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South Africa is the New United Nations: A landmark ruling says South African police must investigate torture, wherever it occurs!

Brad Cibane

On Thursday, 30 October 2014, the Constitutional Court of South Africa handed down a landmark judgment in National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre and Another. The Court held, essentially, that South African authorities, specifically the South African police Service (SAPS), must investigate allegations of torture in Zimbabwe against Zimbabwean nationals. This obligation is founded on South Africa’s commitments under international law and the country’s domestic legislation.

Background

In March 2007, a year before national elections in Zimbabwe, the Zimbabwean police, allegedly acting on instructions from the ruling political party, ZANU–PF, raided Harvest House, the headquarters of the main opposition party MDC, in Harare.

The police took more than 100 people into custody, including workers in nearby shops and offices. The detainees were kept for several days, and allegedly tortured by Zimbabwean police. Several non-governmental organisations alleged that the detention and torture were part of a widespread and systematic attack on MDC officials and supporters in the run-up to the national elections.

The Southern African Litigation Centre (SALC) compiled evidence of the alleged torture into a ‘torture docket’. The docket contained sworn statements of deponents attesting that they were subjected to severe pain and suffering as a result of beatings with iron bars and baseball bats, waterboarding, forced removal of their clothing, and electric shocks applied to their genitals and thighs, and mock executions. The deponents claimed that they were tortured to extract information about their involvements with MDC. The docket also contained statements by Zimbabwean lawyers, medical practitioners and family members corroborating the torture allegations.

On 16 March 2008, SALC hand-delivered the torture docket to the Priority Crimes Litigation Unit (PCLU) of the National Prosecuting Authority (NPA) in South Africa. The torture docket was submitted together with a comprehensive memorandum (prepared by prolific South African public lawyers). The memo outlined the substance and procedure for prosecuting crimes against humanity.

SALC requested the prosecuting authority to consider the memorandum and decide whether to initiate an investigation under the Implementation of the Rome Statute of the International Criminal Court Act of 2002 — a South African law implanting the Rome Statute. SALC also offered to pry for further evidence and to provide advice in relation to the investigation.

On 19 June 2009, after considerable delay, the head of the prosecuting authority (the NDPP) informed SALC that the request was considered and forwarded to the Police Service for evaluation. The final decision was not to initiate an investigation. The reasons for the decision included that the matter had been inadequately investigated and that further investigations would be impractical, legally questionable and virtually impossible. SALC approached the High Court to review the prosecuting authority’s decision.

The High Court issued a declaratory order that the decision not to investigate the alleged torture by the Zimbabwean police during March 2007 was unlawful and constitutionally invalid. The National Commissioner of the Police Service appealed to the Supreme Court of Appeals (SCA).

The Supreme Court of Appeal held that “[South African Police] are empowered to investigate the alleged offences [of torture] irrespective of whether or not the alleged perpetrators are present in South Africa; [and] the SAPS are required to initiate an investigation under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 into the alleged offences.” For its decision, the SCA relied on international law and South African law. The Commissioner appealed again the highest court (Constitutional Court).”

The question posed to the Constitutional Court was whether, in the light of South Africa’s international and domestic law obligations, the Police Service in South Africa has a duty to investigate crimes against humanity committed beyond our borders. If so, under which circumstances is this duty triggered?

Holdings

The Constitutional Court made several interrelated findings. I will attempt to tabulate them here.

(a) International Law in South Africa

First, the Court considered the role of international Law in the South African constitutional framework. Relying on sections 231 and 232 of the Constitution, the Court held that: “(a) customary international law is part of our domestic law insofar as it is not inconsistent with the Constitution or an Act of Parliament; (b) international treaty law only becomes law in the Republic once enacted into domestic legislation; and (c) national legislation should, in turn, be interpreted in the light of international law that has not been domesticated to South African law by national legislation but that is nonetheless binding upon it.”

(b) Universal Jurisdiction

Having clarified South Africa’s obligations under international law, the Court then considered whether South Africa has the jurisdiction to investigate and prosecute allegation of torture. The issue of jurisdiction is in two parts. Firstly, whether South Africa has jurisdiction under international law; and, secondly, whether South Africa has jurisdiction under domestic law.

Relying largely on academic writings, the Court distinguished between “(a) prescriptive (or legislative) jurisdiction which empowers states through their common law or domestic legislation to prohibit certain conduct; (b) adjudicative (or judicial) jurisdiction which authorises states to enforce the proscribed conduct by means of, amongst other things, investigations and prosecutions; and (c) enforcement (or executive) jurisdiction by which states are capacitated to determine the outcome of matters pursued through the exercise of adjudicative jurisdiction by, for example, enforcing decisions on proscribed conduct.”

