Willie Spies & Ben Freeth | Dossier containing twenty four affidavits submitted to SAPS and NPA for investigation following SCA judgment
Zimbabwe: Crimes against humanity case to be submitted to National Prosecuting Authority and SAPS
Crimes against humanity perpetrated in Zimbabwe under President Mugabe have been documented consistently by authoritative human rights organisations since the Gukurahundi massacres of 1983-1987 and during the farm invasions, but to date none of the perpetrators has been brought before a court of law, either in Zimbabwe or elsewhere. This situation is about to change.
Today a case which leads evidence of human rights abuses committed against commercial farm workers and farmers was submitted to South Africa’s National Prosecuting Authority (NPA) and the South African Police Service (SAP) by civil rights organisation AfriForum.
According to a decision by South Africa’s Supreme Court of Appeal on November 27, the SAPS has a legal obligation to investigate crimes against humanity, regardless of where they took place.
The affidavits and evidence gathered relate to people resident on Zimbabwean commercial farms that were specifically protected by an international court order issued by the Southern African Development Community (SADC) Tribunal in 2008.
The landmark court case for which the protection order was issued was Mike Campbell (Pvt) Limited and 78 others v the Government of the Republic of Zimbabwe.
The affidavits recorded vicious beatings, imprisonment on spurious or fallacious charges in filthy, inhumane jails, the shooting of farm workers and farmers, the theft of homes, farmers’ and farm workers’ houses being set on fire or petrol bombed and death threats.
Additional criminal activities included the theft or destruction of personal property, the theft or destruction of crops that were still in the ground or had been reaped, the deliberate starvation, maiming or theft of livestock and the destruction of the livelihoods of protected persons.
In all of the commercial farming districts, the modus operandi has been the same, indicating that a deliberate strategy was masterminded at a senior level and adopted by the perpetrators of the crimes who included government ministers, members of the police force and army personnel.
“From the evidence presented, it is abundantly clear that a widespread, systematic and sustained attack has been taking place against this civilian group by the ZANU PF government,” said Willie Spies, AfriForum’s legal adviser.
“The crimes committed were in flagrant disregard of Zimbabwean court orders that should have protected the victims and of the SADC Tribunal court order,” he said.
Crimes against humanity
According to Article 7 of the Rome Statute of the International Criminal Court, acts committed as part of a widespread or systematic attack direct against any civilian population, with knowledge of the attack, constitute crimes against humanity.
The list includes murder, torture, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, rape, persecution against any identifiable group, enforced disappearance of persons or other inhumane acts of similar character intentionally causing great suffering or serious injury to body or to mental or physical health.
In a report released by the General Agricultural and Plantation Workers’ Union (GAPWUZ) during November 2009, If Something is Wrong – the Invisible Suffering of Commercial Farm Workers and Their Families due to ‘Land Reform’, violations against farm workers in their survey included:
Torture (65%), death threats (54%), assault (44%), forced to watch beatings (43%), abduction (30%), children forced to watch beatings (29%), held hostage (24%), arrest without charge (20%), unlawful detention (13%), sustained permanent injuries (11%), murder 2%.
The dossier contains twenty four affidavits, six from former commercial farmers and the remainder from their former farm workers. It also contains evidence of police reports and medical reports, where available, as well as photographic evidence of crimes against humanity.
In one affidavit demonstrating police brutality, seven labourers were picked up by police officers, beaten throughout the journey to a named police station and while in custody were beaten with an armoured cable and batons.
Most of the affidavits contain reports of torture directed against the deponent and/or a member of his or family, or colleagues. Examples include being beaten over the head with a rifle butt which resulted in a fractured skull, or being beaten on the soles of the feet with a sjambok (leather whip), logs, cables or iron bars. This form of torture is known as falanga and can be fatal.
One of the farm workers reported being beaten over the head with an iron bar and then, after his attackers had urinated on him, they threw him onto a fire they had lit in an open pit.
