The Mail & Guardian this week won its lengthy court battle to obtain a copy of a report commissioned by former president Thabo Mbeki on Zimbabwe’s 2002 elections.
On Tuesday five judges of the Supreme Court of Appeal unanimously agreed that the M&G should be given access to the report.
The newspaper requested a copy of the report from the presidency in June 2008 under the Promotion of Access to Information Act (PAIA). When its request was refused, the newspaper filed an appeal, again applying terms of the PAIA, which the presidency again declined.
The M&G turned to the courts in May 2009, asking that the refusal be set aside. The North Gauteng High Court ruled in favour of the newspaper in June this year, but the presidency appealed the judgment in the Supreme Court of Appeal.
Mbeki commissioned the report, ahead of Zimbabwe’s controversial 2002 presidential elections, from judges Sisi Khampepe and Dikgang Moseneke. The president asked them to assess the country’s constitutional and legal situation.
Allegations of vote-rigging and reports of violence and intimidation marred the elections, which President Robert Mugabe won.
The M&G said in its court papers that widespread reports of electoral irregularities made the report commissioned by Mbeki of vital public interest.
The newspaper argued that, although several years had passed since the election, the report might provide information about whether the elections were free and fair, as South Africa at the time declared they were. This had a bearing on both the legitimacy of Mugabe’s presidency and the 2011 Zimbabwe presidential elections, the M&G argued.
The presidency argument
Opposing the M&G, the presidency argued that Moseneke and Khampepe had gone to Zimbabwe as diplomats and were received as such and that diplomacy allowed for information to be exchanged “in confidence”. But the appeal court ruled there was no factual evidence that the judges were acting as diplomats; a role not in keeping with the independence of the judiciary.
The court ruled that the claims by the presidency’s information officers had put up no concrete reasons for withholding the report.
Appeal court Judge Robert Nugent found that the presidency had failed to justify its opposition to the M&G‘s bid. “In my view no evidential basis has been established by the appellants for refusing access to the report,” he wrote.
“It might be that the report contains information that was received in confidence — but that has not been established by acceptable evidence.”
Nugent’s judgment referred to the Bill of Rights, which, he said, “guarantees to everyone the right of access to ‘any information that is held by the state'”.
“Open and transparent government and a free flow of information concerning the affairs of the state is the lifeblood of democracy,” Nugent wrote.
M&G editor Nic Dawes said that, in addition to providing valuable insight into the state of Zimbabwe in 2002, the judgment also “sets out crucial constitutional principals of freedom of information and limits to the power of the state”.
“What it makes crystal clear is that it’s simply not good enough for government officials to assert that they believe that information should be kept secret,” Dawes said. “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.”
The presidency has seven days to hand a copy of the report to the M&G or to lodge another appeal, which would take the case to the Constitutional Court.