SA government fails in bid to keep Zim report secret
By Alex Bell
14 December 2010
South Africa’s Presidency has failed in its attempt to keep a report on Zimbabwe’s 2002 elections hidden, after the Supreme Court of Appeal (SCA) dismissed the government’s refusal to release the document. See Supreme Court Judgement
The Mail & Guardian newspaper has been trying to have the report released since 2008, amid widespread speculation that it contained evidence showing that Zimbabwe’s 2002 disputed election was not free or fair. At the time the then President, Thabo Mbeki, commissioned Judge Sisi Khampepe and Deputy Chief Justice Dikgang Moseneke to visit Zimbabwe and report back on the state of the 2002 election. The report was handed over to Mbeki but never made public, although the former President insisted the electoral process in Zimbabwe was completely democratic.
The newspaper’s efforts to get the report were repeatedly denied and eventually the High Court was brought in to rule on the matter. The High Court then ruled in the newspaper’s favour in June this year and Acting Judge S. Sapire ordered the government to hand over the report within 10 days. But just as the deadline was due to expire the Presidency announced that it would seek leave to appeal.
But on Tuesday the SCA threw out the appeal, after a unanimous decision by five judges who said that there was no need to change the High Court’s findings on the matter. Appeal Judge Robert Nugent said there was no evidential basis established by the Presidency for refusing access to the report.
The SCA judgement said: “There are three people who have direct knowledge of the mandate that was given to the judges – Mr Mbeki and the two judges – and two people who have direct knowledge of how that mandate was executed – the two judges themselves. Theirs would naturally have been the best evidence on those issues but it has not been forthcoming, without explanation.”
“Open and transparent government and a free flow of information concerning the affairs of the state is the lifeblood of democracy,” the SCA judgement said.
Mail & Guardian editor Nic Dawes told SW Radio Africa that he is very pleased with the the court’s deicison, calling it a victory for transparency in South Africa.
“What the judgement makes crystal clear is that it’s simply not good enough for government officials to say they believe that information should be kept secret. They need to justify such decisions on the basis of genuine evidence and a proper understanding of the constitutional and legal framework. In that sense this is a victory for all South Africans,” Dawes said.
He added: “The judgement also makes it clear that secrecy cannot be a default position by the government.”
In court papers, the Mail & Guardian argued that with new elections coming up in Zimbabwe it was important to see whether Robert Mugabe continued to hold office “by virtue of alleged illegalities and irregularities stretching back to at least 2002.” Dawes said that accessing the report “will provide us all with a much better understanding of what was going on in Zimbabwe ahead of the enormously controversial 2002 elections and what our president Mbeki was told about those circumstances by two senior judges.”
The government has argued that the report was ‘confidential’ and a “record of the cabinet and its committee.” They said it contained information “supplied in confidence by or on behalf of another state, for the purpose of assessing or formulating a policy,” and that the content of the report was not in the public interest. The government has also argued that the report would lead to a deterioration of relations between the two countries, as South Africa is the facilitator in Zimbabwe’s ongoing political crisis.
The newspaper has in turn argued that the report is of enormous public interest, as the 2002 elections were marred by vote-rigging, intimidation, violence and fraud by Robert Mugabe’s government, despite South Africa’s contention that the election was free and fair.
Dawes said on Tuesday that the government could take its appeal a level higher, by approaching the Constitutional Court. But he said he hopes it doesn’t come to that, because the SCA judgement clearly outlines the constitutionally of the High Court’s decision.