22 April 2015

Foreigners under attack: We need new names* (or none at all)

Originally posted on Conversation Zimbabwe

“All good people agree,
And all good people say,
All nice people, like Us, are We
And every one else is They:
But if you cross over the sea,
Instead of over the way,
You may end by (think of it!) looking on We
As only a sort of They!”
Rudyard Kipling, Debits and Credits
I open with a quote by a man famous for his literary work on Asia. A non-Asian man himself, Rudyard Kipling was born in what is now India and though he left at the age of 5, his body of work tells us that India and Asia never left him. Perhaps he, like all of us, lived his years appreciating that we are all foreigners here, as well as there.
To me, Kipling’s words resonate. I identify as a Zimbabwean living and working in South Africa. I am Zimbabwean by birth and descent. My father is a Zimbabwean, as was his father’s father, and thus so am I. My South African identify document boldly labels me “Non-SA Citizen.” It tells you that I have lived here long enough, but it reminds you that I am not – at least on paper – a South African, even if part of my ancestry is. I am a kwerekwere.
When your heritage straddles more than one line, crosses rivers and even a sea, you, as with everyone (even without knowing) are a foreigner everywhere you go. It is this knowledge that has made me a passionate opponent of xenophobia, not only in my fatherland, but even more fervently here in South Africa.Proudly xenophobic
For many in South Africa, “xenophobia” became a buzzword in May 2008 when there were violent rampages targeting foreigners across the country. Meanwhile, others continue to deny the existence of xenophobia in the country. This was not the first time that foreigners were targeted. It was, however, the first that saw widespread attacks. May 2008 was the culmination of decades of simmering tensions and deepseated hatred. The deep historical roots of this social ill cannot be ignored.
On 11 April 2015, as the recent spate of xenophobic violence was flaring up, Business Day editor Songezo Zibi wrote, “I haven’t seen xenophobia in South Africa, just a lot of violent and passive aggressive hate of Africans from outside our borders.” The inherent irony and contradictions within that statement were not immediately apparent to him as he defended his viewpoint from detractors.
Zibi unwittingly highlighted, however, a key characteristic of xenophobia in South Africa; that the primary victims are black Africans. For its uniquely anti-African premise, this xenophobia is often referred to as afrophobia. In 2013, writing on discrimination in South Africa, I noted that racialism and xenophobia can be and are inextricably linked.[iii] The recent outbreak of violence against people from other African countries speaks to this.
Two weeks prior to Zibi’s remarks, Goodwill Zwelithini kaBhekuzulu, the reigning monarch of the Zulu nation, made King-Goodwill-Zwelithini-KwaZulu-Natal-South-Africa-590x887remarks that many have interpreted as xenophobic. In his speech, Zwelithini lamented the influx of “illegal immigrants” who violate and undermine the law. He went further to suggest that foreigners must go back to their countries. For these remarks, some have gone so far as to accuse him of inciting violence against foreigners. One example is Tim Flack from the South African National Defence Union laying a charge of incitement and sedition against the King at the country’s Human Rights Commission. Debate rages as to whether Zwelithini intended to incite violence. The alleged nexus between his words and the resultant violence aside, the reality on the ground is that people are being attacked for being African foreigners. Indeed, to be incited into violence based on someone else’s words, the listeners themselves must have borne these sentiments and perhaps felt vindicated by them.
Dispelling myths and uncovering the irrationality of xenophobia
The reasons for these attacks vary. I will focus on three of the most common and interrelated beliefs.
First, some argue that the country is suffering under the weight of “millions of illegal immigrants.” Estimates vary from 500000 to over 4million. However, most of the estimates are purely anecdotal. Data from the Forced Migration Studies Programme at the University of the Witwatersrand in Johannesburg and Statistics South Africa (Stats SA) are most reliable.
The Forced Migration Studies Programme estimated that in 2010, South Africa had a total foreign population of between 1,6 and 2million, of which the number of undocumented migrants was not measured.[iv] In 2013, Stats SA estimated that there are between 500 000 to 1 million undocumented migrants.[v] Relying on the higher end of the scale, if, as Stats SA estimate, there are approximately 1 million undocumented migrants, this would amount to a little under 2% of the population.
