Mnangagwa has duty to publish Motlanthe report 

The week started with news in the state media suggesting that the report of the Commission of Inquiry into Post-Election Violence, chaired by former South African president Kgalema Motlanthe, might not, after all the deliberations, be made public.

Source: Mnangagwa has duty to publish Motlanthe report – The Zimbabwe Independent December 7, 2018

Alex T Magaisa
Lawyer

Aug 1 Report for ED’s eyes only was the headline in the Herald, the government’s main mouthpiece, declaring the report as exclusive terrain for President Emmerson Mnangagwa, over which he has sole and unfettered discretion to share or not to share.

“There is nothing at law that compels the President to release the report to the public or not to release it to the public. The discretion is his,” presidential spokesperson George Charamba is quoted as having said.

The new narrative which seeks to privatise the outcome of the publicly-funded commission’s work is retrogressive. The commission is a public body which was set up on public funds and it has a duty to account to the public.

Honour your promise

The first reason for publication is based on the facts of the matter. It is that Mnangagwa has already exercised his discretion by making a public undertaking to publish the report. When he was asked a direct question at the press conference on August 29 2018 at which he announced the commission, Mnangagwa responded: “Once it (the report) is submitted to the President of the Republic of Zimbabwe, he will make it public.”

At the same event, Mnangagwa also stated: “Everything must be transparent … a report will be produced and published … We don’t want to deal with it privately.”

At all material times, Mnangagwa was clear and unambiguous in his promise to make the report public. He did not seek to invoke the law as a reason to withhold the report. He cannot now renege on that promise by taking a legalistic approach.

In any event, when Mnangagwa made those public undertakings, he knew or should have known that the law allows him a discretion as to the publication of the report. This means when he undertook to publish the report on August 29, he was fully conscious of the discretion that he was exercising ex ante (before the event) and the duty that he was assuming towards the public. He will lose whatever moral authority he still commands if he goes back on his word.

Thus, based on the facts alone, Mnangagwa has no choice but to be presidential and honour his public undertaking. If Mnangagwa goes back on his word, that conduct will damage not only his standing as a leader but public trust in the entire political system will be seriously eroded. Zimbabweans and the world he is trying to court would lose all respect were he to renege on his public undertaking. A promise that is not honoured becomes a lie.

Continuities

In any event, it would be a serious indictment on Mnangagwa if he withheld the report from the public because he would have confirmed that he is no different from his predecessor, Robert Mugabe. Mnangagwa has spent the past year trying desperately, but without much success, to prove that he is different from his old mentor. As Mugabe’s chief enforcer for many years, the shadow of the old master follows him everywhere and it has been hard to shake off. He has to do things differently. Mugabe had similar commissions before but he refused to disclose their reports.

It would also bust the myth of the new dispensation that he has been trying to promote. How can it be a new dispensation if it does precisely what the Mugabe regime was doing? Critics saw this commission as a show for the international community; as a bid to impress after the disastrous events of 1 August which means keeping the outcome a secret would probably make it worse. It would be a PR disaster for his regime.

Cover-up?

Apart from this, a refusal to make the report public after making big promises to share it will be seen in the court of public opinion as an admission of culpability and therefore an effort to cover up. People are more likely to think the report has been withheld as part of a cover-up.

In any event, people have expressed concern that the commission has already produced and presented an executive summary of the report well before the main report itself has been complied. Critics argue that it ought to be the other way round: an executive summary is usually prepared after, not before, the main report is completed. If the commission had presented a “preliminary report”, it would have been more understandable.

Legal duty to publish?

Given the factual undertakings made by Mnangagwa, which as a matter of honour must be upheld, there is really no need to analyse whether he has a legal obligation to publish the report of the commission. Taking an overly legalistic approach in the face of clear promises would not do him any favours.

Nevertheless, in the interests of completeness, it is useful to challenge the notion that there is no legal duty to make the report public. The Constitution of Zimbabwe, which is superior to the Commissions of Inquiries Act upon which they are relying, provides for and protects freedom of information.

Section 62 of the constitution provides for freedom of information. Every citizen has a right of access to any information that is held by the State if that information is required in the interests of public accountability or for the protection of a right. The report of the commission will contain information that is in the interests of public accountability and protection of other rights. Victims and survivors will have legitimate rights and interests in the information contained in the report. Persons named in the report will also have the right to have that information corrected if it is erroneous, untrue or misleading in any way.

Legitimate expectation

In addition, by making public undertakings to publish the report, and as a public officer, Mnangagwa created a legitimate expectation in the minds of the public, and in particular the victims and survivors that the report of the commission would be made public.

The constitutional right to fair administrative conduct, which safeguards legitimate expectations, must be honoured. Mnangagwa cannot now renege on the promise because doing so would undermine this legitimate expectation. He is under a constitutional obligation to fulfil and satisfy that legitimate expectation.

Political gamesmanship?

But surely, Mnangagwa and his advisers should know the damage that comes from the change of tone regarding publishing the report? They must know that keeping the report a secret is hardly an option in light of their efforts to impress the international community. They are desperate to be accepted into the Commonwealth next year and to be acknowledged as progressive generally.

Outright suppression of the commission’s report would not do them any favours.

So why would a presidential spokesperson make such damaging statements that contradict his boss’ previous undertakings which are in the public record?

One plausible explanation is that there is political gamesmanship going on here. Charamba is the bad cop and Mnangagwa will appear as the good cop, announcing that he will, after all the fuss, publish the report. That might make him sound like a reasonable man. It sounds like something from a drama, Zanu PF are adept at this strategy of creating a “crisis” in order to gain credit from “solving” it.

Another explanation is that having read the executive summary of the report, the regime is uncomfortable with it or parts of it and wants it changed before it is published. Alternatively, they will eventually publish it but as a heavily redacted copy. A redacted copy is one in which significant but unfavourable portions of the report would have been removed. They will probably cite amorphous grounds like “national security” or “public interest” as reasons for the redaction. This, they will argue, is at the president’s discretion.

Therefore, the discretion Charamba is homing in on here is regarding parts of the report, not the whole of it. We will get a report, eventually, but it will most likely be useless, with parts that are considered sensitive removed. Mnangagwa will have ticked the box of having met his promise to publish, but it will be meaningless.

The public will likely regard it as a cover-up, just as if no report had been published at all. People will see attempts to suppress the report or parts of it as attempts to suppress truths that are uncomfortable to the government or parts of it. The only way out is to honour the promise and make the report public in full and without redactions.

Dr Magaisa is a lecturer at the Kent Law School, University of Kent in the UK and  author of the Big Saturday Read www.bigsr.co.uk — wamagaisa@me.com