Former President Thabo Mbeki declared in last week’s Mail & Guardian that he and his successors “owe and will make no apology to anybody whatsoever” for vigorously resisting the disclosure of the report given to him by senior Judges Sisi Khampepe and Dikgang Moseneke, which concluded that Zimbabwe’s 2002 presidential elections “cannot be considered to be free and fair”. Yet Mbeki delivers a rebuke in the dead language of state authority, rather than a reasoned response in our own budding dialect of state accountability.
In criticising the courts for upholding the M&G‘s request for the report, Mbeki presents a distorted picture of what the presidency’s defence actually was – and why it failed. He says “it is the common practice in … many jurisdictions to exclude from publication advice given to the sovereign … to ensure that the quality of this advice is not compromised by fear or incentive that it might get into the public domain”.
But this was never in dispute, and was not the presidency’s defence. Rather, it argued that the report contained advice procured for the purpose of formulating policy and state secrets confided by Zimbabwean officials. If any part of it was disclosed, the presidency’s counsel urged, South Africa’s mediation efforts in Zimbabwe would be compromised. The dispute was whether this was, in fact, the case. Presidency officials insisted it was, but produced no evidence from the only three people who could attest to it – Mbeki and the judges.
In the first three years of litigation, three courts (15 judges) found that the mere “say-so” of officials was insufficient to justify keeping the report secret. The state had to show why it should be kept secret. The presidency said it was “hamstrung” from doing so without showing the court the contents of the report itself. So the Constitutional Court ordered that they should give the high court a peek at the report and point out precisely why it should not be disclosed.
But the day before the presidency had to do so, it produced an affidavit by Mbeki asserting that the report contained confidential advice for policy-making and confidential information from Zimbabwean officials.
He had been too busy to give evidence before, he said, and the presidency argued there was no longer a need to take a peek at the report. It urged the court to accept that the report contained confidential advice and information simply because Mbeki said so. But the high court, as instructed by the Constitutional Court, did read the report and found it contained nothing of the nature described by Mbeki.
The presidency had gambled and lost, showing it had faked the “hamstring” that moved the Constitutional Court to send the case back to the high court. The result was another three years of litigation. Three courts (15 judges) rejected the argument that Mbeki’s delayed say-so justified nondisclosure.
Last week, Mbeki rebuked 30 judges for finding that, under our law, justifying secrecy requires more than the mere say-so of state officials. He betrayed a troubling discomfort with the way our Constitution and courts uphold the public’s right to know.
Our democracy is founded on the values of “accountability, responsiveness and openness”. The Constitution entitles everyone to access “any information that is held by the state”, and demands that “transparency must be fostered by providing the public with timely, accessible and accurate information”.
The Promotion of Access to Information Act was enacted in 2000 to bury the “secretive and unresponsive culture” of apartheid and “foster a culture of transparency and accoutability”. The state now bears the burden to justify nondisclosure by showing that it serves an interest recognised in the Act to such an extent that it outweighs the public interest in disclosure.
The Act was home-grown (under the husbandry of Mbeki himself) and has led a progressive current in African jurisprudence. In 2002, the African Commission on Human and Peoples’ Rights amplified the principles in the Act, resolving that state officials “hold information not for themselves but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law”. Mbeki quotes neither.
Unsatisfied with our own law, Mbeki says our courts should have followed the New Zealand Law Commission in recognising that “the sovereign” (his translation of New Zealand’s “Crown”) requires frank advice to function properly, so advisers should not be inhibited by the prospect of publicity. Mbeki makes no mention of the African Commission’s model law on access to information, which contains no such sentiment, and omits to mention that, even in New Zealand law, among many others, disclosure is the rule and secrecy the exception, to be justified by the state with sufficient evidence in each case.
In six years of litigation, the presidency squandered six opportunities to show how and why the disclosure of the Khampepe report would compromise the public interest. It failed to show that the authors assumed their work would be free from public scrutiny, let alone that the quality of their work would have suffered if they were aware of the risks of public scrutiny.
Mbeki now claims Khampepe and Moseneke’s conclusions were unconvincing and thus were relegated in favour of those of the other observer missions. But this was never advanced in argument and, in any event, nothing stopped Mbeki from qualifying the report in this way in 2002, or when the M&G requested it in 2008. Presidency officials railed for six years against our own laws and institutions in its efforts to keep the report secret.
It is true that the media must, in holding the state accountable, act robustly but responsibly. It can do neither if it is deprived of information. As the Constitutional Court held in this case, access to information “is crucial to accurate reporting and thus to imparting accurate information to the public”.
Mbeki knows this. Addressing the World Association of Newspapers in 2007, he said: “We in Africa can and do benefit from criticism, but we do ask that it should be based on accurate information and should be properly contextualised.”
We ask only the same of the state.
Ben Winks is an associate at Webber Wentzel Attorneys, which acted for the M&G in this case