The second, and related defence of xenophobia is that these “illegal foreigners” are stealing jobs from locals. This does not compute.
Research by the Migrating for Work Research Consortium (MiWORC) in 2014 found that 82% of the working population was “non-migrants.” MiWORC also found that 14% of the working population was recent “domestic migrants,” i.e. people who had moved between provinces in the past five years. The research lastly found that only 4% of the working population could be classed as “international migrants.” It should be emphasised that that 4% does not just represent migrants from Africa.
Using MiWORC’s and other data, Africa Check, a non-profit organisation that promotes accuracy in public debate, helped dispel the notion that “illegal foreigners” are stealing jobs. Interestingly, research by the Gauteng City-Region Observatory shows that international migrants contribute positively to the economy in various ways, including through employing South Africans.350
The third motivator for violence against foreigners is that they are the cause of the crime problem in the country. This, according to the Institute for Security Studies, is a myth.[vi] Stats SA’s National Victims of Crime Survey released in 2014 shows that 95% of the 30000 households surveyed said South Africans committed crime in their area. Also, South Africa’s crime rate, especially violent crime, has long been comparatively very high.
Even if the above three reasons had merit, it would still not justify violence against foreigners. My view is nothing justifies the brutality that has come to be associated with afrophobia in the country.
Importantly, and worth highlighting, not all xenophobia manifests in violence. Attributing xenophobia only to a few – “the angry, ignorant and criminal poor” – is a reckless refusal to take responsibility. This is done, not only by the citizenry, but also by the government in statements that reinforce the belief that xenophobia is “just a crime problem.” Interestingly, while xenophobia is frequently distilled, sanitised and theorised about, all forms of racism are quickly rejected and condemned in South Africa. Racism must not be linked to criminal conduct for it to be seen as racism. The emphasis on the criminal aspect of xenophobia in many ways reduces the seriousness of what is a grave societal problem.
The criminal aspect of xenophobic violence should undoubtedly be addressed. However, addressing the xenophobia as a crime alone is just a symptomatic approach to addressing a deeper societal issue.
Going back to the start
Xenophobia in South Africa, as in all contexts, is a multifaceted social ill with deep histCrooked_Trails_Map_Africaorical roots. The country’s racially segregated past is, in my mind, a key contributor to the pervasive xenophobia we are witnessing today. The words of a good friend, Luvuyo Mandela, resonate today, and always,
We are all foreigners […] 
We come from a history where [we] were systematically & methodically taught to hate anything that was different to [us].”[vii]
In a country where the success of black people is still often viewed with suspicion (with people often saying, “s/he must be related to a political big wig” or “probably an unlawful beneficiary of BEE” or “S/he is a tenderpreneur”) one cannot ignore the patent racialism that informs verbal, emotional, physical and psychological violence against “other” Africans. Indeed, there is a major psychological (and psychosocial) element to the afrophobia and its periodic violent manifestation that must be addressed.
At a peace march in Durban, First Lady Thobeka Madiba-Zuma encouraged people to “tolerate each other.” Commendable as it was that the First Lady was firm in pronouncing herself against xenophobia, preaching tolerance is not the right avenue. “Tolerance,” put simply, means “put up with something you don’t like.” We must be calling on people to do more than tolerate. People must embrace diversity and inclusivity and respect the rights of all.
With a Constitution touted as having one of the most progressive Bills of Rights in the world, on paper South Africa is welcoming. However, South African society must be reminded of the country’s core values. The challenge will be in getting people to recognise the humanity & dignity of “others.” What seems like an obvious and easy ask is, as the ongoing violence shows, a mammoth task for a society in transition.UNHCR pic

