JOHANESBURG — THE South African Police Service has asked the Constitutional Court to set aside a Supreme Court of Appeal order that international and domestic legislation compelled it to investigate alleged crimes against humanity in Zimbabwe.
The case started in 2008 when the Southern Africa Litigation Centre and the Zimbabwe Exiles Forum sent a docket to the priority crimes litigation unit of the National Prosecuting Authority (NPA). It documented acts of torture allegedly committed after a raid by Zimbabwean police on the headquarters of the opposition Movement for Democratic Change.
The centre and the forum wanted South African authorities to arrest the Zimbabwean officials identified in the docket, but the NPA and the police refused, saying it was impossible or impractical to investigate crimes committed in Zimbabwe.
Last year the court of appeal upheld an earlier high court ruling that South Africa, as a signatory to the Rome Statute of the International Criminal Court, had a duty to investigate the allegations. The statute is a treaty that established the court, which investigates and prosecutes four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression.
In its application for leave to appeal last month, the police said the statute did not create universal jurisdiction and was not binding to non-member states such as Zimbabwe.
“At most the statute creates a network extending between its member states,” said Jakobus Meier, an attorney at the office of the state attorney, who represents national police commissioner Riah Phiyega.
“The statute can do no more than bind its member states.
“Crucially, it does not purport to authorise interference with the sovereignty of non-members.”
Meier said South Africa’s Implementation of the Rome Statute of the International Criminal Act, which was passed in 2002, should be interpreted to give effect to the statute’s concern and respect for the sovereignty of countries. “Indeed, the express wording of the Act makes this sufficiently clear.
“Nowhere in the Act is a duty created to prosecute subjects of non-member states.”
The Southern Africa Litigation Centre and the Zimbabwe Exiles Forum have indicated they would oppose the application.