Further, the Lotus Case[1] laid down two complementary principles of territoriality: “(a) may not exercise their power in any form in the territory of another state, unless there is a permissive rule to the contrary; and (b) retain a wide measure of discretion to exercise jurisdiction within their own territory, with regard to acts committed beyond their borders. The second principle allows states to exercise prescriptive, adjudicative and enforcement jurisdiction solely within the confines of their territory.”

From this, the Court extracted three general principles: (a) “there should be a substantial and bona fide connection between the subject-matter and the source of the jurisdiction”; (b) “the principle of non‑intervention in the domestic or territorial jurisdiction of other states should be observed”; and (c) “elements of accommodation, mutuality, and proportionality should be applied”.

The nub of the Court’s holding is that:

‘The exercise of enforcement jurisdiction is confined to the territory of the state seeking to invoke it. The principle of non-intervention safeguards the principle of territoriality. Domestic criminal jurisdiction based on universality therefore applies to prescriptive jurisdiction but can also apply to adjudicative jurisdiction, subject to the constraints of territoriality. Accordingly, investigations and the exercise of adjudicative jurisdiction confined to the territory of the investigating state are not at odds with the principles of universal jurisdiction.’

The Court held that the International Criminal Court (ICC) exercises complementary jurisdiction over the most serious crimes of international concern, which includes the crimes against humanity of torture. The principle of complementarity provides that States parties bear the primary responsibility to investigate and prosecute international crimes. The ICC will only undertake investigations and prosecutions as a matter of last resort, where states parties are either unwilling or unable to do so.

(c) South African Jurisdiction

The Rome Statute is incorporated into national legislation in South Africa through ICC Act. The international crimes against humanity (including torture) are listed in the South African Act and have thus become statutory crimes in our national law, including torture. South Africa has also domesticated the Convention against Torture through the Prevention and Combating of Torture of Persons Act of 2013. Finally, the Court held that, in any event, international law prohibition against torture has the status of a peremptory norm and is thus law in South Africa.

Having established that torture is a crime under domestic law, the Court proceeded to consider the jurisdiction to investigate allegations of torture against foreign national who are not present in South Africa. The Court looked into subsections 4(1) and (3) of the South African ICC Act, which regulates the jurisdiction of South African courts in respect of international crimes. The section provides that:

‘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.’

The Court held that whereas section 4(1) creates crimes and punishment, section 4(3) sets the limits to universal jurisdiction. Thus, “When a person commits an envisaged crime outside of [South Africa] our courts will have jurisdiction only if at least one of the connecting factors is present. The accused person must be a citizen of, or ordinarily resident in, our country, must have committed the crime against a citizen or a person ordinarily resident within the country, or must be present in the country after the commission of the offence.”

The SAPS had argued before that section 4(3) requires the suspect’s presence in South Africa before any investigation may commence. The question then was “whether presence is a factor at all when it comes to the exercise of universal jurisdiction for an investigation of an international crime.” The Court said no.

Article 17 of the Rome Statute draws a distinction between “investigation” and “prosecution”. State parties have the discretion to determine ‘where to draw the line between these two phases of criminal proceedings.’

The Court held that the predominant position, which accords with the section 4(3) requirement of presence, is that presence of a suspect is required at a more advanced stage of criminal proceedings, when a prosecution can be said to have started. This is also inline with section 35 of the Constitution, which requires an accused “to be present when being tried”. The Court concluded, therefore, that the exercise of universal jurisdiction for purposes of the investigation of an international crime committed outside South Africa may occur in the absence of a suspect without offending our Constitution or international law.

Duty to Investigate

Having found that crimes against humanity are domestic crimes, even when they occur outside South Africa, the Court went on to consider whether South African authorities have an obligation to investigate.

Section 205(3) of the Constitution provides that, “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.” In another case [Glenister II], the Court held that “the national police service, amongst other security services, shoulders the duty to prevent, combat and investigate crime”.

Further, the South African Police Service Act[2] establishes the Directorate for Priority Crime Investigation (commonly known as the Hawks) within the SAPS. The Hawks are empowered “to prevent, combat and investigate national priority offences, which in the opinion of the National Head of the Directorate need to be addressed by the Directorate”.[3]

With its usual flare, the Constitutional Court concluded:

‘The Supreme Court of Appeal held that the SAPS has the requisite power to investigate the allegations of torture. I would go further. There is not just a power, but also a duty. While the finding that the SAPS does have the power to investigate is unassailable, the point of departure is that the SAPS has a duty to investigate the alleged crimes against humanity of torture. That duty arises from the Constitution read with the ICC Act, which we must interpret in relation to international law… The Constitution and the ICC Act make it clear that, whilst empowered to investigate crime, the SAPS also bears a duty to do so.’

