Speaking Out

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Fri Mar 30, 2012

Betsy Apple Speaking Out: The Controversy Continues in North Gauteng High Court

By Betsy Apple

Photo: Christine Jesseman  
  More protests demanding action
  by South African prosecutors.

The hearing in which the Southern African Litigation Centre (SALC) and the Zimbabwean Exiles Forum (ZEF) seek to compel South Africa’s prosecutors to investigate and possibly bring to trial high-level supporters of Robert Mugabe accused of torture continued on Wednesday, and so did the controversy. As described earlier, SALC and ZEF submitted a dossier to the National Prosecuting Authority (NPA), asking them to look into the torture allegations; the NPA refused, and SALC and ZEF went to court. The outcome of this case—which will determine whether South African prosecutors can and should investigate crimes against humanity in Zimbabwe—affects women from Zimbabwe who survived mass rape and seek justice.

Fissures in the NPA widened during the hearing as the state prosecutor, Chris Macadam, and the head of the unit in charge of investigating international crimes, Anton Ackermann, traded accusations. Ackermann claimed he had been silenced and lied to as he sought to pressure the police into investigating the allegations of torture contained in the dossier compiled by SALC and ZEF. Macadam, in turn, argued that Ackermann initially agreed with the decision not to investigate torture, but ended up “colluding” with SALC after extensively discussing the case with them.

Counsel for the South African police (the entity responsible for conducting the actual investigation into torture) argued that the police lacked jurisdiction in this case. SALC and ZEF counsel disagreed, claiming not only that the police lawfully could have investigated, but also that their failure to do so was for political (rather than legal) reasons. The police lawyer seemed to support this assertion, arguing that if the police had investigated, it would sour political relations between South Africa and Zimbabwe. To his credit, the High Court judge asked the critical question in response: Are "diplomatic concerns more important than human concerns?"

That Ackermann, a respondent in the case, filed an affidavit supporting the SALC/ZEF position demonstrates his integrity and independence, but may not bode well for his career at the NPA. The NPA claimed they were still considering the implications of his affidavit.

The High Court judge is contemplating his ruling on the case. Once he issues a judgment, we should know whether the NPA failed to undertake its responsibilities under the South African ICC law, and whether the door is open for other survivors of mass crimes, including mass rape, to seek justice in South Africa.