10 December 2014

Reactions and responses to the release of the Khampepe Report

Former President Thabo Mbeki’s response

Recently former President Thabo Mbeki responded to the Mail & Guardian’s coverage of the release of the  Khampepe Report, calling their opinionself-righteous, misguided and insulting...’.

According to Mbeki, South Africa sent two observer missions to observe the Zimbabwean elections of 2002: the South African Parliamentary Observer Mission (SAPOM) deployed by Parliament and the SAOM (South African Observer Mission), the larger of the two observer missions which included members of the civil society. He indicated that while these two missions had mandates to observe all elements of the elections the JOM (Judicial Observer Mission) had a limited mandate compared to the two other larger observer missions, which was to observe the legal framework under which the elections would take place, the inference appearing to be that higher credence should be placed on the opinions of the SAOM and the SAPOM than on the JOM. Although both the SAOM and the SAPOM noted the negative incidents that took place before the elections their final conclusion was that the 2002 Zimbabwean elections were legitimate.

The conclusions of the SAOM and the SAPOM were not a radical departure from the conclusions reached by other observer missions. According to Mbeki the Khampepe Report was never intended for and should never have entered the public domain, he argues that as the Khampepe Report was intended to serve as advice to the presidency access thereto should have been denied under the provisions of the Promotion of Access to Information Act, 2000 (PAIA). Mbeki further alleges that the JOM exceeded its mandate in reporting on elements unrelated to the legal framework of the elections such as the pre-election violence and intimidation. Mbeki further alleges that the struggle over the Khampepe Report was not to conceal from the public its contents but rather to ensure that the quality of future advice to the Presidency would not be tainted by the fear that such advice might become public.

A New Zealand Law Commission Report found that there are circumstances under which withholding information from the public may be necessary to ensure that the political advisors are free to give frank opinions and advice.  

Morgan Tsvangirai the leader of the MDC appears unconvinced by such arguments and is quoted as stating that:

Zimbabwe’s problems could have been solved in 2002 if this damning report had not been swept under the carpet'.

 A PAIA-minded response to Mbeki

Ben Winks, an associate at Webber Wentzel which acted on behalf of the Mail & Guardian, has responded in an opinion piece to the points raised by Mbeki. Winks highlights the fact that the assertion that making the Khampepe Report public would create a precedent where the quality of the advice provided to a President would be compromised was, in fact, never the state’s defence at any point throughout the protracted six-year battle for the report.

The state's initial defence was that the Report contained advice obtained for use in policy formulation and that it also contained the state secrets of Zimbabwe and that, as such, the disclosure of the Khampepe Report would compromise South Africa’s mediation efforts in that country. When the High Court took a so-called ‘judicial peek’ at the Khampepe Report, it found that the report contained nothing of this nature.

Winks also points out that the state failed to prove that the authors of the report had an expectation that the report would never come under public scrutiny. He further points out that it seems that Mbeki tried to discredit the judges’ report by stating that their conclusion was unconvincing, which is surprising, given that he did not make this assertion back in 2002 or even in 2008 when the Mail & Guardian initially requested the report.

Lastly, he points out that PAIA was enacted to oust the culture of a secrecy and unresponsiveness inherited from the apartheid era, and that the burden now lies on the state to prove in terms of the provision of that Act that the non-disclosure of the information they hold outweighs the citizenry’s right to know. The legitimacy of withholding the report under the provisions of PAIA was considered by 30 Judges over the 6 year period and it was found that the report could not be withheld under the provisions of PAIA. Mbeki looked in New Zealand for an opinion to support his own, ignoring the African Commission’s model access to information law which would not have supported his argument and failing to mention that even in New Zealand disclosure is the exception to the rule of disclosure.

Civil society movement Right2Know warns that current trends regarding the dissemination of information could point to South Africa becoming a ‘security state’. ‘Nkandla’ and the National Key Points saga were listed as examples of controversies that were in the public interest but were shrouded in secrecy.

While it is promising to see the courts upholding the public’s right of access to information it is concerning that the prevailing culture appears to be one of secrecy and not of transparency and openness. It is to be hoped that court decisions such as these will eventually foster a change in this culture of secrecy.