Justice for Zimbabweans? The Recent South African High Court Ruling

By Sam Hawke

“If the ruling is upheld, Zimbabwean human rights violators may soon face prosecution upon travelling south of their border”

Suspicion of neo-colonialism and structural racism continues (rightly or wrongly) to cloud the International Criminal Court regime. The recently-successful prosecution of Charles Taylor will have done little to calm dissenters, and the length and location of his imprisonment will remain issues of much dispute. Supporters of the ICC regime may therefore have cause for celebration in the recent judgment of South African High Court. In North Gauteng province, Justice Fabricius held that the failure to begin investigations into allegations of torture in Zimbabwe – against 17 publicly unnamed Zimbabweans for a raid of Movement for Democratic Change headquarters in 2007 – constitutes a breach both of the South African Constitution and its Rome Statute Act (incorporating the obligations to which South Africa is subject as signatory to the statute of the ICC). South Africa’s Prosecuting Authority has yet to state whether it will appeal the ruling, although the South African Police purportedly intend to do so. If the ruling is upheld, Zimbabwean human rights violators may soon face prosecution upon travelling south of their border.

With the recent UN Committee Report into the issue, the concept of universal jurisdiction appears to be gaining increasing acceptance among states. The ICC regime provides a buttress for the concept: its statute counsels complementarity, the principle that the ICC’s jurisdiction is one principally of last resort. It is this notion – when applied with sufficient deference to national courts by ICC prosecutors – that may serve to best legitimate the regime in the eyes of its detractors. It is the wholehearted acceptance of these twin notions, alongside the obligation to investigate and prosecute that they may entail, that gives this judgment its remarkable power.

Colonialism, old and new, remains a serious issue in Zimbabwe. With the country facing an election (albeit a continually deferred one), claims of national sovereignty over Zimbabwean farmland and the completion of the original anti-colonial struggle provide some of the fuel on which election campaigns are fought by the country’s historic revolutionary party. It is not surprising that ZANU-PF – President Robert Mugabe’s party, which claims the victory of the nation’s anti-colonial struggle – continues to receive not-insubstantial support for what remains their brutal recent record. The Shona word ‘Chimurenga’ (meaning ‘revolutionary struggle’) has been oft-invoked to elide the struggle for land by black Zimbabweans marginalised for so long and the fight for power and patronage of ruling elites.

During the recent constitution-making process in which the Zimbabwean public were asked for their views on the contents of a future constitution, the question of the permissibility of dual nationality has provided another outlet for nationalist fervour, chauvinist or otherwise. Sanctions against certain ZANU-PF members have functioned similarly for a number of years. Whilst they are largely nominal – Mugabe, for one, has used a variety of diplomatic loopholes to avoid prohibitions on foreign travel – they nonetheless serve to stoke anti-colonialist anger wherever ZANU-PF directs its rhetoric.

Cries of anti-colonialism are all the more problematic for being so plausible. President Mugabe stated at the UN General Assembly last year that the ICC “seems to exist only for alleged offenders of the developing world, the majority of them Africans”. He condemned the “selective justice” of the Court which permitted the failure to prosecute George Bush and Tony Blair for their crimes in Iraq. The President chose his words well, and I don’t think any honest person can deny their truth; what is contentious is whether this strips the ICC of all legitimacy to pursue some, albeit selective, prosecutions. It probably doesn’t, but it should remain a serious worry.

These problems need to be steadfastly born in mind when thinking about Zimbabwe and international and transnational criminal justice. The question of land reform and the attacks on white farmers has no doubt been a substantial catalyst for international attention. This is whilst much of Zimbabwe remains in abject poverty; apartheid is dead, but its spectre haunts the racialised distribution of wealth in the country. Zimbabwe’s recent horrors grew far greater than farm invasions alone: the dispossession, torture, and murder have scarred the poorest of the nation in vastly greater numbers. But it is easy to see the conclusion – and there are many who accept it – that the disproportionate interest in Zimbabwe is symptomatic of a greater pathology. It would be too crude to compare the current death toll of white farmers (which I think remains in the low tens) with the ‘Gukurahundi’ (Shona for ‘the rain that washes away the chaff’) genocide of the 1980s in which approximately 20000 black Zimbabweans were killed by Mugabe’s special forces in Matabeleland and the Midlands. A few years after the end of the war which left Mugabe and ZANU-PF in power, Mugabe ordered the deaths of thousands branded as ‘dissidents’ but identified as such by no more than their ethnic Ndebele status (ZANU-PF being largely Shona). The comparison between the searing scrutiny of current attention to the near-total media blackout during the genocide is stark. This too compares unfavourably with the mounting horrors of the Democratic Republic of Congo or the tragedies of poverty and inequality in South Africa. Any conclusion as to the power of race in the international media must surely seem perfectly plausible to many Zimbabweans, and I wouldn’t feel qualified to dismiss it as an oversimplification to be ignored and downplayed. It must remain a serious factor in Zimbabwe’s assessment of the ICC regime and its transnational corollaries.