In two incidents, deponents who were shot and seriously wounded required prolonged medical treatment. At one farm, 15 workers receive gunshot wounds, while on another farm, a police officer shot a worker who was attempting to help his employer remove personal property from the farm. He sustained severe injuries and required seven operations as well as a skin graft.
Each attack committed on the deponents was pursuant to, or in furtherance of the fast track land reform programme. In every case, the beneficiaries of these SADC-protected commercial farms – or their employees – were involved in the persecution of the deponents.
The case lists a total of 58 known people implicated in crimes against humanity on these SADC-protected farms, all of whom warrant investigation.
The names are divided up under two headings: Direct Responsibility and Command Responsibility.
Those directly responsible include a senator, a previous government minister and his son, a Reserve Bank deputy governor, police officers of various ranks and army personnel. Those with command responsibility include ministers, two members of Joint Operations Command (JOC) and senior police officials.
South African Supreme Court Ruling of November 27, 2013
In a landmark decision for local and international justice handed down on November 27, 2013 the South African Supreme Court of Appeal ordered the South African Police Service to investigate high level Zimbabwean officials accused of committing crimes against humanity.
In its judgment, the Court made it clear that perpetrators of systematic torture can be held accountable in South Africa, regardless of where the offending acts took place.
In 2008, the Southern Africa Litigation Centre (SALC) submitted a dossier to the National Prosecuting Authority (NPA) containing evidence of the involvement of key Zimbabwean officials in perpetrating crimes against humanity in relation to thetorture of opposition Movement for Democratic Change (MDC) party members in March 2007. The SALC called on the National Prosecuting Authority (NPA) and the SAPS to initiate an investigation into the alleged crimes but they refused to do so.
The dossier contained evidence of severe physical assaults, including the use of baseball bats, water-boarding and electrical shocks being applied to the genitalia by Zimbabwean officials.
After the High Court ruled in favour of the SALC and the Zimbabwe Exiles’ Forum, the decision was appealed to the Supreme Court of Appeal. For further information see here.
Precedent – United Kingdom
In the United Kingdom in 2010, Justice Ouseley found that a 39-year-old Zimbabwean woman who admitted taking part in savage evictions of commercial farmers from their homes and beating up their farm workers, was guilty of crimes against humanity.
The woman, known only as SK, confirmed she had been part of a gang of thugs from President Mugabe’s ZANU PF party and that she had beaten up to ten people while their homes burnt down. She also admitted that on one occasion she had beaten up a woman so badly she thought her victim would die.
Justice Ouseley said he was satisfied that the two farm invasions in question had constituted crimes against humanity and likened the woman’s role to a concentration camp guard who followed Nazi orders during the Holocaust.
SK went to Britain illegally in 2002, but did not claim asylum until six years later. Her bid for refugee status was rejected on the grounds that her own violent actions in Zimbabwe disqualified her from humanitarian protection in the UK.
Justice Ouseley said that “The violent occupation of farms and forcing people, including farm workers from their houses, was part of the State violence, formal and informal, used to crush opposition and those who were not regime supporters.”
“We are satisfied that the intention behind these invasions in general, and it applies as well to the two in which the Appellant participated, was to cause great suffering or inflict serious physical or mental injury. The aim was to drive people from their homes and their work, and to do so in such a way that they would be so cowed by their experience that they would neither return to their homes nor foment opposition outside. It would also deter resistance on other farms or in other potential areas of opposition. The aim was achieved by the mob violence of beatings administered to men and women, burnings and lootings in a deliberately brutal and terrifying experience.”
At a lavish party to mark his 85th birthday on February 28, 2009, President Mugabe contemptuously dismissed the SADC Tribunal and the rule of international law: “Some farmers went to the SADC… but that’s nonsense, absolute nonsense, no-one will follow that. Our land issues are not subject to the SADC Tribunal… the few remaining white farmers should quickly vacate their farms as they have no place there.”
Statement issued by Willie Spies Legal Representative AfriForum Pretoria, South Africa and Ben Freeth Spokesperson SADC Tribunal Rights Watch Executive Director, December 2 2013