The Duty of National Authorities to Investigate Allegations of Torture

Andrew Wheelhouse - 8th December 2014

Proponents of universal jurisdiction for international crimes will be gratified by the judgment of the Constitutional Court of South Africa in the case of National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another which was handed down on 30 October.

The case concerned allegations that the Zimbabwean Police tortured a number of detained persons following a raid on the headquarters of the opposition Movement for Democratic Change in Harare in March 2007. The raid allegedly occurred under the instructions of the ruling ZANU-PF party of President Robert Mugabe.

SALC and the Zimbabwe Exiles’ Forum compiled a dossier, which included sworn statements alleging acts of torture such as beatings with baseball bats and iron bars, waterboarding, mock executions and electrocution of the genitals of detainees. This was passed onto the National Prosecuting Authority and the South African Police Service (SAPS) in March 2008.

After much delay the National Director of Public Prosecutions eventually refused to initiate an investigation in June 2009 on the curious basis that the matter had been inadequately investigated and that further investigations would be difficult.

SALC and the ZEF turned to litigation, seeking to have the refusal to investigate set aside. The lower courts uniformly found in their favour. By the time the matter reached the Constitutional Court it had sparked huge interest, with no fewer than nine amici curiae piling into court to weigh in on the side of the NGOs.

The question before the court was whether “in the light of South Africa’s international and domestic law obligations, the SAPS has a duty to investigate crimes against humanity committed beyond our borders”.

In a unanimous judgment penned by Majeidt AJ, the court ruled that there was a duty to investigate and dismissed the appeal by the SAPS. The Court held that the starting point is the Constitution, which provides for the incorporation of international agreements into South African law by legislation (section 231) and which makes customary international law part of South African law except where inconsistent with the constitution or primary legislation (section 232). Accordingly, the Rome Statute and the Torture Convention became part of South African law when they were incorporated through the ‘ICC Act’ 2002 and the ‘Torture Act’ 2013 respectively.

The Court then moved onto the question of presence. It was argued by the SAPS that presence of a suspect was required in South Africa before an investigation could commence. In rejecting this, Majeidt AJ adopted the comparative analysis of the Supreme Court of Appeal below and held that while presence may be needed for prosecution to commence, it is not required to launch an investigation. It was noted that requiring presence would rob the ICC framework of its efficacy (the suspects include Zimbabwean cabinet ministers and senior civil servants who, it was intimated at the hearing, periodically visit South Africa for shopping and other activities).

In light of this there was a duty on the SAPS to investigate international crimes, limited by the principles of subsidiarity (not relevant here as the Zimbabwean Police have not shown any interest in investigating the allegations and are unlikely to do so any time soon) and practicability (not relevant here for a number of reasons, not least the proximity of South Africa to Zimbabwe and the fact that SALC had done the “initial spadework” to make further investigation viable). The court was particularly unimpressed with the argument advanced by SAPS that political relations between South Africa and Zimbabwe would be damaged, noting that interstate tensions were the unavoidable consequence of universality:

 “The cornerstone of the universality principle, in general, and the Rome Statute, in particular, is to hold torturers, genocidaires, pirates and their ilk, the so-called hostis humani generis, the enemy of all mankind, accountable for their crimes, wherever they may have committed them or wherever they may be domiciled.”

The premium that the South African legal system places on conforming with international law certainly assisted the Constitutional Court in deftly negotiating the obstacles that were placed in its way by counsel for the SAPS. By speaking with a unanimous voice the justices were able to hand down a powerful judgment that also has the benefit of according with common sense. However, it remains to be seen whether the ordered investigation bears fruit. It could well be years before the alleged perpetrators stand trial, if any do at all.

Author profile

Andrew Wheelhouse was called to the Bar Of England & Wales at Middle Temple in 2013. Between January and July 2014 he served as a Foreign Law Clerk to Justices Skweyiya and Madlanga at the Constitutional Court of South Africa. He writes here solely in a personal capacity.

Citations

Andrew Wheelhouse, “The Duty of National Authorities to Investigate Allegations of Torture” (OxHRH Blog, 8 December 2014) http://humanrights.dev3.oneltd.eu/?p=15111

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