Limitations on the power to investigate

Possibly recognizing that its interpretation of international and domestic instruments creates an expansive obligation, the Court then sought to cabin the duty to investigate. The Court held that the duty to investigate is subject to at least two limitations.

The first limitation is the principle of complementarity and subsidiarity. ‘Simply put, South Africa may not investigate alleged crimes against humanity committed in another country by and against foreign nationals if that country is willing and able to do so itself.’

The second limiting principle is practicability. The government must consider, before investigating, ‘whether embarking on an investigation into an international crime committed elsewhere is reasonable and practicable in the circumstances of each particular case. That decision must be made in the light of all the relevant circumstances. None of these factors alone should be dispositive of the enquiry. Each case must be determined on its own merits and circumstances.’

The factors to be considered include: i) whether the investigation is likely to lead to a prosecution; ii) whether the alleged perpetrators are likely to be present in South Africa on their own or through an extradition request; iii) 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; iv) the prospects of gathering evidence which is needed to satisfy the elements of a crime; and v) the nature and the extent of the resources required for an effective investigation.

In some instances a ‘preliminary investigation’ may be necessary to test the reasonableness of undertaking a full-blown investigation. During the preliminary investigation, the authorities must determine “whether, all relevant considerations weighed, the SAPS acted reasonably in declining to investigate crimes against humanity committed in another country.”

Political Considerations and Foreign Relations

The Court rejected, quite abruptly, the submission that, “investigation would be potentially harmful to South Africa–Zimbabwe relations on a political front.” South Africa has a self-assumed obligation to prevent impunity and to ensure accountability for crimes against humanity, wherever they may have committed or wherever the perpatrator may be domiciled. Thus, ‘Political inter-state tensions are, in most instances, virtually unavoidable as far as the application of universality, the Rome Statute … is concerned.’

Conclusion

South Africa has an obligation to investigate allegations of torture by Zimbabwean authorities in Zimbabwe. The threshold for the police to decline to investigate, bearing in mind the particular facts and circumstances, was not met by the facts of the case. Further, there is a reasonable possibility that the SAPS will gather evidence that may satisfy the elements of the crime of torture allegedly committed in Zimbabwe.

 

Brad Cibane is an LL.M Candidate at Harvard Law School. He is a former clerk of the Chief Justice of South Africa.

[1] S.S. Lotus (France v Turkey) (1927) PCIJ Series A, No 10 (Lotus Case).

[2] Section 17C(1)].

[3] Section 17D(1)(a).

Is there hope for LGBT rights in in South Africa? Or are LGBTI people left to fend for themselves?

Brad Cibane

The African continent has a terrible human rights record, more so when it comes to gender and sex equality. Over 38 of the continent’s 54 countries punish homosexuality inhumane brutality. Gender rights are a mystic taboo in many parts of the continent; this is despite the continent’s progressive and elaborate human rights framework.

South Africa, on the other hand, has made a concerted effort to distinguish itself from the pack. It boasts a progressive constitution that guarantees equality before the law and prohibits discrimination on the grounds of sex or gender. The Constitution guarantees the right to have one’s dignity protected as well as right to bodily security and integrity.

In accordance with its obligations under the Constitution, the government of South Africa has developed a robust legal framework to ensure gender and sex equality.

For example, South Africa was one of the first few countries to permit gender reassignment and change of sex status in terms of the Alteration of Sex Description and Sex Status Act (49 of 2003). In 2006, South Africa became one of a few countries to permit same-sex marriage by passing the Civil Union Act.

However, in a continent so notorious for insidious prejudice, is practice meeting the laws? It is one thing to have rights on paper but quite something else to protect and enforce those rights.

The disparity between laws and practice is best illustrated by the case of Nadia Swanepoel. In 2012/13 Swanepoel, a resident of Johannesburg, applied for change of sex description in terms of the in terms of the Alteration of Sex Description and Sex Status Act (the Act). On several occasions officials at the Department stalled her application. Finally, she was informed that her application was rejected because she had not undergone genital surgery.

Without proper description, Swanepoel could not obtain an identity card identifying her as female. Therefore, she could not apply for employment or any of the other benefits she is entitled to as a citizen. More essentially, Swanepoel was being denied the very basic rights to equality and dignity. She decided to go on a hunger and liquid strike, risking death for her rights.

The officials at the Department of Home Affairs were misreading the law – whether intentionally or otherwise.

