Universal Jurisdiction: South African Police Service obliged under domestic and international laws to investigate allegations of the crime against humanity of torture committed in Zimbabwe.
December 2, 2014
Universal Jurisdiction: South African Police Service obliged under domestic and international laws to investigate allegations of the crime against humanity of torture committed in Zimbabwe.
Constitutional Court of South Africa
National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another
Before:Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Van der Westhuizen J and Zondo J
October 30, 2014
Reported By Linda Awuor & Diana O. Kerubo
In March 2007, a year before national elections in Zimbabwe, the Zimbabwean police, allegedly acting on instructions from the ruling political party, the Zimbabwe African National Union – Patriotic Front (ZANU–PF), raided Harvest House in Harare which was the headquarters of the main opposition party, the Movement for Democratic Change (MDC). During the raid more than 100 people were taken into custody and were detained for several days and allegedly tortured by the Zimbabwean police. The detention and torture was allegedly part of a widespread and systematic attack on MDC officials and supporters in the run-up to the national elections.
The First Respondent, the South African Human Rights Litigation Centre (SALC) went ahead and compiled detailed evidence of the alleged torture. It obtained sworn written statements from deponents who attested to being tortured whilst in police custody.
Out of concern about the alleged collapse of the rule of law in Zimbabwe, the safety of the victims and the possibility that the Zimbabwean courts would not hold the perpetrators accountable, the first respondent collated the evidence into a dossier (torture docket). The torture docket was submitted to the National Prosecuting Authority (NPA) and police together with a comprehensive memorandum in which the substance and procedure of prosecuting crimes against humanity were outlined.
The first respondent requested the NPA, to consider the memorandum and the evidence to enable it expeditiously decide whether to initiate an investigation, under the Implementation of the Rome Statute of the International Criminal Court Act (ICC Act), into the alleged acts of torture.
This request to probe into the allegations of torture was however declined. According to theSouth African Police Service (SAPS), the matter had been inadequately investigated and that further investigations would be impractical, legally questionable and virtually impossible.
According to the first respondent, South African law-enforcement agencies were legally obliged under the ICC Act to investigate international crimes (including torture) and to hold the perpetrators of these crimes accountable in South African courts. Not all instances of torture constituted crimes against humanity, but it was undisputed that if the allegations in the case were proved, the conduct of the Zimbabwean police officers could amount to crimes against humanity and thus an international crime.
Both the High Court and the Supreme Court of Appeal upheld the Application by the Respondents seeking to set aside the decision by the police not to investigate. SAPS were thus ordered to investigate the alleged acts of torture.
In the instant case, the Applicant sought to attack the Supreme Court of Appeal’s decision on grounds, that it: it adopted an absolutist position on universal jurisdiction; granted relief not sought; and predetermined the manner in which the SAPS was required to exercise its investigatory discretion.
- Whether, in the light of South Africa’s international and domestic law obligations, the South African Police Service (SAPS) had a duty to investigate crimes against humanity committed beyond borders and if so, under which circumstances was the duty triggered?
- Whether presence of the accused was required for the investigation of international crimes.
International Law-Constitution of South Africa-domestication of international agreements and application of customary international law-international and domestic law obligations to investigate crimes against humanity committed across borders-whether, in the light of South Africa’s international and domestic law obligations, the South African Police Service (SAPS) had a duty to investigate crimes against humanity committed beyond borders-Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act)-Constitution of South Africa sections 231(4),232
International Law-Constitution of South Africa-duty of police to investigate crimes-whether the South African Police Service (SAPS) had a duty to investigate crimes against humanity committed beyond borders and if so, under which circumstances was the duty triggered?-Constitution of South Africa, section 205(3).
International Human Rights Law-torture-investigation of allegations of the crime of torture committed beyond borders -presence of an accused for purposes of an investigation-whether presence of the accused was required for the investigation of allegations of torture-Section 4(3)(c)Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.
International Law-universal jurisdiction-limiting principles-principles of subsidiarity and practicability-investigation of international crimes to take place in line with considerations of the principles of subsidiarity and practicability.
Constitution of South Africa
National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.
The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.
Section 231(4)-International Agreements
Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
Section 232-Customary International Law
Customary International Law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act)
Section 4(1) and (3)
(1) Despite anything to the contrary in any other law of the Republic, any person who commits a crime, is guilty of an offence and is liable on conviction to a fine or imprisonment, including imprisonment for life, or such imprisonment without the option of a fine, or both a fine and such imprisonment.
(3) In order to secure the jurisdiction of a South African court for purposes of this Chapter, any person who commits a crime contemplated in subsection (1) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if––
(a) that person is a South African citizen; or
(b) that person is not a South African citizen but is ordinarily resident in the Republic; or
(c) that person, after the commission of the crime, is present in the territory of the Republic; or
(d) that person has committed the said crime against a South African citizen or against a person who is ordinarily resident in the Republic.
South African Police Service Act
The National Head of the [Hawks] may, if he or she has reason to suspect that a national priority offence has been or is being committed, request the [NDPP] to designate a Director of Public Prosecutions to exercise the powers of section 28 of the [NPA Act].
