More questions raised over ‘missing’ Zim election report

By Alex Bell
SW Radio Africa
26 February 2014

More questions are being asked about a Zimbabwe election report that has gone ‘missing’ from a top South Africa judge’s chambers, with observers calling for the report authors to speak out.

The report was written by judges Sisi Khampepe and Dikgang Moseneke in 2002, after they were sent by then President Thabo Mbeki to report back on the elections in Zimbabwe that year. The report was never released to the public, although Mbeki endorsed the polls as a democratic process.

The elections however were seriously marred by violence and other irregularities, and in 2008 the Mail & Guardian newspaper went to the courts to have the document released. It argued that the evidence contained in the report was of public interest.

That report has now disappeared, a development that has coincided with plans by the Presidency to appeal against an order to release the document to the newspaper.

That order, the latest in a series of rulings confirming the newspaper’s rights to access the document, was made last year by High Court Judge Joseph Raulinga. He is one of the few ‘outsiders’ who has seen the contents of the report after taking a ‘judicial peek’ at the document in 2012. Raulinga ruled that there was enough evidence in the report to show that the electoral process in Zimbabwe in 2002 was neither free nor fair.

Political commentator Clifford Mashiri said Wednesday that the missing document should not delay the legal case to have the details released, saying: “In the age of the internet and computers, surely there will be more than one copy. Someone will have more than one copy.”

Mashiri also echoed calls made by other observers for the report’s authors to speak out.

“The judges could be called on to give a glimpse of what they wrote. The courts have ordered that the document be released, so I don’t see why the judges themselves can’t be interviewed or give their views,” Mashiri said.

Efforts by SW Radio Africa to contact Sisi Khampepe and Mail & Guardian lawyer Dario Milo are ongoing.

To contact this reporter email [email protected] or follow on Twitter

4 Responsesto “More questions raised over ‘missing’ Zim election report”

  1. Chimbwido Warvet says:

    The so-called top South Africa judge’s chambers is comprised of Boer justices who have vested interests in the goings on in Zimbabwe. They have been known to be unhappy with the land reform that has taken place in Zimbabwe and are scared stiff that it may happen in South Africa. To protect their interests and that of Boers who still hold over 75 percent of the country’s land, they wanted a Tsvangirai led government installed in Zimbabwe. That Tsvangirai failed, has been an issue of concern to Boers in South Africa.

    Well the Boers of this country should know that Tsvangirai lost the election and nobody has the power to change what the people of Zimbabwe decided for themselves. It is too little too late and besides, they have no business in dealing with a domestic issue that affects Zimbabweans. In other words, the South African justices should mind their fcking business and should never be allowed to meddle in the domestic affairs of Zimbabwe. I am working on it.


      ‘I am working on it’ Laughed so hard my ribs hurt for two days !

      In January 2014 the South African Police Service (SAPS) applied to the Constitutional Court for leave to appeal the Supreme Court of Appeal’s (SCA) decision that deemed SAPS competent to investigate crimes against humanity committed in Zimbabwe. The Southern Africa Litigation Centre (SALC) and the Zimbabwe Exiles Forum (ZEF) have opposed the appeal and the Constitutional Court will hear the matter on 19 May 2014. Despite just and legally sound verdicts from the North Gauteng High Court and the SCA, the tenets of the case have been misunderstood by some.

      Firstly, it must be emphasised that the case is being brought in terms of South African legislation, the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act) and not in terms of the international statute, the Rome Statute of the International Criminal Court. The ICC Act domesticates the offences of genocide, crimes against humanity and war crimes, making them crimes under South African law.

      Secondly, because it is South African legislation, and so operates independently from the Rome Statute, the applicability of the ICC Act is not limited to states parties to the Rome Statute. Section 4 (1) of the ICC Act clearly states that, “any person who commits a crime is guilty of an offence” and section 4(3) goes on to prescribe jurisdiction over, “any person who commits a crime contemplated in subsection (1) outside of the territory of the Republic…”.Therefore, the fact that Zimbabwe is not a party to the Rome Statute is irrelevant.

      Thirdly, issues of jurisdiction have been misunderstood. To fully appreciate jurisdictional grounds, one must clearly distinguish between prescriptive, enforcement and adjudicative jurisdiction. South Africa derivesprescriptive jurisdiction, the power to make laws, from section 4(1) of the ICC Act. South Africa also has mechanisms that allow for enforcement jurisdiction, the power to use measures to ensure that the rules made under prescriptive jurisdiction are adhered to. This includes the power to investigate crimes under the ICC Act. Lastly, South Africa has adjudicative jurisdiction, the power of a state’s courts to settle contested matters and apply the law, which ensures that a court may preside over the prosecution of these crimes (in this case, where the requirements in section 4(3) of the ICC Act have been satisfied).

      Fourthly, and this is linked to the different types of jurisdiction, the requirement of physical presence for investigations has also been misunderstood. Physical presence in the country is not strictly required for purposes of investigation in South Africa. When the ICC Act is read in light of the abovementioned types of jurisdiction it becomes clear that section 4(3) confers only adjudicative jurisdiction hence, only theprosecution of perpetrators is conditioned on their physical presence in South Africa. The competence to investigate all crimes (a form of enforcement jurisdiction) is drawn from section 205(3) of the South African Constitution, the South African Police Service Act 68 of 1995, and the National Prosecuting Authority Act 32 of 1998.

      Lastly, the alleged violation of Zimbabwean sovereignty has been raised. However, this case deals solely with a South African piece of legislation, placing obligations on South African officials, to investigate in South Africa. The SCA judgment does not require that SAPS investigate on Zimbabwean soil, and so there is no violation of Zimbabwean sovereignty. Whilst this case is the first to be brought in terms of the ICC Act, the principle of South African courts having jurisdiction over crimes committed outside of South Africa by foreigners is not novel and should not be regarded as problematic. South Africa has other legislation that grants jurisdiction over crimes committed outside of its borders.[1]

      In terms of the broader picture, theoretically, SAPS could be obliged to investigate other crimes against humanity, however, because there must be evidence in South Africa, the situations in which this would apply are rather narrow. For example, the chance of finding evidence of Syrian human rights abuses in South Africa is highly unlikely, and so the power to investigate would not be present. In SALC’s case the geographical proximity and most importantly the existence of witnesses, evidence and the anticipated presence of suspected perpetrators in South Africa are other important linking factors that make crimes against humanity perpetrated in Zimbabwe actionable in South Africa.

      Stripped of these misunderstandings, the merits of the case are much more clearly framed and it is hoped that the South African authorities will be compelled to do their duty – QUITE RIGHT !

    • Yepec says:

      The Report is a South African Document, written by South African Judges sent to Zimbabwe by a South African President and as long as the issue is being played in South African courts, there is no meddling in the domestic affairs of Zimbabwe..

      If the country is doing such a good job and given the diverse segments of the South African population Zimbabwe’s good deeds are like a light on top of a mountain cannot be seen from afar. Let the South Africans indulge themselves in wasting more of their money, time and other resources..

      However, it baffles the mind that the whole country can regard that which is good for bad, what an image of South Africa?.These happenings in the courts of South Africa are a good, public relations for Zimbabwe that no person in his or her wildest dreams, could have come up with. The budgets of the Ministry of Information and Broadcasting plus that of Tourism when put together cannot do such a good job for the country.

      As long as the issue is being played on the other side of the Limpopo River, it cannot be called meddling in the domestic affairs of Zimbabwe.

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