  • Part of the title is an ode to NoViolet Bulawayo, an expatriate Zimbabwean author whose book “We need new names,” tells the story of settling abroad and realising that no matter how familiar things may get, you may always remain a foreigner.

  • A shorter revised version of this piece appears in Foreign Policy magazine

Ottilia Anna Maunganidze
[iii] OA Maunganidze, “No Black and “other” Africans in the Rainbow: A Nation Divided,” Umuntokanje, (2013)
[iv] T Polzer, “Migration Fact Sheet: Population Movements in and to South Africa,”
Forced Migration Studies Programme, (2010)
[v] Stats SA relied on information on documented migrants from the Department of Home Affairs
[vi] ISS Press Release: Xenophobia demands decisive and principled leadership, 17 April 2015,
[vii] L Mandela, “We are all foreigners somewhere,” Dropthewhy, (2015)!We-are-all-Foreigners-Somewhere/c1k5f/553232100cf2251855a5e8bf

15 April 2015

Xenophobia: The wound that won't heal

To attribute violent manifestations of xenophobia only to a few - "the angry ignorant poor" - is a reckless refusal to take responsibility. This is done, not only by the citizenry, but also by a government that is out of touch with its people and all within its borders.

Xenophobia in South Africa, as in all contexts, is a multifaceted social ill with deep historical roots.

In a country where the success of black people is viewed with suspicion, one cannot ignore that patent racialism that informs verbal, emotional, physical and psychological violence against "other" Africans. Xenophobia in SA is intertwined with racialism and racism.

But as you condemn the afrophobic violence, don't fall into the vicious trap of stereotyping all South Africans & being xenophobic yourself.


