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    Zimbabwe Loses Appeal to Keep Election Report Secret

    Jan 19, 2011
    After the 2002 Zimbabwe elections, former President Thabo Mbeki commissioned Judges Dikgang Moseneke and Sisi Khampepe to compile a report citing their conclusions on the fairness of Zimbabwe’s presidential election year. According to an article published by Mail and Guardian online (M&G), the report has since been kept from the media.M&G used the provisions of the Promotion of Access to Information Act (PAIA) to get a copy of the report.

    After the 2002 Zimbabwe elections, former President Thabo Mbeki commissioned Judges Dikgang Moseneke and Sisi Khampepe to compile a report citing their conclusions on the fairness of Zimbabwe’s presidential election year. According to an article published by Mail and Guardian online (M&G), the report has since been kept from the media.

    M&G used the provisions of the Promotion of Access to Information Act (PAIA) to get a copy of the report. The M&G article noted that the presidency had argued that because the report was a record of Cabinet, it was excluded from the scope of the act in terms of Section 12(a). 

    The presidency also claimed it was justified in withholding the judicial report because the release of the report would reveal confidential exchanges between the governments of South Africa and Zimbabwe (a limitation contained in section 41 of the act), according to M&G.

    In June 2010, the North Gauteng High Court ruled in favor of M&G and Judge S Sapire ordered the government to release the report within 10 days of the ruling. Within a week of the ruling, the presidency appealed the ruling. Six months later, in December 2010, Supreme Court of Appeal Judge Nugent dismissed the appeal.

    The M&G article said that the victory in its bid to force the government to publicize the report on the 2002 Zimbabwe elections is not only a victory for transparency, but it comes at a time when there is a large focus on new legislation – the Protection of Information Bill – that may hamper public access to information.

    According to the M&G article, Nugent said in his dismissal of the appeal that in his judgment, “the travails of [Zimbabwe], and their consequences for South Africa, are so notorious that we would be myopic not to accord them judicial notice.” He also said the reasoning behind the presidency’s decision to keep the report from the media was absurd.

    “In my view, no evidential basis has been established by the appellants for refusing access to the report. The court found that no evidential basis had been laid for the refusal. If the Constitution and the Act are indeed a bridge to a culture of justification, it seems to me that for the appellants in this case if has been a bridge too far,” stated Nugent.

    Alison Tilley, spokesperson of the Right2Know campaign, said, “The judgment upheld the importance of open transparent governance and access to information. It makes clear the burden is on the state to show that there is a reason the information should be classified.”

    The M&G article pointed out that the PAIA is not a complete solution to the problems with the Protection of Information Bill. As an example, the article said that if the 2002 election report had been leaked to a newspaper, the newspaper would have had to return it to the government and then apply to receive it back from the government under PAIA. This could ultimately take years.

    In reference to the M&G case, Dario Milo, a media law expert at attorneys Webber Wentzel  said, “We’re dealing with a report that was handed to the president eight years ago and that has still not seen the light of day.” Milo continued, “This case is a good illustration of why we need a public interest defense [in the Bill] and cannot simply rely on the PAIA to cure the public interest concerns with the Bill.”

     

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