via Zim poll secrets exposed – DailyNews Live 21 September 2014
HARARE – Repeated controversies that have dogged Zimbabwean elections could soon be laid bare after the South African Supreme Court of Appeal (SCA) dismissed with costs on Friday the latest attempt by President Jacob Zuma’s government to overturn a lower court order that compelled it to hand over a much sought-after report into shenanigans surrounding Zimbabwe’s disputed 2002 elections.
The Khampepe Report was compiled by leading South African jurists, including the country’s respected deputy Chief Justice Dikgang Moseneke, who looked into the freeness and fairness of the 2002 elections which observers and the opposition MDC dismissed as both unfair and not free.
In its ruling, the SCA found that the South African government had abused legal process and used implausible and unsustainable legal claims to fob off endeavours by the Mail and Guardian newspaper to lay its hands on the report.
However, the court declined to give, for now, much more than the vaguest of hints regarding what the report contains.
“Since this might still not be the end of the matter, I shall refrain from disclosing the contents of the report,” judge Fritz Brand wrote in the judgment, that was unanimously agreed to by the rest of the SCA bench, after a so-called judicial peek at the contents.
But Brand did disclose that the contents held nothing “that supports the grounds upon which the presidency refused the access sought by M&G”.
At one point during consideration by the SCA the report itself, what the State claimed to be the only copy in existence, mysteriously disappeared, only to reappear again.
The M&G first applied for access to the report in 2008, on the basis that its contents were in the public interest. The report was compiled by justices Sisi Khampepe and Moseneke, who were sent to Zimbabwe to provide a view on the conduct of the 2002 elections.
Despite the availability of the presumed hard-hitting report, the then-president Thabo Mbeki still declared controversially that South Africa was satisfied with the fairness of the Zimbabwean elections, as did observers from Nigeria and the Organisation of African Unity.
But other observers, including those from the likes of Norway, said Mugabe’s Zanu-PF had used violence to sway the vote.
Yet other observers pointed to changes in citizenship rules and vote registration as evidence of rigging.
The South African presidency consistently argued — during the terms of both Kgalema Motlanthe and Jacob Zuma — that the contents of the report could not be disclosed ostensibly because this would damage relations between South Africa and Zimbabwe.
On Friday, however, the SCA said some of its arguments were legal gymnastics and others held no merit at all.
One technical part of an earlier appeal by the presidency “amounts to abuse of process, which cannot be tolerated”, the SCA found.
In another instance the court said that trying to declare that Khampepe and Moseneke had been acting as diplomatic envoys — which could imply that anything said to them was protected as diplomatic communication — “borders on the cynical”.
The presidency had, therefore, sought to introduce “intricacies” into the case, Brand wrote.
Shorn of complications though, the Constitutional Court had found the presidency had not made a case against release of the report. The High Court (after a judicial peek) found nothing in the report itself that would justify refusal to release it, and the SCA (after its own judicial peek) was “not persuaded that the high court was mistaken in arriving at the conclusion”.
Representatives for the South African government said the judgment had to be studied before it could comment.