Rome Statute of the International Criminal Court
Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,
Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,
Article 17-Issues of admissibility
- Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
- The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
- The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
- The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
- The case is not of sufficient gravity to justify further action by the Court.
- In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
- The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
- There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
- The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
- In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.
- The need for states parties to comply with their international obligation to investigate international crimes was most pressing in instances where those crimes were committed by citizens of and within the territory of countries that were not parties to the Rome Statute, because to do otherwise would permit impunity. If an investigation was not instituted by non-signatory countries in which the crimes had been committed, the perpetrators could only be brought to justice through the application of universal jurisdiction, namely the investigation and prosecution of the alleged crimes by states parties under the Rome Statute.
- The primary purpose of the ICC Act was to enable the prosecution, in South African courts or the ICC, of persons accused of having committed atrocities, such as torture, beyond the borders of South Africa.
- Torture, even if not committed on the scale of crimes against humanity, was regarded as a crime which threatened the good order not only of particular states but of the international community as a whole. Coupled with treaty obligations, the ban on torture had the customary international law status of a peremptory norm from which no derogation was permitted.Whether on the scale of crimes against humanity or not, torture constituted a crime in South Africa in terms of section 232 of the Constitution because the customary international law prohibition against torture had the status of a peremptory norm.
- Section 4(1) of the ICC Act created crimes and punishment. Section 4(3) sets the limits to universal jurisdiction. Section 4(3)(c) required presence of the accused. On the back this section the SAPS contended that it had no duty to investigate the alleged torture in Zimbabwe because the suspects were not present in South Africa. That contention, however, held true only as far as the prosecution of a crime in a South African court was concerned.The Constitution required that an accused person be present during her or his trial, but it did not set presence as a requirement for an investigation. More precisely, section 4(3) set the jurisdictional limits of South African courts. However, it was silent on the circumstances under which South Africa had the duty to investigate international crimes committed outside of South Africa’s territory.
- The predominant international position was that presence of a suspect was required at a more advanced stage of criminal proceedings, when a prosecution could be said to have started. This position accorded with the section 4(3) requirement of presence for the purposes of prosecution. The reasoning by scholars that presence was generally not required for an investigation and there was no international law rule that imposed that requirement conformed to the South African Constitution which required an accused to be present when being tried. Accordingly, the exercise of universal jurisdiction, for purposes of the investigation of an international crime committed outside the territory, would occur in the absence of a suspect without offending the South African Constitution or international law.
- The alleged acts of torture were perpetrated in Zimbabwe, by and against Zimbabwean nationals. None of the perpetrators was present in South Africa. South Africa would, through universal jurisdiction, assert prescriptive and, to some degree, adjudicative jurisdiction by investigating the allegations of torture as a precursor to taking a possible next step against the alleged perpetrators such as a prosecution or an extradition request. Therefore, the contention by the SAPS that it could not investigate without a suspect’s presence failed.
- International law commitments to investigate crimes against humanity, including torture, ought to have been discharged through South Africa’s law-enforcement agencies. Section 205(3) of the Constitution outlined the SAPS’s constitutional duties.The Supreme Court of Appeal held that the SAPS had the requisite power to investigate the allegations of torture. That was not just a power, but also a duty. That duty arose from the Constitution read with the ICC Act, which ought to have been interpreted in relation to international law.
- The applicable legislative scheme, understood in the light of international customary law and other international obligations, placed an obligation on South Africa through the SAPS to investigate crimes against humanity, including torture, committed outside its territory. However, the universal jurisdiction to investigate international crimes was not absolute. It was subject to at least two limitations.
- The first limitation arose from the principle of subsidiarity. It required that ordinarily there ought to have been a substantial and true connection between the subject-matter and the source of the jurisdiction. And once jurisdiction was properly founded, the principle of non-intervention in the affairs of another country ought to have been observed; investigating international crimes committed abroad was permissible only if the country with jurisdiction was unwilling or unable to prosecute and only if the investigation was confined to the territory of the investigating state. Simply put, investigation or prosecution international crimes could not take place in breach of considerations of complementarity and subsidiarity.
- The second limiting principle was practicability. Before assuming universal jurisdiction consideration ought to have been made on whether embarking on an investigation into an international crime committed elsewhere was reasonable and practicable in the circumstances of each particular case. That decision ought to have been be made in the light of all the relevant circumstances. None of the factors alone ought to be dispositive of the enquiry. Each case ought to be determined on its own merits and circumstances.
- Amongst the considerations were whether the investigation was likely to lead to a prosecution and accordingly whether the alleged perpetrators were likely to be present in South Africa on their own or through an extradition request; the geographical proximity of South Africa to the place of the crime and the likelihood of the suspects being arrested for the purpose of prosecution; the prospects of gathering evidence which was needed to satisfy the elements of a crime; and the nature and the extent of the resources required for an effective investigation. In some instances a preliminary investigation to test the reasonableness of undertaking a full-blown investigation would be necessary. In each case the ultimate enquiry was whether, all relevant considerations weighed, the SAPS acted reasonably in declining to investigate crimes against humanity committed in another country.