04 March 2015

Tsika tsika: Puritanism, moral decay and fingering in Zimbabwe

PachiShona “tsika” means two things. As with many Shona words, depending on context and how you pronounce it, it can mean, “to trample, tread or step on,” and in the very same breath it can mean “manners, moral conventions and/or good behaviour.” My choice of title is intentional in its double meaning and irony. Whether I mean, “trample on morality” or “manners are manners,” is for you to decide… I have learnt from the many Zimbabwean journalists and sub-editors who, possibly with their tongues firmly in their cheeks, write of probing and fingering much to the dismay of Mills & Boon fanatics and to loud tongue-clicking and vigorous headshaking (albeit all for different reasons!)
As a third culture kid, my “Zimbaweanising” journey has met many speed bumps. The biggest of these is my constant interrogation and often full frontal (I swear I’m not vying for a job at the Daily News!) attack of the Zimbabwean stance on morality and the out-in-the-public conservatism of Zimbabwean society. Coupled with my rabidly anti-patriarchal stance, it’s no wonder many of my relatives look at me as the wayward one, the one asina tsika (without manners). After all, I address men as if they were my equals, I question the subjugation of women in customs, I vehemently reject the modern manifestation of polygamy and I chortle when I hear that a Christian rapper performed at the première of “50 Shades of Grey” in Harare.        And at my tender age, unmarried!
According to many in Zimbabwe, I also don’t dress appropriately. My skirts don’t dust the ground I walk on, I only wear headwraps as a fashion statement and only when Iwant, I bare my arms and I like the contour of my not-so-skinny body in skinny jeans. Those offending contours and curves!
My refusal to conform to certain conventions notwithstanding, I am a respectful Zimbabwean. I carry myself in a dignified manner, respect my elders and my peers and, apart from a side eye I struggle to control, I express myself as society expects. Or so you’d think!
Nevertheless, as I reflect, I am reminded of the day I was reprimanded by an old woman at my grandmother’s funeral for wearing black slacks. This woman, whose face I can no longer remember and whose name (and unsolicited advice) I never asked for, approached me to say it would be “disrespectful” of me to go anywhere near my grandmother’s coffin and grave “dressed like that.”
I scoffed.
There she was in her heavy polycotton frock deep in Chivi South (surely Mbuya Nehanda didn’t wear a long pleated skirt and a heavy blouse under the scorching Zimbabwean sun?) telling me that was not dressed Victorian enough for mygrandmother’s funeral.
On that day, I trampled on her view of manners and in her mind I was dancing on my grandmother’s grave. I wasn’t. I wouldn’t. But I digress…
I write of ironies and paradoxes, I write of Zimbabwe
FARMER8Societies, through culture and socialisation, shape how people dress, how we must speak (especially women), how we must conduct ourselves around others, and what we can and cannot find acceptable. Put simply, society makes the man. The man makes society. But all too often, people break away from the mold and seek an identity apart from their society: whether within or without. It is this deviation that can sometimes contribute to the evolution of a society. What were once norms become abrogated by disuse or lack of necessity and are replaced with new conventions. That is the natural order of things. Yet, as I reflect on the (d)evolution of Zimbabwean society, I see little change. At least recently. I imagine the rules we live by – perhaps many of our own creation, but others designed for us – were entrenched over a century ago and because they are convenient for patriarchy and misogyny, they remain.
One need only read the stories in our dailies to see how tsika is defined and evaluated in Zimbabwean society today.
  • A woman in a short dress gets attacked for “dressing like a whore”Screen Shot Herald in a society that polices what women should wear while leaving the oversize viscose clad men to carry on with their fashion crimes. (In the same week, The Herald asks people if wearing a mini-skirt makes you a prostitute and my eyes roll back to 1986…)
  • A child raped by her uncle quietly becomes his wife.
