Mbeki says he has no regrets- the Khampepe report judges exceeded their mandate

Former South African President Thabo Mbeki, who deployed Judges Sisi Khampepe and Dikgang Moseneke to observe the 2002 Zimbabwe presidential elections, said he still believed that the South African courts had made a mistake by releasing the judges report because this will impact on the advice government gets.

He owed no apology for refusing to release the contents of the report and felt that the two judges had exceeded their mandate.

Responding to an editorial in the Mail and Guardian, which took the government to court to release the report, Mbeki said South Africa had deployed two observer missions to the Zimbabwe elections:  a multiparty South African Parliamentary Observer Mission (SAPOM) and the 50-member South African Observer Mission (SAOM).

He said that although it noted various negative developments relating to the elections, the SAPOM said they were “a credible expression of the will of the people”.

The SAOM also pointed to various defects with regard to the elections but in its final report, it said it is “of the view that the outcome of the elections represents the legitimate voice of the people of Zimbabwe”.

“I must also mention that other observer missions, which the South African government respected, also came to conclusions similar to those of the two South African observer missions. I refer here to those, among others, of the Namibian and Nigerian governments, the Organisation of African Unity and the Common Market for Eastern and Southern Africa and the SADC ministerial task force.

“It was on the basis of the SAPOM, the SAOM and the other African observer reports that the South African government accepted that the outcome of the elections represented the will of the people of Zimbabwe.

“The South African government had no basis on which to insult all these African observer missions by claiming that they had told lies intended to betray democracy when they made their determinations about the Zimbabwe presidential elections,” Mbeki said.

The former South African President said his administration studied the judges’ report and took careful note of its accounts and comments relating to its terms of reference about the legal framework for the conduct of the elections.

“However, we found no summary in the judges’ report responding to its terms of reference about the legal framework and the elections.

“Given its composition and mandate, we came to the firm conclusion that it was not credibly possible for the judges’ mission to come to a conclusion about all major elements of the elections based on its own direct observations. In any event there was no expectation or requirement that it should make such a determination.

“The concrete reality was that the judges’ mission had neither the capacity nor the mandate to carry out the observation work done by the SAPOM and the SAOM, and it exceeded both its capacity and its mandate.”

The Movement for Democratic Change has welcomed the report says it confirms its complaints that the elections were rigged and were not free and fair.

The Zimbabwean government has also rubbished the report.

Below is Mbeki’s full statement published in the Mail and Guardian.

Mbeki’s Comment:

The self-righteous, misguided and insulting opinion of the Mail & Guardian is based on the disturbing failure by the newspaper to convey the truth about the basis of the decisions of the then South African government concerning the 2002 Zimbabwe presidential elections.

The South African government did not pluck its views about the outcome of these elections out of thin air. South Africa sent two fully fledged missions to observe the 2002 Zimbabwe presidential elections.

One of these was a multiparty South African Parliamentary Observer Mission (SAPOM), constituted and deployed by Parliament without any intervention by the South African government.

The second, and the larger of the two, sent by the South African government, was an essentially civil society 50-member South African Observer Mission (SAOM). Its leader, the eminent ambassador Sam Motsuenyane, was appointed by the South African government.

The two missions, the SAPOM and the SAOM, went to Zimbabwe at the invitation of the Zimbabwean Parliament and government respectively.

These missions had comprehensive mandates to observe all elements of the elections consistent with universal practice.

The two-member judicial observer mission (JOM) made up of Judge Sisi Khampepe and Judge Dikgang Moseneke had a very limited mandate, relating only to matters of the “legal framework” relevant to the elections.

In their report, the honourable judges mentioned their terms of reference. First, these directed the judges to report their findings to the president of South Africa.

Second, they required them to assess whether the Zimbabwean legal framework “can ensure credible or substantially free and fair elections, and whether the elections have been conducted in substantial compliance with the legislative framework”.

In addition, the South African government sent ministers Steve Tshwete and Membathisi Mdladlana to be present in Harare during the period of the elections.

These ministers would maintain continuous contact with the two observer missions so that they could immediately engage the Zimbabwe government on any relevant misdemeanour that would threaten the integrity of the elections, as reported by our observers.

We requested the government of Zimbabwe to allow us to deploy the JOM and the ministerial group, and explained their respective tasks. The government of Zimbabwe accepted our request and agreed to co-operate with both of them.

South Africa, with Angola, Namibia, Malawi, Mozambique and Botswana, also served on the Southern African Development Community (SADC) ministerial task force.

