Will this week's landmark SA ruling be honoured?

Human rights campaigners, along with anyone interested in fate of the rule of law in the region have been dancing a bit of a victory tango this week, after a landmark ruling in the North Gauteng High Court on Tuesday. It's a ruling that has such significance right now, with so much of the world's media attention focusing on international criminal justice, and I am so proud that this ruling has come from SA.

Here's my article on the ruling this week if you don't know what I'm talking about :

http://www.swradioafrica.com/2012/05/08/sa-ordered-to-probe-zim-torture-in-landmark-ruling/

SA ordered to probe Zim torture in landmark ruling

Posted by Alex Bell on Tuesday, May 8, 2012 in Human Rights, Judiciary, South Africa, Torture,Zimbabwe politics | 0 comments

Nicole Fritz, Executive Director of the Southern Africa Litigation Centre

By Alex Bell
08 May 2012

South African authorities have been ordered to investigate state-sanctioned torture and other crimes against humanity at the hands of Zimbabwean officials in 2007, in what is being called a ‘landmark’ ruling for local and international justice.

The ruling Tuesday is the result of a case launched in March by the Southern Africa Litigation Centre (SALC) and the Zimbabwe Exiles Forum. The two groups had asked the High Court to review and set aside a decision made by South Africa’s National Prosecuting Authority (NPA) and the police not to investigate Zimbabwean officials linked to acts of state-sanctioned torture.

Their case was based on a dossier detailing the attack on MDC members in 2007, which was handed to the NPA in 2008. But a formal investigation was never launched.

The court challenge in March argued that South Africa does have a legal obligation to investigate these crimes, because it is a signatory to the Rome Statute. The legal team representing SALC and the Exiles Forum argued that the NPA and the police had failed in their duties by not instituting an investigation, because Zimbabwean victims have no way to get justice back home.

Judge Hans Fabricius ruled on Tuesday that the NPA and the South African police had acted unconstitutionally and unlawfully by not investigating the case originally. His judgment also underlined South Africa’s obligations under international law.

“This judgment will send a shiver down the spines of Zimbabwean officials who believed that they would never be held to account for their crimes but now face investigation by the South African authorities,” said Nicole Fritz, Executive Director of SALC.

Fritz told SW Radio Africa on Tuesday that the judgement sets an important precedent by ruling that South African authorities have a duty to investigate international crimes wherever they take place. She called this a “major step forward for international criminal justice.” She also explained that the ruling is also a landmark, particularly for Zimbabweans, “because Zimbabwe continues to be mired in crisis and there is no feasible prospect that there will be any attempt to hold people to account for their crimes.”

“This ruling in South Africa means that those who enjoy impunity in Zimbabwe, their impunity ends at the border,” Fritz said.

Fritz explained that there is no word yet if the South African authorities will appeal the ruling. She said that if they don’t then a very serious investigation will soon be launched.

“If there is no appeal then we are looking forward to a credible, serious investigation that we believe will result in prosecution,” Fritz said.

The Exiles Forum’s Gabriel Shumba, who is himself a torture survivor, said the court ruling is a “moral victory on behalf of torture survivors.”

“We are ecstatic about this decision, which shrinks further the borders of impunity for crimes against humanity not only in Zimbabwe, but on the continent. This judgment sends a message that those who have previously and presently committed crimes against humanity with impunity will be brought to book,” Shumba said.

It's not at all surprising that ZANU PF has since dismissed this ruling, calling it "irrelevant" and a "sad day" for South Africa's judicial system. The reaction can only be compared to that of a spiteful, spoiled teenager who knows that are soon to be caught out.

But the question being raised now is: Will the ruling be honoured and what will this mean for SA, Zim relations? Let's not forget that South Africa remains the political mediator in Zimbabwe's political crisis, and while this case rested largely on the failure to separate politics and South Africa's legal obligations, do we really believe such a ruling WON'T affect relations between the country's political heads?

South Africa's judiciary has proved something crucial this week and there is pride, and hope that the country is once again the shining beacon of how things SHOULD be in Southern Africa. Naturally, the ruling is likely to be appealed, so we can only speculate about what happens next.

But let's hope it is the start of real respect for rule of law across the region.

AB