  • A man kissing a man is big and deplorable news in a society that vehemently rejects homosexuality and thus all forms of intimacy between people of the same sex – especially if they are men.
  • A daughter is “damaged” and brings shame to her family for falling pregnant out of wedlock, but her sperm donor is reminded that virility makes the man.
  • You will watch Korean shorts on ZTV because those bloody westerners always have sex in their shows and ours is a society that speaks, sees and hears no sexual evil… yet you will get lambasted by your aunts for your man cheating on you because “what kind of woman can’t please her man?”
  • Your morality is quickly assessed by complete strangers based on what you wear and how low you bow or kneel when you greet your elders – especially the male ones.
The mind boggles. It’s 1896 in 2015. 
kaguviReconciling puritanism with an evolving society
I often wonder if the pervasive (if not outright offensive) breed of Zimbabwean puritanism is of our own making or if it has been influenced by the conservatism of 19th century christianity. The more I wonder, the more I lean to the latter.
There is great irony in a people who pride themselves in being free from the yoke of settler colonialism clinging so fervently to what is so clearly Victorian puritanism. We have burnt our nhembe neshashiko (loincloths) and regard them as backward. Dare a woman in a short anything walk the streets of faux-cosmopolitan Harare! We are a people who will proudly tell you we have no traditional dress as we walk around with our student companion-taught perfectionism in our polyester long everythings fresh from China.
Tell me you don’t question your own conservatism sometimes. That you don’t wonder what your forebears used to wear. That you’ve never pondered how a woman likeNehanda Charwe Nyakasikana could possibly have been the leader and guide of our revolution if our society was so deeply patriarchal. Tell me that you never wonder whether your definition of indecency was not flung by others on people before you to rid them of their identity. The savages!
A loincloth is Haram.
Barebreasts are primitive.
Yet there many of you were with fully charged batteries taking photos and videos of young women crawl in what I assume they hoped would be a seductive and/or sexy way for their supper. I assume conservatism goes to sleep at 18.59.
As the world evolves, somewhere between the Limpopo and Zambezi (and elsewhere on the continent of course) are a people stuck in 1896 Britain while screaming sovereignty and all sorts of catchy phrases like “We shall never be a colony again!” For what’s left to colonise when you have succeeded in colonising the minds? Of making strapping 19th century Brits out of the Africans whose languages and customs you systematically sought to eradicate. And where eradication failed, succeeded in making them seem inferior or moulded them just so. What’s left to colonise?
Before some assume that I am only preaching to the deep-in-the-roots choir, I am not. In shaping our society, we must strike a balance between that which sets us apart as Zimbabweans, while engaging critically in an increasingly globalised world with a unique march
For, as we all know too well, the “modernists” among us will say, “Lobola is too outdated and expensive… Lets have a lavish WHITE wedding rather!” without a hint of irony. Elsewhere, others will chant, “Let’s go to church and cure ourselves of these beliefs in ancestral spirits and their ability to communicate with us.” “Lets pray to resurrected zombies and deities instead.”
My plea is not to reject tsika entirely. Far from! I have highlighted some aspects that I find problematic, but know and appreciate that tsika and hunhu form cornerstones of our society. Mindful of this critical space that tsika occupies it is imperative that we redefine it constructively. We must not lose who we are, but we must also not allow who we are to be defined in strict unrelenting terms.
We are the custodians of our culture.
It is ours to build and keep.
••• •••

The biggest irony of all is I wrote this piece with the ease with which the language of a far away place rolls off my light tongue. I wrote this piece in English, because as I lament my peoples and their customs, the language that I can best express myself in remains the language used to oppress them.

