The presidency was told on Tuesday, for a second time, to hand over within seven days a report on Zimbabwe’s 2002 presidential elections prepared for Thabo Mbeki by judges Sisi Khampepe and Dikgang Moseneke.
The presidency is not rushing to comply, so it is worth once again traversing the principles at issue.
“The importance of this right [of access to information] in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid.
To give effect to these founding values, the public must have access to information held by the State. Indeed one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency ‘must be fostered by providing the public with timely, accessible and accurate information’.”
Those are not the words of some Assangeist transparency activist but of the Constitutional Court, ruling in favour of the Mail & Guardian‘s Stefaans Brümmer as he sought to have extended the time frame in which official Âdecisions to withhold state information can be challenged.
Quoted by presiding Judge Robert Nugent, those words now also form the cornerstone of the unanimous judgment of the Supreme Court of Appeal (SCA) in dismissing an application by the presidency to have overturned the original high court decision ordering the release of the report.
We are building the case law in favour of openness brick by judicial brick.
The judgment is embarrassing for the presidency, not least because it so thoroughly eviscerates the contradictory papers they put up.
It is embarrassing for a more fundamental reason too.
At the heart of the ruling is the complete failure of the presidency to provide substantive reasons, backed by credible evidence, for keeping the report secret. Instead we were offered “bald assertions” that judges Khampepe and Moseneke had been sent on a quasi-diplomatic mission and had been given confidential information by the government of Zimbabwe.
There is no paper trail, no mandate letter, no minuted meeting setting out the terms of reference for this sensitive mission. There is no clarity about the crucial issue of how judges might have taken on such an executive sounding mission and no affidavits by the judges themselves or by Thabo Mbeki.
In apartheid era cases, Nugent reminds Zuma, courts were often asked to accept such assertions: “The affidavits that have been filed by the appellants are reminiscent of affidavits that were customarily filed in cases of that kind.
In the main they assert conclusions that have been reached by the deponents, with no Âevidential basis to support them, in the apparent expectation that their conclusions put an end to the matter.”
Things have changed. It is no longer enough for state officials to say “trust us, we know best”. On the contrary, the Constitution creates a “culture of justification”.
“The Act requires a court to be satisfied that secrecy is justified and that calls for a proper evidential basis to justify the secrecy.”
President Zuma may, of course, brush off the embarrassment and appeal once more, this time to the Constitutional Court. Doing so would serve only one purpose: to delay until after next year’s Zimbabwean polls the release of the report.
Two courts have now thoroughly destroyed the case for keeping the report secret, considerable public money has been expended and the M&G has waited two-and-a-half years to bring it to you. It is time to hand it over now, President Zuma, and demonstrate that the bridge to a constitutional culture is not — as the SCA put it — a bridge too far for you.
Drug price victory bittersweet
There are two possible reactions to the government’s extraordinary success in cutting in half the cost of antiretroviral drugs relied upon for survival by hundreds of thousands people living with HIV/Aids.
The first is celebration of what health department and treasury officials have achieved in setting up a tender system that forces genuinely robust Âcompetition upon drug suppliers.
The second is outrage at the epic price-gouging that must have been going on since the last round of tenders, in 2008. South Africa spends a more-than-respectable proportion of its annual budget on healthcare, but real health outcomes remain dismal and conditions in many state facilities remain appalling. From drugs and supplies stock-outs, to dirty laundry and crumbling buildings, the evidence of poor-quality spending is plain to see.
A major part of the problem is clearly excessive mark-ups throughout the medical supply chain. Some of the price-padding is classically corrupt. The Intaka scandal that has led to the arrests of Gaston Savoi, John Block and numerous provincial officials who allegedly colluded in the sale of over-priced oxygen machinery is almost certainly the tip of a very large iceberg — hundreds of catering, cleaning and equipment contracts need scrutiny.
Other problems are uncompetitive markets and the ability of suppliers to outmanoeuvre provincial and national health departments. The former needs sustained law enforcement, the latter requires cleverer tender rules. The government ought to have enormous pricing power in the health market and it looks like the health department may finally be figuring out how to use it.
This is exceptionally good news. Even better will be future improvements in health statistics and increased experience in state medical care.