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For four years, rule-of-law activists tried in vain to persuade the National Prosecuting Authority (NPA) to investigate crimes against humanity under South Africa’s ICC Act against several senior Zimbabwean officials for allegedly torturing opposition officials inside Zimbabwe.
Yet last week the NPA agreed, after just a few months, to investigate crimes against humanity under the same act against ousted Malagasy president Marc Ravalomanana, who is exiled in South Africa, for alleged complicity in the fatal shooting of several demonstrators by his country’s presidential guard in February 2009.
How does one explain the markedly different reactions to the two requests?
The ICC Act is a remarkable law which domesticates the Rome Statute of the International Criminal Court (ICC), by allowing South Africa to prosecute war crimes, crimes against humanity and genocide, anywhere in the world.
The alleged crimes need have nothing to do with South Africa, except that the perpetrators are in, or might visit, South Africa, enabling them to be arrested.
In 2008, the Southern African Litigation Centre (SALC) asked the NPA to investigate the Zimbabwe torture case.
After dragging its feet for years, the NPA eventually declined to pursue it, saying the alleged perpetrators were not in South Africa, that it would be impossible to conduct investigations in Zimbabwe because the government would not co-operate, and an investigation would jeopardise the government’s mediation efforts in Zimbabwe.
So the SALC appealed to the courts, and a few months ago the North Gauteng High Court ordered the NPA to investigate the Zimbabwe case. The NPA is appealing the order.
By contrast, within just a few months of the NPA receiving a request from victims and relatives of victims of the Madagascar shootings in February 2009, advocate RC Macadam, the NPA’s senior deputy director for public prosecutions, wrote to their attorney on July 30 this year to say he had agreed to investigate “a reasonable suspicion that crimes against humanity may have been committed”.
Ravalomanana’s South African lawyer, Brian Currin, responded by saying his client would welcome a probe to help clear his name.
He noted that Ravalomanana himself had already asked the ICC to investigate the February 2009 shooting incident because he believed the Madagascar court that had convicted him of complicity in the shooting had been a politically motivated kangaroo court.
Currin said he believed the Malagasy government headed by Andry Rajoelina – who ousted Ravalomanana in a coup in March 2009 – was behind the application to the NPA. Perhaps. But what about the NPA?
Why has it agreed to pursue the case when it still does not want to pursue the Zimbabwe case?
The NPA might argue that it has a better chance of securing a prosecution in this case because Ravalomanana is resident in South Africa and also because the Madagascar government would be more than willing to co-operate with the NPA investigation.
Yet, as Judge Hans Fabricius convincingly pointed out when he ordered the NPA to investigate the Zimbabwe case, anticipated difficulties or otherwise should not be the criteria for deciding whether or not merely to investigate the possibility of a prosecution.
So is there perhaps more to these contrasting NPA responses than such technical differences?
As in Zimbabwe, South Africa’s government is deeply involved in the regional efforts to resolve the political crisis in Madagascar caused by the March 2009 coup.
South Africa’s preferred solution is for both Rajoelina and Ravalomanana to withdraw as candidates from the imminent presidential elections. Ravalomanana would then be allowed to return to Madagascar, which Rajoelina has so far prevented him from doing.
But Ravalomanana has firmly rejected this deal, saying it would deny him his democratic and constitutional right to run for president if he chooses.
This week, South Africa will bring Rajoelina and Ravalomanana together for the second time in a fortnight to try to persuade them to agree to a deal, sources say.
Is it mere coincidence that the NPA has decided to pursue an investigation against Ravalomanana at this very moment? Or a veiled threat?