The findings of the Khampepe report that there was violence and intimidation in the 2002 Zimbabwe elections have widespread implications not only for a torture case but also for later rape cases involving 84 Zimbabwean opposition supporters, which were lodged in South Africa. The later offences occurred at the time of the 2008 elections in Zimbabwe.
This week, Zimbabwe opposition leader Morgan Tsvangirai said the 2008 elections could have been far more peaceful had the Khampepe report been made public in 2002. International pressure, he said, could have had a beneficial effect in the intervening six years.
The report, compiled by the high court judges Sisi Khampepe and Dikgang Moseneke and kept secret for 12 years, lends credence to the victims’ claims.
The South African Police Service (SAPS) is obliged to investigate crimes against humanity “where the country in which the crimes occurred is unwilling or unable to investigate”, the Constitutional Court ruled on October 30. The case before it involved members of the Zimbabwean opposition Movement for Democratic Change (MDC), who alleged that they were arrested and tortured by members of Zanu-PF and state intelligence.
The case was brought by the Zimbabwean Exiles’ Forum and the Southern African Litigation Centre in 2008, six years after the South African government endorsed the 2002 election – despite the report by the judges that the election was not free and fair.
In 2012, 84 female MDC supporters submitted reports and affidavits to the South African police, claiming they had been raped in their homes or while being held at Zanu-PF camps.
Evidence
Zimbabwe’s prosecutor general, Johannes Tomana, told the Mail & Guardian this week the country was willing to investigate allegations of torture, rape or murder, and that a number of investigations relating to the 2008 elections period were under way. When asked whether there had been successful convictions, he said the outcome depended on the evidence before the court. “If the evidence indicates they are free, then they will be allowed to go,” he said.
The rape cases were taken up by New York-based nongovernmental organisation Aids-Free World after being approached by Zimbabwean NGOs after the 2008 elections because some of the women had contracted HIV. According to a report by Aids-Free World, 31 women tried to report their rapes to the police and, of those, 13 said the police “either did nothing at all or explicitly refused to write a report”.
Without a case number, it was impossible to obtain a medical exam for proof of rape, making criminal action impossible, the report said.
Aids-Free World’s lawyer, Seth Earn, speaking from Washington, said they have informed the South African police they would like the investigation to continue in light of the Constitutional Court judgment.
“These cases are complicated and there has been a long delay,” he said this week, adding that two women had since died and some of the initial complainants had withdrawn from the action, wanting to get on with their lives.
“But what amazes me is how many women want to continue with the case, despite being concerned about intimidation or further violence.”
He also said some of the women had never told their husbands that they had been raped. “They want justice and for the message to be sent that these kinds of crimes cannot occur with impunity.”
Similar tales
Earn said they first took the case to the International Criminal Court prosecutor and the United National Commissioner for Human Rights, without much success. “[But] after the 2012 high court torture judgment went in favour of the torture case, we decided to bring the matter to the South African police.”
The women, who live in different parts of Zimbabwe, tell similar tales, with only the extent of their humiliation differing.
Their affidavits show that, in almost all the cases (96%), the men made a political statement before or during the rape stating they were targeting the women because they were supporters of the MDC.
Women reported being accused of “selling out the country”, and in three provinces perpetrators made additional comments about “selling the country to the whites”, making references to former British prime minister Tony Blair and former United States president George Bush.
Of the women involved, 30 held official positions in the MDC, 12 women’s husbands served as chairpersons or secretaries of their districts or wards, and eight women’s fathers were officials in the party.
In Mashonaland East, the leader of the Zanu-PF base claimed that he had been in Harare and had been instructed by President Robert Mugabe that, “if you meet an MDC supporter, do whatever you want to them”, according to one of the women. At a camp in Masvingo, an alleged rapist told a woman that “they were following orders”.
In some cases, the women were assigned as a “wife” to six men, before and during the March 2008 elections.
Thabo Mbeki
Many were forced to watch their husbands, children and parents being killed or tortured before they were raped, or returned to find their relatives had been raped. Four reported that their relatives were burned alive.
Ben Freeth, a Zimbabwean farmer and human rights activist, said this week they would consider taking action against the South African government if legal advice indicated that they had a chance of success. Any action would be based on the fact that former president Thabo Mbeki had not acted on the Khampepe report, and he was at the time sitting on the UN Security Council and was the Southern African Development Community mediator on Zimbabwe.
Lawyers interviewed this week believed the only grounds for legal success would be under the civil claim of delict, which is an intentional or negligent breach of duty of care that inflicts loss or harm.
AfriForum legal adviser Willie Spies, who successfully represented Zimbabweans who lost farms as a result of land grabs, believed there would be little chance of claimants obtaining damages.
A Webber Wentzel lawyer, Ben Winks, said he thought there would no recourse against South Africa internationally. Moray Hathorn, a partner in Webber Wentzel’s pro bono practice, said: “In so far as the violent acts leading up to the election would constitute crimes against humanity, these would have been crimes under South African law [by virtue of the domestication of the Rome Statute]”, possibly providing a foundation for delictual claims against Zimbabwe under our law.
South Africa’s liability to victims would have to be based on unlawful breaches of its international obligations that caused or contributed to the injury to the victims.
The SAPS had not responded to questions about the status of their investigations into the cases at the time of going to print.