Zimbabwe report eludes M&G again

The Constitutional Court has sent an application by the Mail&Guardian newspaper for a secret report on the 2003 Zimbabwe elections back to the Pretoria High Court for further determination.

This was the essence of a judgment the court handed down yesterday.

The judges found that for a court to decide that the state had properly claimed that a record was exempt from disclosure, it should determine whether the state had shown that the withheld information fell within the exemptions claimed.

Because of the nature of proceedings under the Promotion of Access to Information Act, courts might sometimes not have enough evidence to decide responsibly whether an exemption from disclosure was correct.

The judges said this could happen because the person or entity making the request, not having access to the record, faced difficulties raising genuine disputes of fact as to the exemptions claimed by the state.

It could also occur when the state was limited, under the act, in its ability to refer to the contents of the record in justifying the exemptions it claimed.

Therefore, the court ordered that the High Court in Pretoria be allowed to invoke its right to see the secret report so it could decide the case.

The M&G was using the act to see the report by two South African judges on the election in Zimbabwe that resulted in Robert Mugabe retaining his position as president, over opposition leader Morgan Tsvangirai.

The judges, Sisi Khampepe and Dikgang Moseneke, observed the elections at the request of then president Thabo Mbeki. Both recused themselves from the current dispute when the court heard the matter in May.

The publisher of the M&G asked for the judges' report in June 2008, but the president would not release it.

The High Court in Pretoria granted an order compelling the president to make the report public. When an appeal failed, the presidency approached the Constitutional Court.

M&G editor Nic Dawes voiced disappointment over yesterday's ruling.

He said the judgment was important in terms of the controversial Protection of State Information Bill and in the context of next year's elections in Zimbabwe.