Authorities at the NPA have received a complaint alleging that at least 80 Zimbabwean women were systematically raped by suspected supporters of President Robert Mugabe in the run-up to the 2008 presidential run-off. But despite the optimism sounding from AIDS Free World, the organisation that lodged the complaint, it is not clear if a formal investigation will actually be launched. By KHADIJA PATEL.
This week, international advocacy organisation AIDS Free World announced that South Africa had agreed to address allegations of crimes against humanity perpetrated in Zimbabwe in 2008.
“This month, South Africa’s National Prosecuting Authority (NPA) and the South African Police Service (SAPS) formally agreed to open an investigation into widespread rape perpetrated in the lead-up to Zimbabwe’s 2008 presidential elections,” the organisation said in a statement.
AIDS Free World alleges that during the 2008 presidential elections, Zimbabwean President Robert Mugabe and members of his Zanu-PF political party unleashed a ruthless campaign of violence against opposition party supporters in order to intimidate voters and secure the presidency. “Rape is one of Zanu-PF’s prime political strategies,” Stephen Lewis, co-director of AIDS Free World, said at a press conference in Johannesburg on Wednesday.
“We salute what the NPA has done and what the South African leadership may bring,” he added.
Like Lewis, Paula Donovan – the other co-director of the organisation – praised the South African state. “South Africa has taken extraordinary action to investigate what happened in 2008,” she said.
The NPA itself, however, claims AIDS Free World has misrepresented its actions.
While confirming receipt of a dossier from AIDS Free World that requests an investigation be initiated into the alleged widespread sexual offences perpetrated in the lead-up to the 2008 Zimbabwean presidential election, the NPA claims that it is still at an early stage of the process and cannot confirm an investigation. Makhosini Nkosi, acting spokesperson for the NPA, said, “The NPA has referred the matter to the South African Police Service’s (SAPS) Directorate for Priority Crime Investigations, the Hawks. The Hawks are busy with the assessment process that will determine whether or not an official investigation should be conducted.”
For now, the NPA’s Priority Crimes Litigation Unit (PCLU) is “meaningfully involved in advising the SAPS”. According to Nkosi, the PCLU has also convened an internal multi-disciplinary task team, which includes the Sexual Offences and Community Affairs Unit and the Office for Witness Protection, to consider all aspects of the allegations.
A final decision on whether or not to pursue an investigation rests with the Hawks.
AIDS Free World contends that the disclaimers from the NPA are coming from the communications department and do not fully reflect the communication it has had with the state prosecutors.
AIDS Free World says it has honoured a request from the NPA for a meeting and has been assured of its own security, as well as that of the women testifying to abuses.
“We have not received any interaction from the NPA that says anything has changed,” Donovan insists.
But between the NPA and AIDS Free World, there appears to be some level of misunderstanding.
Shonali Shome, a human rights lawyer with AIDS Free World, spent 10 months interviewing women in Zimbabwe about their experiences in the 2008 electoral violence.
“[The crimes] were widespread and systematic,” she says. “It became clear very quickly that we were looking at crimes against humanity.”
It is under the emerging doctrine of “universal jurisdiction” that these alleged crimes against humanity have been referred to the NPA. “This simply means the universe or any country has a duty to prosecute perpetrators of such crimes without the crimes necessarily having been perpetrated in the country or victims being citizens of that country,” explains Professor Michelo Hansungule, an expert in international justice at the University of Pretoria.
He adds, “Mass rape is categorised as a war crime in the Rome Statute of the International Criminal Court, and South Africa is signatory to the Rome Statute. It does not matter that Zimbabwe is not signatory, first[ly] because the crimes are universal and second[ly], punishment is personal upon the person of the alleged perpetrator.”
The principle of universal jurisdiction is, however, relatively untried in Africa. “Until now, only some European countries have been invoking this jurisdiction for crimes such as genocide in Rwanda or torture in foreign countries,” Hansungule says.
“However, African countries have not yet invoked this jurisdiction, among other reasons, for the fear that countries of those citizens might retaliate against citizens of the punishing country.”
This is not the first time the South African state has used domestic laws to investigate another African country under the principle of universal jurisdiction. Last year a group of refugees from the Ogaden region in Ethiopia lodged a 700-page complaint against the Ethiopian government with the South African commissioner of police, the head of the directorate of priority crimes investigation unit and the director of public prosecutions. Their attorney, Afzal Abba, said the complaint detailed “incontrovertible evidence” of human rights abuses and war crimes on the part of the Ethiopian government.
In recent years, Abba has filed at least three complaints with the NPA, citing the principle of universal jurisdiction.
Even if the Hawks do decide to investigate the complaint, Abba warns that the NPA will rely on AIDS Free World for assistance.
“Neither the NPA nor SAPS have the resources to actually [go to Zimbabwe and] investigate the complaints themselves,” he says. “So they rely on the evidence submitted in the dossier.”
Abba believes that the successful investigation and the speed with which it proceeds to court depends on the political will of the South African state. “I think a lot of it is politically motivated,” he explains.
In the case of the Ogaden refugees, Abba says the NPA has indicated interest to continue its investigation despite the death of one of the perpetrators named in the complaint.
Last January, Gadija Davids, a journalist from Cape Town, instructed her attorney, Ziyaad Patel, to lodge a complaint with the NPA against the Israeli government. Davids was imprisoned by Israeli authorities after an attack on the Mavi Marmara flotilla to Gaza in 2010. According to the complaint, Davids and other civilians had been subjected to “inhumane treatment” by Israel, which is considered a violation of their rights, crimes against humanity in terms of schedule one of the Rome Statute, and war crimes in terms of schedule three of the statute.
But it was eleven months before Davids and her attorney received word from the Hawks that an investigation would proceed. With the complaint filed by AIDS Free World, it may be some time yet before South African authorities decide whether or not to investigate the matter further.
“We submitted this dossier in the middle of December last year. In January, notice was given that an inquiry had been opened,” Shome says. “Both the NPA and SAPS assured us that they would take the vulnerability of victims into consideration.”
AIDS Free World has been encouraged by the speed with which the NPA has responded to its submission of the dossier. “We are taking our cues from the rapidity [with which] the SAPS and the NPA responded to our dossier,” co-director Donovan says.
AIDS Free World says the “agreement” from NPA to investigate its complaint is significant in the run-up to the upcoming referendum on the Zimbabwean constitution, not to mention the elections expected later this year. There is hope, then, that a looming investigation may deter perpetrators from engaging in violence this time around.
More cynical observers, meanwhile, are unconvinced by the timing of the organisation filing its complaint with the NPA. They argue that this may be an attempt by an external force to interfere in Zimbabwean politics.
Either way, though, the NPA has to wait for the Hawks to find out if there will be an investigation at all. DM
Photo: Zimbabwean President Robert Mugabe speaks at the funeral of liberation veteran Ephraim Masawi in Harare, September 30, 2010. REUTERS/Philimon Bulawayo
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