Zimbabwe President Robert Mugabe.
The Mail & Guardian has returned to court to seek access to a report on the state of Zimbabwean politics prior to the country’s contested 2002 elections, which government has refused to disclose.
The M&G believes the report is of great public interest because it will provide relevant information on whether the 2002 Zimbwabe election was "stolen" and says it is central to the legitimacy of Robert Mugabe’s presidency.
On Monday, lawyers for the M&G argued in the North Gauteng High Court in Pretoria, that the argument put forward by the state to justify its continued refusal to provide access to the government report could have serious implications for the separation of the powers of state.
The case concerns a report, drawn up by Constitutional Court justices Sisi Khampepe and Dikgang Moseneke in the run-up to Zimbabwe’s 2002 elections. The judges were sent to Zimbabwe by then-president Thabo Mbeki to observe and report back on the legal and constitutional environment in the country.
At the time, the Zimbabwean government was widely accused of suppressing political activities and the media and of vote-rigging.
The M&G first sought access to the report in 2008 but the state refused.
The newspaper filed a request for the report in terms of the Promotion of Access to Information Act (Paia). Paia allows members of the public to gain access to information held by the state, except in specific circumstances. Where the state refuses to grant access to the information, the state must justify its decision to refuse the request. The M&G has argued that in this case, the state has failed justify its refusal.
The high court ruled in favour of the M&G but the state appealed and it was escalated to the Supreme Court. Again, the court ruled in favour of the M&G. It was then taken to the Constitutional Court, which found that the state’s ability to make arguments on why it should withhold the report had been "hamstrung" by its inability to refer to the report itself in its evidence.
The matter was referred back to the high court for a "judicial peek". This would allow a judge the opportunity to see the report and decide whether the state’s arguments on why it should be withheld are valid.
In June Judge Joseph Raulinga read the report and asked the parties to make "ex-parte" representations on the matter, that is, representations made to a judge without the presence of the other party in the case.
It was expected that the state’s arguments would make reference to specific details contained in the report, which would prove why it should remain confidential. Instead, the state produced two sworn affidavits, one from President Jacob Zuma and the other by Mbeki, as part of its ex-parte representations. Neither of the statements makes reference to any details from the report.
In his affidavit Mbeki said that Khampepe and Moseneke were sent as "special envoys" to Zimbabwe and that their report was used to craft policy. Paia allows for reports drawn up for the purpose of informing policy to be deemed secret by the state.
But Frank Snyckers, counsel for the M&G, argued that there was no evidence to show that Khampepe and Moseneke had been enlisted specifically to produce a report for the purpose of policy-making. There is also little evidence to show that they were sent as diplomatic envoys or that they received confidential information from the Zimbabwean government during their time in the country.
Snyckers said that if the judges had become co-opted into policy-making, then it violates the separation of the powers of the executive and judicial arms of government.
"If these judges were acting in the capacity the state says they were, this would be a threat to South Africa’s constitutional and democratic order, and the separation of powers," he said. Neither of the judges have provided affidavits concerning their role in the matter.
Zuma’s affidavit stated the report continues to be relevant to his policy-driven interventions in Zimbabwe and held that the "premature and piecemeal disclosure of information" could have a serious and negative impact on South Africa's relationship with Zimbabwe.
However, Snyckers questioned whether the report was still being used to inform policy. "If that is what that report was doing [assisting in policy-making], it cannot be doing that two presidents later, 10 years later," he said.
Judge Raulinga questioned what would happen if the result of releasing the report was that Zimbabweans decide not to adopt their new Constitution.
But Snyckers said that there could not be anything in the report that would tell Zimbabweans anything the coalition government had not themselves already acknowledged in 2008. The newspaper has argued that the state will not make the report available because "a perusal stands to expose the falsity of the explanations they have given for their refusal".
The case continues.