PS: I only put “fingering” in the title because it always makes for a catchy eye-raising title. Chete chete.
••• •••
Ottilia Anna Maunganidze
Screenshot 2014-10-23 23.02.23

[Originally written for and posted on the Conversation Zimbabwe website.]

04 February 2015

Ongwen at the ICC: victim turned perpetrator

4 February 2015
After almost 10 years on the run, one Ugandan rebel leader is finally in the custody of the International Criminal Court (ICC). Dominic Ongwen, of the infamous Lord’s Resistance Army (LRA), surrendered in early January and was transferred to The Hague, where the ICC is based, on 20 January. Ongwen’s first appearance at the ICC was on 26 January, making him the first LRA stalwart set to face trial for the group’s activities at the ICC.
On 8 July 2005, the ICC issued an arrest warrant for Ongwen. He is charged with three counts of crimes against humanity and four counts of war crimes. His alleged crimes include murder, enslavement, inhumane acts of inflicting serious bodily injury and suffering, cruel treatment of civilians, intentionally directing an attack against a civilian population and pillaging.
Speaking in Acholi, a language widely spoken by the people of northern Uganda, Ongwen calmly confirmed his identity to Judge Ekaterina Trendafilova of Pre-Trial Chamber II. The judge pronounced that she was satisfied that Ongwen has been informed of the crimes which he is alleged to have committed, and of his rights under the Statute – including the right to be informed of the proceedings in Acholi as a language that he fully understands and speaks.
Uganda has shown a willingness to ensure that those who commit international crimes are prosecuted
Ongwen was transferred to the ICC despite Uganda having both the capacity and willingness to prosecute him. It remains possible that Ugandan authorities may challenge the admissibility of the case at the ICC on this basis, however improbable.
Uganda is one of a few African countries that have criminalised war crimes, crimes against humanity and genocide. Uganda has also established a specialised judicial chamber to deal with, among others, international crimes. The International Crimes Division (ICD) of the High Court is the only judicial chamber of its kind in Africa.
Thus, at the very least, Uganda has shown a willingness to ensure that those who commit international crimes are brought to justice. It has also staffed the ICD with capable personnel. Indeed, prosecuting Ongwen would have been a great opportunity for Uganda and the ICD. However, there are reasons why the ICD cannot prosecute Ongwen for the specific crimes with which the ICC has charged him.
First, in respect of crimes under the jurisdiction of the ICC, the ICD can only deal with cases arising after Uganda’s International Crimes Act came into force. The law, from 2010, does not apply retrospectively. The crimes that the ICC prosecutor alleges Ongwen to have committed mostly occurred prior to 2010 and would thus fall outside the temporal jurisdiction of the ICD.
Like hundreds of other children, he was trained as rebel soldier
Some commentators have noted that the ICD could potentially charge Ongwen under the country’s Geneva Conventions Act. However, these charges would not be the same as those levelled against him by the ICC. For starters, the Geneva Conventions Act only relates to war crimes, and the ICC has charged Ongwen with crimes against humanity that fall outside the ambit of the Geneva Conventions.
Further, in respect of crimes committed by non-state actors, the Common Article 3 of the Geneva Conventions would apply. This Article relates only to grave breaches of the Geneva Conventions. Not all the war crimes that Ongwen is charged with meet this threshold, such as intentionally directing an attack against a civilian population and pillaging.
Now that Ongwen has made his first appearance before the ICC, there are other issues to consider. Ongwen was a child in 1990 when he was recruited into the LRA, and later became the commander of the group’s Sinia Brigade. His is an interesting case of victim turned perpetrator. It is, however, not unique.
The Justice and Reconciliation Project, which interviewed Ongwen’s family and victims in northern Uganda, reports that when he was 10, Ongwen was abducted by the LRA on his way to school. Like hundreds of other children, he was trained as rebel soldier – a strategy employed by Joseph Kony to increase combatants in his insurgency in northern Uganda. Ongwen was so efficient and fearlessly loyal to his superiors that he was eventually ‘promoted’ to become a key member of the ‘control altar,’ the section that represents their core leadership and which is responsible for devising and implementing LRA strategy. This includes standing orders to attack and brutalise the civilian population.
Ongwen’s trial at the ICC has the potential to reignite a semblance of hope to the victims
The conscripting or enlisting of children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities, is a war crime under the ICC Statute. It is clear that Ongwen was then a child soldier and therefore one of hundreds of thousands of victims of the conflict. The charges by the ICC Prosecutor levelled against Ongwen are, however, not related to the period that he was a child soldier – but rather, specifically on the individual responsibility he bore as a brigade commander of the LRA, where he ordered the attacks and killings of villagers in northern Uganda.
While his victimhood is not contested, the primary concern of the trial at the ICC would be his conduct as an adult of sound mind. As the case proceeds to the next phase of confirmation of charges, the judges will be interrogating whether there are substantial grounds to believe that Ongwen consciously and deliberately committed and ordered certain crimes.
These procedural concerns of the court are what will inevitably separate Ongwen as a victim from Ongwen as an alleged perpetrator. In any case, the ICC excludes itself from exercising jurisdiction over any person under the age of 18 years. There will be no chance that the ICC will adjudicate on the crimes that Ongwen committed as a child soldier. It is likely, though, that his victimhood may be seen as mitigating circumstances. This is not an immediate concern for the court at this stage, but it will perhaps be at the judgment and sentencing stage, should Ongwen be found guilty.
The impending trial of Ongwen at the ICC has the potential to shift the perceptions of the court, which has seen very turbulent times in the recent past with the collapse of the Kenyatta case and repeated allegations of bias against Africa, although it seems that debate only relates to trials of African heads of state. Ongwen’s case is different.
Until his surrender, he was the second in command of the LRA after Joseph Kony. He is thus a very high profile defendant in the cases arising from the Ugandan situation. Moreover, Ongwen’s trial at the ICC has the potential to reignite a semblance of hope to the victims of the conflict in northern Uganda, whose plight over the past 30 years seems to be easily forgotten by the international community.
Allan Ngari, Researcher, Transnational Threats and International Crime Division, and Ottilia Anna Maunganidze, Researcher, Office of the Managing Director, ISS Pretoria