The calls last year in the House of Lords for the referral of Philip Machemedze – accused of committing torture as a member of the Zimbabwean secret police  – to the ICC from the UK in which he currently finds refuge is uncomfortable in this regard. The commitment of the UK to the cause of international justice appeared less obvious when it welcomed Mugabe’s government just as it began its ‘Gukurahundi’ campaign. Current Air Marshall Perence Shiri, the then commander of Mugabe’s specially-commissioned Fifth Brigade unit that carried out the atrocities, was invited to the UK in 1986 (a year prior to the end of the atrocities) to train at the Royal College of Defence Studies. After his tutelage, and his predictably bloody history back in Zimbabwe, he remains a prominent member of the Joint Operations Command, the military cabal of veteran ZANU-PF leaders who planned and coordinated the beatings, torture, and murder during the 2008 election period. Uncomfortably, he may now face the threat of prosecution just as the worst of his crimes are long-forgotten – if registered at all – by many calling for international involvement. Given that crimes committed prior to 2002 are not liable for prosecution under the ICC Statute, Shiri will never face the worst of the charges against him. Ordinary Zimbabweans are perhaps not quite so forgetful or forgiving.

The new South African ruling should be welcomed in many respects. With little chance of any change in government from the post-2009 coalition between ZANU-PF and the MDC, South African investigation and prosecution – or at least its threat – may remain the best compromise between impunity and the ICC. Moreover, the judgment has sparked further calls for justice: it was reported yesterday that Zimbabwean activists in South Africa are attempting to instigate prosecutions of South African officials accused of assisting in the abductions of Zimbabweans from South Africa for their return to Zimbabwe.

As a co-member of the Southern African Development Community and Zimbabwe’s key ally, South Africa has played an interesting role in Zimbabwe’s recent crisis. Former President Thabo Mbeki pursued an ‘appeasement’ approach towards ZANU-PF and its abuses which earned him criticism from sources in South Africa and elsewhere. He has responded, however, with the not-implausible cry that Zimbabwe is not (or no longer) the DRC or Rwanda, reiterating the suspicion of racial and anti-land reform bias in the criticisms made against his approach. This may have been alongside worries that the opposition MDC represented – and precipitated – illegitimate foreign involvement in the crisis. Regardless, current President Jacob Zuma has pursued a far less deferential approach, and trenchant disputes have been in evidence over the timing of the next election and the achievement of political reform.

Prosecution outside Zimbabwe has remained a strongly-felt threat to much of ZANU-PF’s senior-most members, with multiple calls for criminal investigation by the ICC since the beginning of the the recent violence. The addition of South Africa to the list of countries to which Zimbabwean elites are precluded, for fear of prosecution, will be sorely felt: it is a premier destination for shopping, international travel, medical treatment, and the schooling of children for the wealthier of the country.

South Africa may therefore hold a level of legitimacy in the pursuit of justice that is far less vulnerable both to Mugabe’s rhetoric and the concerns historically-minded Zimbabweans may have about the ICC-enthusiastic sectors of the international community. Whilst South African law does not permit trial in absentia, it may nonetheless serve as a powerful and painful threat to human rights violators. This is all the more so for the (apparent) fact that South African law may trump sovereign and diplomatic immunity in such cases.

There may remain questions as to the compatibility of South Africa’s role as SADC mediator in Zimbabwe’s continuing political change and its potential role in the prosecution of Zimbabwean torture suspects. Indeed, this was one of the arguments raised by the prosecuting authorities in the case, but it was rightly dismissed by the judge as a consideration irrelevant to the fulfilment of their legal obligations. The threat of prosecution – especially when a  matter of domestic and international law binding on the government – may be a powerful source of pressure with which to substantively, rather than formally, eschew the ‘constructive engagement’ approach of Mbeki. The extent to which this will work as a generator of greater legitimacy in the eyes of Zimbabweans will of course also demand the perceived independence of the South African government from the sectors of the international community of which many are suspicious.

Moreover, the mechanics of hand-overs of power and conflict resolution are in many ways antithetical to the aims of real criminal justice. With continually deferred elections, inertia may be gripping Zimbabwe’s coalition government. Many suspect this is a deliberate strategy: there has been a significant decrease in widespread, overt political violence over the last few years, but perhaps an increase in the more insidious, muted repression that ZANU-PF feel they can get away with. Anything that threatens to deepen what is beginning to seem a crisis of attrition is worrying, and this may include stronger and stronger threats of international or transnational criminal prosecution. There is no precise way of measuring these forces, but it must be stressed that the ideal of criminal justice will be a false one if strengthens the barriers to real political change in the country.

The acceptability of the ICC regime should remain a real issue for many Zimbabweans. Citizens of Africa need persuading that the cause of international justice is one to which they too can rally. Perhaps the pursuit of justice by an hitherto accommodating South African government will do something to calm suspicions, although realism too must be counselled.

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