Section 2 of the Act provides that:

‘a person whose sexual characteristics have been altered by surgical or medical or by evolvement through the natural development resulting in gender reassignment, or any person who is intersexed may apply to the Director Gender or the National Department of Home Affairs for the alteration of the sex description to his or her birth register.’ (Own emphasis.)

Alteration of sexual characteristics through medical treatment is a minimum requirement under the Act. The applicant need not have undergone genital surgery.

trans_woman_on_hunger_strike_over_gender_change

Nadia Swanepoel. IMAGE: Mamba Online

The Act requires the applicant to be in the process of manifesting gender characteristics of their preferred gender through hormonal replacement therapy or other medical alternatives. Swanepoel is undergoing hormonal replacement therapy.

The case echoes loudly the principal challenge facing LGBTI persons in South Africa: while the laws may be good, often, practice does not match up. Public officials subject LGBTI people to astounding levels of prejudice and abusive behaviour.

In this instance, there was a promising twist of events. Gender DynamiX – a transgender organisation based in Cape Town – intervened and alerted several Department officials to the abuse.

The Minister of Home Affairs, Malusi Gigaba, and the Minister of Social Development, Bathabile Dlamani, intervened, personally shooing a pack of rather responsive public officials. The Deputy Secretary General of the African National Congress, Jessie Duarte, also intervened, calling for an immediate solution.

I enquired about the case and an activist at Gender DynamiX showed me elaborate progress reports by Department officials.

This case sets the pace for South Africa’s complicated relationship with LGBTI rights. Political leaders are putting their best feet forward, and ensuring that rights are taken seriously. The commitment to gender and sex equality must not only be a paper commitment!

The interventions by Gender DynamiX, Ministers Gigaba and Dlamani and Ms Duarte deserve approbation. However, these must not be isolated gestures. Minister Gigaba’s department must use this case as a catalyst for reform. He must introduce procedure to protect applicants from prejudice or incompetence by lowly officials within his department.

Mamba Online also tracked this story here.

Brad Cibane is an LL.M candidate at Harvard Law School. He edits this blog. Twitter: @Brad_Cibane

The United Kingdom’s Constitution after the Scottish independence referendum

Andrew Wheelhouse

On Thursday 18 September, Scotland voted to remain part of the United Kingdom. Unionists (such as myself) felt an odd mixture of emotions, chiefly a huge sense of relief and a gnawing sense of unease. Relief for the solid margin by which victory was achieved (45% yes, 55% no). Unease at the realisation that over 4 in 10 Scots voted to end arguably the most successful union of nations in the history of the world.

The vote will go down in history as a damning indictment of the British political establishment which very nearly lost the union. Westminster (the by-word for the British political establishment, named after the Palace of Westminster in which the Houses of Parliament are located) lurched from complacency to blind panic when, a week before the vote, the polls (briefly) suggested that the pro-independence campaign was ahead. A hasty vow was made for further political powers to be transferred to Scotland. A vow that may mark the start of the greatest period of constitutional upheaval the UK has seen since Irish independence was achieved in 1922.

The changing nature of the UK constitution

The UK has traditionally been a unitary state where political power is highly centralised. When Union between Scotland and England occurred in 1707, and Britain and Ireland in 1801, the other parliament would abolish itself and move its MPs to London. Westminster remained the sole legislative authority in the British Isles until the establishment of the Irish Free State in 1922 and the sole legislative authority within the island of Great Britain until 1998.

It was at this point that we saw the beginning of the process of ‘devolution’. This is the name given to the process of dishing out limited legislative powers from Westminster to regional assemblies in the other nations of the UK (Scotland, Northern Ireland and Wales). The UK has no written constitution so devolution was underpinned by the supremacy of the Westminster Parliament. The powers of the regional assemblies are those expressly granted to them in UK primary legislation (these vary from region to region but generally involve control over health, education etc and limited power over tax). Westminster retains sole control of reserved matters including defence, foreign policy and the constitution.

The idea was that by accommodating calls for regional autonomy, devolution would eliminate any desire for independence. This has proven to be demonstrably false. Creating separate national conversations means that there is less reason for people in different parts of the UK to care about what is going on elsewhere. In Scotland, the National Health Service in England is caricatured as some sort of neo-liberal corpse factory, while one anonymous British cabinet minister recently admitted, ‘I could not name more than three members of the Scottish government, which is bad. What’s worse, in fact, is that I could not care.’

But the elephant in the room, which has loudly announced its presence in the aftermath of the ‘No’ vote, is what is quaintly referred to as ‘the West Lothian question’.