10 November 2014

South Africa's police must investigate Zimbabwe torture allegations

On 30 October 2014, the Constitutional Court of South Africa handed down its judgment in a landmark case for international criminal justice.
The appeal related to the responsibilities of the South African Police Service (SAPS) under domestic and international law to investigate acts of torture, as a crime against humanity, that were allegedly committed in Zimbabwe.
The decision, by South Africa’s highest court, reaffirms the obligations set out in the South African Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act) regarding investigation and prosecution of international crimes.
In March 2008, the Southern African Litigation Centre (SALC) submitted a dossier to the Priority Crimes Litigation Unit of the National Prosecuting Authority (NPA) detailing allegations of torture in Zimbabwe. The NPA took no action, indicating that they could only do so if the police investigated the allegations and laid charges.
The NPA, in June 2009 – through the acting national director of public prosecutions ­­at the time – informed SALC that the police would not investigate the allegations. SALC and the Zimbabwe Exiles Forum then approached the High Court to order the police to investigate as required under the ICC Act.
The case was the first to be brought in terms of South Africa’s ICC Act
The High Court – in what has become known as the Zimbabwe torture docket matter – ordered the prosecuting and investigating authorities to investigate documented crimes against humanity, including acts of systematic torture, committed in Zimbabwe in 2007. The SAPS unsuccessfully appealed that order to the Supreme Court of Appeal, and then again to the Constitutional Court.
The case, which is the first to be brought in terms of South Africa’s ICC Act, provides substantive and practical content to South Africa’s Rome Statute obligations. The Constitutional Court found that South Africa's prosecuting and investigating authorities ignored South Africa’s international and domestic obligations in their initial refusal to investigate. The decision offers prospects of justice for those who allegedly suffered torture in Zimbabwe. It also sends out a clear message that South Africa must be guided in its foreign relations by its domestic and international law commitments.
In a unanimous judgment, the court concluded that the SAPS must investigate the complaint because under the Constitution, the ICC Act and South Africa’s international law obligations, the SAPS has a duty to investigate the crimes against humanity of torture allegedly committed in Zimbabwe. The court held that the duty to investigate international crimes arose in instances where the country in which the crimes occurred is unwilling or unable to investigate and if, on the facts and circumstances of the particular case, an investigation would be reasonable and practicable.
The decision offers prospects of justice for those who allegedly suffered torture in Zimbabwe
In this instance, the court found that there was no evidence that Zimbabwean authorities were willing or able to pursue an investigation. It also found that it would be reasonable and practicable for the SAPS to investigate the complaint given the proximity between South Africa and Zimbabwe, the likelihood that the accused will be present in South Africa at some point, and the reasonable possibility that the SAPS will be able to gather evidence that may satisfy the elements of the crime of torture.
Furthermore, the court held that while the principle of non-intervention in another state’s territory must be observed, this would not be violated by an investigation conducted exclusively within South Africa. Given the urgency of this matter, the court did not remit to the High Court, but rather issued an order requiring the SAPS to investigate the complaint.
The case sets an important precedent. It states that South Africa’s law provides for a form of universal jurisdiction in respect of international crimes. Further, it underscores the responsibilities of the police and the prosecution where such matters are brought to them. Importantly, it reaffirms South Africa’s commitment to ensuring international criminal justice and will serve as a guide for South African authorities regarding future international criminal justice investigations.
The case also teaches three important lessons.
The first is that the South African authorities would not themselves have initiated the case in accordance with their statutory and treaty obligations: it has taken the work of civil society for it to be brought to the relevant authorities. (This may have as much to do with a lack of capacity in the respective police and prosecution agencies, as with a lack of political will or priority given to international criminal justice by the executive.) The Zimbabwe torture docket matter demonstrates the willingness and ability of African civil society actors to use domestic implementing legislation to request and, if necessary, compel their governments to act in conformity with their international treaty obligations.
The case reaffirms South Africa’s commitment to ensuring international criminal justice
Second, having the necessary domestic laws in place is central to ICC complementarity efforts, domestic prosecutions and broader justice processes aimed at closing the impunity gap. It is only because of South Africa’s ICC Act that the case stood a chance of being brought to the relevant courts, and it remains the means by which the South African authorities must now pursue the investigation of Zimbabwean torturers.
The third lesson is that such cases are complex in various ways. The torture docket matter teaches that it takes time and effort to sensitise officials about the relevance of these cases before positive action is taken. Moreover, particularly where universal jurisdiction is involved in asserting a case against a foreign national for crimes committed abroad, sensitivities about foreign relations are likely to be triggered. The fact is, international criminal justice cases are invariably novel and complex, often implicate political considerations, and take time.   
What remains to be seen is whether the SAPS will indeed follow through with an investigation; whether evidence will be gathered speedily and expertly; and whether arrest warrants will be issued for and executed against alleged perpetrators. It is hoped that positive action will make up for the lost time already occasioned by the state’s varied but unsuccessful efforts to appeal the High Court’s decision.
Only such positive action will ensure that the Constitutional Court’s groundbreaking judgment is given the practical effect it deserves; and only through effective policing and prosecution will South Africa ensure that the impunity gap for crimes committed in Zimbabwe is filled. 
Max du Plessis, Advocate, ISS Consultant and Associate Professor at the University of KwaZulu-Natal and Ottilia Anna Maunganidze, Researcher, Office of the Managing Director, ISS Pretoria

This article was originally posted on the ISS website

06 October 2014

"It's my culture"... but is it?

