/ 14 February 2013

M&G wins court battle over 2002 Zim election report

The report into the 2002 Zimbabwe elections questions the legality of the election.
The report into the 2002 Zimbabwe elections questions the legality of the election.

The presidency has been ordered to hand over to the Mail & Guardian a report into the 2002 Zimbabwe elections. The ruling confirmed that the report contained enough information to cast doubts on the legality of the elections.

The judgment in the North Gauteng High Court comes after four years of legal battles by this newspaper to get hold of the document. It contains the findings of Justices Sisi Khampepe and Dikgang Moseneke, who were sent to Zimbabwe by then president Thabo Mbeki to observe the 2002 elections.

The newspaper put in a Promotion of Access to Information Act request to the president to have it released. This was refused and the matter went to court, where it was ruled that the full document had to be released. The president appealed this and a subsequent judgment in the Supreme Court of Appeal and the matter went before the Constitutional Court, which sent the matter back to the high court. Judge Joseph Raulinga was then told to take a “judicial peek” at the report and make a judgment based on this.

He confirmed that the report was indeed the findings of the two justices, based on their observations. “Without disclosing the contents of the report I can reveal that the report potentially discloses evidence of substantial contravention of, or failure to comply with the law,” he said.  

This was enough public interest to trump the presidency’s argument. They maintained that the report contained privileged information that was given by Zimbabwean officials. Releasing it would therefore damage diplomatic relations.

But Raulinga said that the information in the report came from diverse sources, and “can never reasonably be constructed as information supplied in confidence by or on behalf of another state”.

He therefore ruled, “I am of the view that the public interest supersedes the harm that may ensue should the report be released.”

He ordered that the full report be released in 10 days. But if there was an appeal, it would remain embargoed until that process was finalised. He also ordered the respondents to pay costs.

Nic Dawes, editor-in-chief of the M&G, welcomed the judgment. “Judge Raulinga makes it clear that the public interest in this case is real and urgent,” he said.

With a new election looming in Zimbabwe it was very important that the presidency hand over the report now, he said. “They have been fighting doing so for the last four years and it is time that they accepted what multiple courts have said, which is that the M&G has the right to access the report,” he said.

Dario Milo, a partner at Webber Wentzel who has been handling the case, said the judgment was important as it was a complete vindication for the importance of access to information. “This is a powerful reminder that secrecy undermines our constitutional order,” he said.

Most importantly the judgment revealed that the report would potentially disclose evidence of a substantial contravention of the law in the 2002 elections, he said.

Mac Maharaj, spokesperson for the president, said that he had not yet had a chance to look at the report and would have to consult with lawyers when he did.