- The first reason SAPS gave was that it had no extra-territorial jurisdiction and that the mere anticipated presence of a suspect at some future time in the country was not sufficient to clothe the it with the requisite power and jurisdiction. This was a misconception of the SAPS’s domestic legal duty.
- The second reason given was that any investigation would be potentially harmful to South Africa–Zimbabwe relations on a political front. The cornerstone of the universality principle, in general, and the Rome Statute, in particular, was to hold torturers, genocidaires, pirates and their ilk, the so-called hostis humani generis, the enemy of all humankind, accountable for their crimes, wherever they would have committed them or wherever they would be domiciled. An approach like the one adopted by the SAPS in the instant case undermined that very cornerstone. Political inter-state tensions were, in most instances, virtually unavoidable as far as the application of universality, the Rome Statute and, in the present instance, the ICC Act was concerned.
- The SAPS had misconceived the legal position in its decision not to investigate the torture allegations. It had misconstrued the meaning of its legal duty in terms of the SAPS Act and the ICC Act. It had failed to recognise that the crime of torture had been domesticated into law by the ICC Act in terms of section 231(4) of the Constitution and that it was law in the Republic in terms of section 232 of the Constitution due to its status as a peremptory norm of customary international law. The SAPS had further failed to recognise that courts were required to interpret all national laws in accordance with binding international law as prescribed by section 233 of the Constitution. Ultimately, there was no distinction between national and international high priority crimes domesticated into South African law.
- Given the international and heinous nature of the crime, South Africa had a substantial connection to it. An investigation within the South African territory did not offend against the principle of non-intervention and there was no evidence that Zimbabwe had launched any investigation or had indicated that it was willing to do so, given the period of time since the alleged commission of the crimes. Furthermore, the threshold for the SAPS to decline to investigate, bearing in mind the particular facts and circumstances, had not been met in the instant case. There was a reasonable possibility that the SAPS would gather evidence that would satisfy the elements of the crime of torture allegedly committed in Zimbabwe.
- The Supreme Court of Appeal was therefore correct to rule that on the facts of the case the torture allegations ought have been investigated by the SAPS.
- In respect of costs, the principles in Biowatch [Biowatch Trust v Registrar, Genetic Resources, and Others  ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC) at paras 21-5] applied. The Respondents litigated in the interests of justice and constitutional certainty and had been successful in this Court. The instant case had far-reaching consequences for the applicationof the ICC Act in South Africa and on the manner in which the SAPS, the DPCI, the PCLU and the NPA would, from then on, discharge their constitutional, international and domestic law obligations. It was furthermore a matter of substantial complexity in uncharted terrain.
The following order was made:
1. Leave to appeal was granted.
2. Subject to paragraph 3 below, the appeal was dismissed.
3. The order of the North Gauteng High Court was set aside and replaced with the following:
(a) The decision of the National Commissioner of the South African Police Service to decline to investigate the complaint laid by the Southern African Human Rights Litigation Centre was reviewed and set aside.
(b) The South African Police Service to investigate the complaint.
4. The applicant to pay the costs of the Southern African Human Rights Litigation Centre (first respondent) and the Zimbabwe Exiles’ Forum (second respondent), the Supreme Court of Appeal and the North Gauteng High Court, including the costs of three counsel where applicable.
Relevance to Kenya
Under Article 2 of the Constitution of Kenya, 2010, general rules of international law form part of the law of Kenya and any treaty or convention ratified by Kenya shall form part of the law of Kenya.
This unity of the internal and international legal systems essentially makes Kenya a monist state unlike South Africa which requires domestication of treaties and conventions ratified by it.
Kenya is also a State Party to the Rome Statute.
The International Crimes Act Cap 60 Laws of Kenya makes it an offence under Article 6(1)(b) to commit crimes against Humanity. The Act further adopts the definition of crimes against humanity under Article 7 of the Rome Statute
In this section-
“crime against humanity” has the meaning ascribed to it in article 7 of the Rome Statute and includes an act defined as a crime against humanity in conventional international law or customary international law that is not otherwise dealt with in the Rome Statute or in this Act;
Article 7(1) of the Rome Statute lists and defines crimes against humanityas any act when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. This includes torture under Paragraph (f)
Kenya-Jurisdiction to try offences under the International Crimes Act
Similar to Section 4 of South Africa’s’ Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act), Section 8 of the International Crimes Act provides for circumstances under which a person alleged to have committed an offence under Section 6(genocide, crimes against humanity and war crimes) may be tried and punished in Kenya. One of the circumstances is that, if that person is, after commission of the offence, present in Kenya.
This case however proposes that the accused needs not be present in the Republic for purposes of investigations. Presence of the accused according to the court is required during advanced stages such as trial.
This therefore implies that Kenya, relying on jurisprudence set in this case and under the principle of universal jurisdiction, keeping in mind the limiting principles of subsidiarity and practicability can investigate international crimes committed its beyond borders.