  • Over the past few months, I have engaged in several conversations around culture, traditions and their abuse. I have also engaged on the topic of misconstruing culture and of labeling something that isn't part of a society's norms and mores as "culture" simply because of occasional practice or because it is perceived today as "backward" 
  • One of the reemerging themes is that "our" culture (and by our I mean southern African culture) is inherently patriarchal and there's an underlying current of abuse. Before I venture deeper into problematising this notion, I must clarify that "southern African culture" is a misnomer. For starters, southern Africa is not a homogenous mass of sameness and I won't speak of it as such. While some practices are common amongst people who occupy similar spaces and whose geographical proximity contributes to shared experiences, such a culture, in my mind, simply does not exist. In fact, even within cordoned off spaces like the nationstate, a plethora of peoples exist and live under sometimes convergent, but often different norms and mores. The "culture" of a Karanga in Nemavuzhe, is unlike that of Zezuru in Buhera. Indeed, even within the "same" group there are differences... The Zulu in Matatiele and the Zulu in Hluhluwe are not one and the same. The reality is people like neat labels for neat boxes, so people and their cultures are clumped for convenience. 
  • Whatever the real case may be, one thing remains quite clear to me, some of the shared customs are largely misunderstood and/or abused. We are told that ours is a patriarchal culture... yet when I look at the family structure within my paternal group of people (the southern karanga), I note that my late grandmother was a matriarch in every meaning of the word. I note that decisions on various issues related to *my* life can not be made without consulting the women who borne me (yes that's plural... for my mothers and her sisters) and my father's sisters (vana tete). 
  • It is against this last point that I seek to explore the traditional custom of lobola/roora/paying of the bride "price." A custom that has been abused to a point where its current manifestation deviates significantly from what was initially imagined. From my understanding, lobola, in and of itself,  is not inherently problematic. The abuse of the tradition by greedy patriarchs is what makes it increasingly problematic in today's world. Only today do you hear of exorbitant "fees" and talk of "Our child has a Masters" so she is "worth" 500 head of cattle. Only today. Back in the day, lobola was intended to bring two families together in celebration. You gave to your wife's family a gift, which was agreed upon, that symbolised the coming together of her family with yours. It was not an expensive gift that was out of your family's financial means. No. Auditors did not have to be called in to indeed show that your family could not afford what was asked of you. Your future wife was not livestock at market. As a groom you did not ponder how you would use your wife once "bought." No. The beer was brewed, the cattle slaughtered, the drums heated. It was a negotiation in good faith and not an auction. If you intended to have a big wedding feast at a later date after the lobola then you contributed with cattle. The significant beast given as lobola was the childbearing cow (mombe yehu mai) because this was the, put simply, gift that would keep on giving.

  • Traditionally, as I have come to learn, one must not finish paying off lobola unless he intends to part ways with his wife. One continually "pays" the lobola to the wife's family. A cow this year, a blanket next. Not big things, small gestures and tokens of appreciation throughout the marriage.
  • Lobola was never intended to be part of a "culture" that abuses and subverts women. Perhaps its time we rethink how our developing societies have destroyed good practices and made them into cultural monstrosities. 
  • Veering off from lobola and into other aspects of culture, I must point out that there are some highly problematic aspects that are rooted in abusive patriarchal norms in which women are products and possessions. These, some contend, are an importation and not part of what the culture of our peoples was. Is. But it is our present reality. Where a woman calls her husband "baba/daddy" and lives in near servitude "for the sake of the children" she borne. It is in the exclusion of many women from discussions. It is in the physical and emotional abuse that is wrought on women and that they must put up with because "you are a woman." In aunts telling female children that they are "broken" or "damaged goods" when they fall pregnant as if they had sex on their own... where female virginity defines the worth of a woman, but male virginity doesn't. A man who impregnates is, after all, virile. But the fertility of a woman is only relevant when she bears the man the children his virility needs... 

I am going off on a tangent now... as do thoughts when they come streaming in... so I'll stop here for now.