The Presidency tried to convince the Constitutional Court in Johannesburg on Tuesday that it should not be compelled to release a report on the 2002 presidential elections in Zimbabwe to the Mail & Guardian.
“The disclosure of the record would reveal information supplied in confidence by or on behalf of another state,” said Marumo Moerane, representing the president.
He also argued the report was “essentially … obtained or prepared for the purpose of assisting to formulate policy”.
Moerane said the Presidency was not obliged to release the report because the two judges who compiled it were special envoys whose function was to inform then-president Thabo Mbeki about constitutional and legal challenges in Zimbabwe.
The information contained in their report was confidential, argued Moerane.
The paper 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.
Petitioning the courts
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 2010, 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.
Both the North Gauteng High Court and the Supreme Court of Appeal agreed with the newspaper.
The Presidency has now turned to the Constitutional Court in an attempt to keep the report secret.
Khampepe and Moseneke are both Constitutional Court judges. They recused themselves from Tuesday’s hearing. – Sapa and Staff reporter
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