The ‘sting in the tail’ of devolution

For all the talk of ‘regional autonomy’ the less cosy truth is that devolution is also about limiting English influence. England accounts for almost 85% of the population of the UK and 533 out of 650 MPs in Parliament. Its political clout is enormous. In recent years it has also returned proportionately more centre-right MPs for the Conservative Party, whereas Scotland and Wales mostly return centre-left MPs from the Labour Party. Yet England does not have devolution. It is still ruled entirely from Westminster. This results in the anomaly whereby English MPs cannot have a say on many matters affecting other parts of the country. Yet Scottish, Welsh and Northern Irish MPs may vote on matters that effect only England. England may have legislation forced down its throat by a governing party with a minority of English seats. This is the essence of ‘the West Lothian question’.

For a while this conundrum was not regarded as terribly important. It was seen as a technical issue of interest only to constitution geeks. But the Scottish referendum has brought matters to a head. English attitudes to the vote varied from confusion to irritation at what one commentator described as “a ludicrous, self-indulgent outburst of provincial pique”. The hurried ‘vow’ of the three main party leaders, pledging to quickly transfer more powers to Scotland in the event of a ‘No’ vote, announced in the week of the referendum with almost no consultation of English MPs, proved to be a step too far. There have been unequivocal demands from English MPs that England should not be left out of the devolution process. If this problem is not dealt with, then it threatens to derail the transfer of powers to Scotland, which would be disastrous. The lack of trust in the British political class was cited as the biggest reason for Scots voting ‘yes’ to independence.

The quirks of the British political and legal system make this problem anything but straightforward.

Although the Conservative Party has signalled its agreement to ‘English votes for English laws’ the Labour Party is loath to agree. Many of its MPs come from Wales and Scotland and without their votes, Labour may be left unable to govern in England should it win the next general election. The Liberal Democrats, the junior partners in the governing coalition, are of a similar view. The current arrangement leaves them holding the balance of power. English devolution may drastically reduce their influence. What then are the options?

A more federal Britain?

The problem with contemplating any sort of shift to a more federal UK is that it means confronting the nature of our Constitution and what we want it to achieve, which, ironically, is the antithesis of what Britain has always done in the past. Minimal constraints and flexibility are the hallmarks of the Constitution, muddling through and ensuring legal continuity being the supreme virtue.

It is in this spirit that some propose either a law or a binding convention that only English MPs be allowed to vote on matters that deal only with England. This would require minimal change but raises a number of questions. Would England-only acts be open to judicial review as is the case with the devolved legislatures? If not, why? Would it be proper for MPs from non-English constituencies to sit in the cabinet since UK government departments are responsible for all English policy-making? If not, we would never have another non-English Prime Minister (or at least one that did not hold an English seat). Would the upper chamber, the House of Lords, which contains peers from across the UK still scrutinise its legislation?

Thus despite being a temptingly simple solution, ‘English votes for English laws’ brings with it many issues that need to be settled. In light of this, some have suggested that England be granted its own parliament like the other ‘home nations’. This clearly raises the same issues mentioned above, but at least makes it more likely that they will be dealt with systematically. However, it also raises a larger existential question for the UK parliament. Westminster is seen as the very embodiment of political union itself, for good or ill. How would an English regional parliament work? Would it remain within the current Palace of Westminster and time-share the House of Commons with the UK parliament?

Some have proposed housing an English parliament elsewhere in the country or even taking it on tour. This represents an existential crisis for the ‘mother of parliaments’. Given the dominance of England in terms of population, what work would there be for a UK parliament to do? Would a separate English executive be required? Would UK ministers double up as English ministers (if so, see the above problems concerning non-English MPs)?

Some figures within the Labour Party have proposed an alternative to English devolution or federalism. They envisage the transfer of powers including tax powers to English regions and major cities. As a lasting solution to the West Lothian question it appears fanciful. The electorate emphatically rejected a regional assembly for the North-East of England in 2004. 9 out of 11 English regional cities voted not to have directly elected mayors in 2012.

In the midst of this confusion, the defeated Scottish nationalists are waiting in the wings, eager to exploit any delay in the transfer of powers to Scotland as the sign of a corrupt British political class reneging on its deal. There have been calls to take the wind out of their sails by shoving the extra powers for Scotland out of the door and kicking ‘the English question’ down the road for more sober deliberation in a constitutional convention. Given the fragile state of the union at present, it may not be the worst option.

Andrew Wheelhouse was called to the Bar of England & Wales in 2013. He has a BA in law from the University of Cambridge and an LLM from University College London. He is a former clerk of the Constitutional Court of South Africa.

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