Battle for Zim report in final round
GLENDA DANIELS JOHANNESBURG – May 20 2011 00:00
The Mail & Guardian’s three-year battle to gain access to a report by two
senior judges on Zimbabwe’s 2002 presidential election finally reached the
Constitutional Court this week.
The report was commissioned by former president Thabo Mbeki, who sent judges
Dikgang Moseneke and Sisi Khampepe to Zimbabwe to investigate
“constitutional and legal challenges” in the build-up to that country’s
disputed and highly controversial 2002 poll (See accompanying story below).
The M&G requested a copy of the report under the Promotion of Access to
Information Act in 2008, but was turned down by the presidency.
The newspaper then won a high court victory, subsequently confirmed by the
Supreme Court of Appeal, ordering President Jacob Zuma to disclose the
report.The Constitutional Court hearing on Tuesday represented Zuma’s final
appeal against this order. Judgment was reserved.
Questioning by a panel of nine judges (Deputy Judge President Dikgang
Moseneke and Judge Sisi Khampepe recused themselves as they were the authors
of the report) threw up the question: Did their two colleagues travel to
Zimbabwe as “special envoys” on a diplomatic mission, as “the embodiment of
the president”, as claimed by the presidency?
Marumo Moerane, senior counsel for the presidency, told the court that all
the democratic presidents of South Africa had mediated in Zimbabwe’s
turbulent political climate, lending sensitivity to the judges’ report.
The presidency has maintained that the judges’ assessment was a “Cabinet
report”, which was exempt from disclosure under the Act. The M&G disputes
this because, among other reasons, the president is far more than the head
of Cabinet.
The paper also argues that the judges’ role cannot be regarded as that of
special envoys on a diplomatic mission, which would also make their report
exempt from disclosure under the Act, because such a mission would conflate
the functions of the executive and the judiciary.
Jeremy Gauntlett, senior counsel for the M&G, said the case raised “the
worrying issue of the separation of powers”.
Pretending they were presidential envoys, he said, was a case of trying to
“squeeze into a tiny Cinderella’s slipper to make them envoys”, when, in
reality, “they are judges”.
“Pariah regimes”
In an affidavit before the court, M&G editor Nic Dawes said: “What is
concerning is that the presidency prioritises its relations with the Mugabe
regime over its clear constitutional and statutory obligations [to
disclose]. It is this attitude which would fracture international relations,
not the disclosure of ‘innocuous’ (the president assures this court)
discussions.
“Should the international community come to view the presidency’s loyalties
as lying not with the rule of law but with pariah regimes, the world’s
confidence in South Africa’s democratic commitment would be destroyed.”
The sequence of events in the case, highlighting government’s determination
not to disclose the contents of the judges’ report, is as follows:
In September 2008 the M&G lodged an internal appeal as provided for in
Paia. It was dismissed by the presidency in November that year.
In June 2010, after the M&G had applied to the North Gauteng High Court,
Judge Stanley Sapire ordered the presidency to hand over the report within
seven days. He ruled that there was no evidence that the report contained
information that was obtained in confidence.
In December that year, following an appeal by President Jacob Zuma, the
Supreme Court of Appeal again ruled in the M&G’s favour. Judge Robert Nugent
said that the travails of Zimbabwe and “the consequences for South Africa
were so notorious that it would be myopic not to accord them judicial
notice”.
Nugent also cited the matter Brümmer v Minister for Social Development,
emphasising the importance of grounding South Africa in the values of
accountability, responsiveness and openness. And he cited legal academic
Etienne Mureinik, who captured the essence of the Bill of Rights when he
described it as “a bridge from the culture of authority … to a culture of
justification” and a “culture in which every exercise of power is expected
to be justified”.
Zuma’s appeal was dismissed with costs.
Victory is in the eye of the observer
Robert Mugabe’s victory in the 2002 presidential election ended all doubt
about the extent to which his party was willing to use violence and defy
world opinion to keep him in power.
Mugabe’s inauguration, on a Sunday morning in the gardens of State House,
was boycotted by Western diplomats. A pall hung over much of the country.
Citizens’ hope for change had been snuffed out by a combination of violence
and cynical electoral laws.
The first foreign visitor to arrive in Harare to congratulate Mugabe was
Jacob Zuma, then South Africa’s deputy president.
According to a dispatch from the country’s foreign affairs department, Zuma
“congratulated President Mugabe on his re-election, based on the preliminary
reports” of a South African election observer mission that described the
election result as “legitimate”.
But it was an election rejected by much of the world. The European Union
sanctions, which Mugabe’s party has now made the centre of its anti-Western
propaganda, were imposed in the run-up to the 2002 polls after Zimbabwe
kicked out the head of the union’s observer mission, who had entered the
country on a tourist visa. Mugabe would also later withdraw from the
Commonwealth, which suspended Zimbabwe in 2002 over the conduct of the
election.
He won with 56% of the vote, 400 000 more votes than Movement for Democratic
Change leader Morgan Tsvangirai.
There were various observer groups overseeing that election, but their
verdicts followed old alliances, with African missions mostly backing the
outcome, whereas Western observers rejected it.
The Organisation of African Unity said that “in general the elections were
transparent, credible, free and fair”. An observer from Namibia, which has
been one of Mugabe’s most dependable allies, said the poll had been
“watertight, without room for rigging”.
But rights groups pointed out that more than 30 people were killed in
political violence, more than a thousand polling agents and monitors were
detained and regulations on the eve of voting made a free poll impossible.
Apart from the violence, Zanu-PF set about reversing the voting trends of
the 2000 general election, when it lost virtually every urban seat in the
first poll contested by the MDC.
Zanu-PF drew up a raft of regulations deliberately designed to throttle the
urban vote. In 2002, aware that it could not regain support in the urban
areas, it made sure that votes in these areas would be whittled down.
A report on the elections by ZESN, a coalition of local election observer
groups, recalls how the government had slashed the number of voting stations
in urban areas and other MDC strongholds by up to 50% since the 2000
elections.
At the same time, about 644 new voting stations were opened in rural areas.
In almost half the rural constituencies the opposition was denied the
opportunity to monitor voting and their agents were attacked and harassed.
Only about 400 of the more than 12 000 monitors who applied for permission
to oversee the polls were accredited — not enough for the more than 4 500
polling stations across the country.
Despite laws allowing voters still in the queue at the close of the polls to
vote, polling stations in urban centres were shut down and thousands turned
away by police.
Urban voters, many of them either tenants or residents of informal
settlements, were forced to produce passports and utility bills to prove
they had lived in their constituencies for at least 12 months.
In Zanu-PF’s rural strongholds villagers hoping to vote had to be registered
by traditional leaders, who were firm Mugabe supporters.
A law was passed on the eve of the elections stripping people of foreign
ancestry of citizenship, effectively denying many people, mostly in urban
areas and farming districts, their voting rights. — Jason Moyo