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
The M&G Centre for Investigative Journalism, supported by M&G Media and the Open Society Foundation for South Africa, co-produced this story. All views are the centre’s. www.amabhungane.co.za.