Although it noted various negative developments relating to the elections, the SAPOM said they were “a credible expression of the will of the people”.

Similarly, the SAOM also pointed to various defects with regard to the elections. Nevertheless, in its interim report, it made the determination that “the outcome of the 2002 Zimbabwe presidential elections should be considered legitimate”.

In its final report, it said it is “of the view that the outcome of the elections represents the legitimate voice of the people of Zimbabwe”.

Commenting on the SAOM report in 2003, I said: “We have also studied and taken seriously the observations and recommendations contained in the 42-page report of our observer mission. These observations include issues of political violence, legislation and state institutions relevant to the elections, the role of the media, and the general political situation. Those who present themselves to the public as experts would do well to study this report.”

I must also point out that the SAOM observers of the March 9 and 10 elections were in Zimbabwe from February 13 2002.

I must also mention that other observer missions, which the South African government respected, also came to conclusions similar to those of the two South African observer missions. I refer here to those, among others, of the Namibian and Nigerian governments, the Organisation of African Unity and the Common Market for Eastern and Southern Africa and the SADC ministerial task force.

It was on the basis of the SAPOM, the SAOM and the other African observer reports that the South African government accepted that the outcome of the elections represented the will of the people of Zimbabwe.

The South African government had no basis on which to insult all these African observer missions by claiming that they had told lies intended to betray democracy when they made their determinations about the Zimbabwe presidential elections.

We studied the judges’ report and took careful note of its accounts and comments relating to its terms of reference about the legal framework for the conduct of the elections.

However, we found no summary in the judges’ report responding to its terms of reference about the legal framework and the elections.

Given its composition and mandate, we came to the firm conclusion that it was not credibly possible for the judges’ mission to come to a conclusion about all major elements of the elections based on its own direct observations. In any event there was no expectation or requirement that it should make such a determination.

The concrete reality was that the judges’ mission had neither the capacity nor the mandate to carry out the observation work done by the SAPOM and the SAOM, and it exceeded both its capacity and its mandate.

It was not by accident that the judges’ mission was directed to submit its report to the president of South Africa. That report was not meant for public distribution.

It was intended to serve as advice to our presidency, given that we had already been engaging the government and political parties of Zimbabwe about what they should do to overcome their political challenges.

Throughout the years of litigation concerning the “Khampepe report”, we resisted its publication. We argued that it is the common practice in the jurisprudence of many jurisdictions to exclude from publication advice given to the sovereign, as provided for in our Promotion of Access to Information Act.

The reason for this is not to conceal from the public the content of such advice. It is simply to ensure that the quality of this advice is not compromised by fear or incentive that it might get into the public domain.

As an example, this important matter was dealt with by the New Zealand Law Commission as recently as 2012.

The commission report, titled The Public’s Right to Know: Review of the Official Information Legislation, has a chapter headed Protecting Good Government. Among others, this chapter says: “The withholding of the information is necessary to avoid prejudice to the effective conduct of public affairs by protecting … The free and frank expression of opinions and provision of advice or information by, between or to ministers of the Crown or members of an organisation or officers and employees of any department or organisation in the course of their duty …”

I have no doubt that our courts erred in ordering the public release of the Khampepe report. From now onwards, all those requested to provide advice to the government will know that such advice may be brought into the public domain.

I am certain that this will affect the quality of such advice, given the knowledge of those requested to provide the advice that it is possible that they are not only advising the sovereign in confidence but also addressing the general public.

As stated by the New Zealand Law Commission, this presents the real danger that this will “prejudice … the effective conduct of public affairs”.

I know that some of those who were convinced they would win, but later cried foul after the announcement of the election results, had saluted what our observer missions and ministers had done. They had said the work carried out by them would ensure that the outcome of the elections truly represented the will of the people of Zimbabwe.

Those who lost the elections did not do so in the period between the closure of the polling stations and the finalisation of the count.

Commenting on the counting process after the polls closed, the report of the observers of the World Council of Churches and the All African Conference of Churches said: “Some of our observers participated in the counting process. They confirmed that, though the process was slow and time-consuming, it was solid and effective.”

The judges’ observer mission also made a similar finding.

We owe and will make no apology to anybody whatsoever both about resisting the publication of the Khampepe report and respecting the determinations made by the SAPOM, the SAOM and the other African observer missions about the 2002 Zimbabwe presidential elections.

The vacuous pontifications of the M&G in this regard are nothing more than that.

Thabo Mbeki was president from June 1999 to September 2008.

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