/ 29 November 2011

ConCourt passes the buck on Zimbabwe report

The Constitutional Court has sent the M&G‘s application to have a controversial report on the 2002 Zimbabwe elections all the way back to the high court.

The Constitutional Court on Tuesday directed a Mail & Guardian application to have a South African government report on the 2002 Zimbabwe general elections made public, back to the North Gauteng High Court in Pretoria for further consideration.

The judgment relates back to an M&G challenge in 2007 of the government’s decision to keep secret a report on the constitutional and legal conditions surrounding Zimbabwe’s controversial 2002 elections under the basis of the Protection of Access to Information Act of 2002 (Paia).

The report, which was commissioned by then-president Thabo Mbeki from judges Sisi Khampepe and Dikgang Moseneke, was to be used by the president for policy formulation. Khampepe is a judge in the Constitutional Court and Moseneke is deputy chief justice. Both recused themselves when the court heard the matter in May.

The matter was brought to the Constitutional Court by the presidency, who had previously been ordered first by the high court, and then the Supreme Court of Appeal, to release the report to the M&G. The government had argued that the report was a record of Cabinet, which is excluded from Paia’s ambit in terms of Section 12(a) of the Act.

It also claimed the report’s release would expose confidential exchanges between the countries’ governments — a further limitation found in Section 41 of PAIA.

In a majority decision written by former chief justice Sandile Ngcobo, the court ruled that the high court, where the matter originated, should invoke its power to study the report’s contents.

“The majority concluded that the high court should have invoked its power to examine the report to decide on the state’s claims that it was exempt from disclosure,” the judgment read.

This means the case will now return to the same court in which it was ruled thatthe report should be released.

Although a majority judgment, the bench was split on the matter, with Judge Edwin Cameron leading a dissenting judgment stating that the presidency had failed to justify its refusal to release the report, further arguing for its immediate release.

M&G editor-in-chief Nic Dawes said the ruling was very disappointing.

“It has been over three years since we applied for this report to be released,” said Dawes. “They have decided to send this back to the high court — meaning a further delay in an already very long and drawn out process.”

“It’s also disappointing in that it was a very narrowly split decision with four judges deciding we should have the report and five judges deciding otherwise,” Dawes added.

The M&G has vowed to continue the fight to have the report released.

“This is far from being an outright defeat,” Dawes said. “I haven’t had an in-depth look at the judgment, but it looks as though it makes some strong comments about the responsibility of the state to make information available as part of Paia. We still have the opportunity in the high court to win access to the document that we believe South Africans have a right to know about.”

For more on the M&G‘s bid to force the president to release the 2002 Zimbabwe election report view our special report