There is some irony in the fact that election day in Zimbabwe, March 29, marks the passing of a year and a day since the police arrested more than 100 people after raiding the Movement for Democratic Change’s (MDC) Harare headquarters. It will be a year exactly since many of those detained were subjected to the most excruciating mental and physical pain of being tortured in a variety of ways.
The Southern African Litigation Centre this month submitted a dossier to South Africa’s National Prosecuting Authority (NPA), calling on it to investigate, with a view to prosecuting, senior Zimbabwean police officials who, we allege, have committed crimes against humanity by systematically using torture against those they believe to oppose the Zanu-PF-led government.
South Africa has a law — the Implementation of the Rome Statute of the International Criminal Court Act — that enables the authorities to prosecute foreign nationals for crimes against humanity committed outside its territory if the suspect “after the commission of the crime, is present in the territory of the republic”.
International crimes are often said to be the most egregious type of crime. This, some argue, explains the special obligations placed on all states to ensure accountability for crimes in this category in a way that does not apply to ordinary crimes.
But if international crimes are more egregious it is not because they are necessarily more horrific — involving more bloodshed, more violence and a greater number of victims, even though this is often the case. Can it really be said that a mass murder perpetrated by a single individual is somehow less horrific and less deserving of censure than a pattern of coordinated killings committed by police? There are not necessarily any fewer victims or less suffering or bloodshed.
Rather, international crimes, such as crimes against humanity, are especially egregious because they often are facilitated by the state or a state-like entity and perpetrated by agents of the state or of a state-like entity against people over whom they have authority.
Often those who perpetrate such crimes are immune from prosecution in their own country because they are in positions of power. The victims get no redress and no compensation.
This seems to be the case with much of the violence that has happened in Zimbabwe. It appears to be instigated, or at the very least actively endorsed, by people in the highest levels of authority in that country.
A few days after the assaults on the MDC and civil society leadership on March 11 2007 — and a few days before the events of March 28 — President Robert Mugabe is reported to have said of victims of police violence: “If they repeat it, they will get arrested and get bashed by the police … If they want to fight the police, the police have the right to bash,” referring to perceived and actual supporters of the opposition.
That those who did the “bashing” had such support would on its own make it unlikely that punishment would follow. But the almost total collapse of the rule of law in Zimbabwe makes that even more certain. The executive repeatedly ignores court rulings, meaning that even if a sanction were to be issued by the judiciary, no real action would be taken to enforce such a ruling.
In such circumstances it seems especially important to use the South African law to bring perpetrators to justice in this jurisdiction.
To pretend that the Southern African Litigation Centre petition was not timed with the impending elections in mind would be a lie. The dossier has been submitted in the hope that it may start a process that could bring to account those who have committed crimes against humanity in Zimbabwe. But it is also done in the hope that it will deter further crimes.
This action should signal to those who would use violence during this election that such violence will be the subject of scrutiny and may lead to similar attempts to prosecute the perpetrators in South Africa.
The timing of the petition to the NPA also highlights the extent to which violence and threats of violence have been instrumental in the retention of power by Zimbabwe’s current leaders.
Observers say there has been less violence in the run-up to this election. But they predict that violence will be unleashed — as per previous Zanu-PF strategy — following the elections against those who did not do the ruling party’s bidding.
In any case, the recent beatings of Progressive Teachers’ Union of Zimbabwe members in Zanu-PF party headquarters and assaults of those campaigning for the MDC suggests that if there ever were a disinclination to use violence against opponents in the run-up to the election, it has disappeared.
Even if one were to accept the premise that state-authorised violence has waned in the weeks preceding the elections, there is still no doubt that its shadow looms large. Almost every day top-ranking security officials make statements threatening to use whatever means at their disposal to secure continued Zanu-PF rule. The sustained, repeated and consistent use of violence by state agents on previous occasions makes these no idle threats.
Election observers need to know that it is this state-instigated and authorised violence that sets the stage for these elections.
Nicole Fritz is the director of the Southern Africa Litigation Centre