, but not Mugabe himself. They have refused to name the officials, saying that might make further investigation and possible arrests more difficult.
South African police and prosecutors refused to investigate in 2008, citing the difficulty and possible political repercussions and saying the law was unclear.
In his ruling Tuesday, Fabricius said that refusal was "unlawful, inconsistent with the constitution, and therefore invalid."
The judge added that an investigation is in the interests of "the victims of the torture who had been denied the opportunity to see justice done, and the general South African public who deserve to be served by a public administration that abides by its national and international obligations."
South Africa's 1996 constitution calls on the state to respect and protect the right to life and dignity and freedom of association. The South African parliament in 2002 passed the International Criminal Court Act to comply with the global treaty that created the court, known as the ICC. South African law provides for the prosecution in South African courts of people accused of committing genocide, crimes against humanity and war crimes, whether they were committed in or outside South Africa. Foreign suspects can be arrested and prosecuted if they should come to South Africa.
Alan Wallis, an international criminal justice expert with the Southern Africa Litigation Center, said only a few other African countries have woven the International Criminal Court provisions into domestic law, and none of the others has seen it tested in this way.
Gathii said a recent case decided by a Kenyan court was similar, but that stemmed from an International Criminal Court warrant against Sudan's leader, and did not envision investigations by Kenyan officials or possible trials in Kenya.
The South African ruling is "pushing the Kenyan case even a huge step forward," Gathii said.
In Canada in 2009, a Rwandan man was found guilty of war crimes during his country's 1994 genocide under a Canadian law that allows residents there to be tried for crimes committed abroad.
South Africa has led regional efforts to get Zimbabwe's political rivals to draft a new constitution and take other steps to ensure the next elections are peaceful. The 88-year-old Mugabe is pushing for elections this year, though few observers think a vote this year could be free or fair. Mugabe has been nominated as his party's sole presidential candidate.
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