The Mail & Guardian‘s efforts to gain access to a report on Zimbabwe’s 2002 presidential election reached the Constitutional Court on Tuesday.
The report was commissioned in 2002 by then-president Thabo Mbeki, who requested that justices Dikgang Moseneke and Sisi Kampepe undertake a mission to Zimbabwe to investigate that country’s “constitutional and legal challenges” prior to the 2002 election.
Allegations of vote-rigging and reports of violence and intimidation marred the elections, which President Robert Mugabe won.
The Mail & Guardian has argued in both the high court (2008) and the Supreme Court of Appeal (December 2010) that widespread reports of electoral irregularities made the report commissioned by Mbeki of vital public interest, and that it should be released in terms of the Promotion of Access to Information Act (Paia).
The newspaper has 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.
Opposing the Mail & Guardian, the Presidency has 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”.
‘No factual evidence’
The Presidency is challenging in the Constitutional Court the appeal court’s December 2010 ruling that there was no factual evidence that the judges were acting as diplomats; a role not in keeping with the independence of the judiciary and the separation of powers.
Arguments in the Constitutional Court were heard on Tuesday from senior counsel Jeremy Gauntlet for the Mail & Guardian, and Marumo Moerane for the Presidency.
The Constitutional Court judges who heard the matter included Chris Jafta, Edwin Cameron, Johann van der Westhuizen, Sandile Ncobo, Bess Nkabinde, Johan Froneman and Mogoeng Mogoeng.
Justices Kampepe and Moseneke, who compiled the Zimbabwe report for Mbeki, recused themselves.
The Presidency’s insistence that the report ought not to be released rests on several arguments.
The first is that it was a “Cabinet report”, and so not within the ambit of the Promotion of Access of Information Act.
Second, it argued that it should not be released in order to uphold the neutrality of the presidents of South Africa who have been engaged in mediating between the opposing parties in Zimbabwe’s turbulent political climate, and that the judges were the president’s “special envoys” in this regard.
Third, the Presidency maintained that the judges’ mission was a diplomatic mission and that information gleaned during such activities, and received in confidence, should therefore remain classified.
Fourth, it argued that the report was being used by the president in the formulation of executive policy.
Burden of proof
In terms of Paia, it is up to the party declining to make requested information available to supply proof as to why a particular record should not be released.
For the Presidency, Moerane submitted that the “burden of proof had been discharged”.
Moerane argued that to disclose the report would be to reveal information that was supplied in confidence and that the purpose of the report was to assist in formulating policy.
The purpose of the visit was vigorously interrogated by the bench.
While it is common cause that the two judges who went to Zimbabwe were on a presidential mission, Chief Justice Ncobo noted: “What is at issue is whether that report was for the purposes of formulating policy.”
Moerane said the two judges who compiled the report were special envoys whose function was to inform then president Thabo Mbeki about constitutional and legal challenges in Zimbabwe. The presidency was therefore not obliged to release the report.
However, Gauntlett said: “They went as judges, they are judges. They could never stop for a moment to be judges.”
He argued that the judges could not have gone as “special envoys” on a diplomatic mission nor been the “embodiment of the president”, as this would have had serious implications for the separation of powers.
The bottom line
The bottom line, Gauntlett argued for the Mail & Guardian, was that the Presidency had put in the public domain no detailed evidence to prove that the report ought to remain confidential.
In his ruling in December last year, Appeal court Judge Robert Nugent said: “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.
On Tuesday in the Constitutional Court, judgment was reserved, as the bench adjourned to consider the arguments presented. — Additional reporting by Sapa and M&G reporters.
Glenda Daniels is advocacy co-ordinator for M&G Centre for Investigative Journalism.
This article was produced by amaBhungane, investigators of the M&G Centre for Investigative Journalism, a nonprofit initiative to enhance capacity for investigative journalism in the public interest. www.amabhungane.co.za.
For more on the M&G‘s bid to force the president to release the 2002 Zimbabwe election report view our special report