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A CONTROVERSIAL report by South African judges Dikgang Moseneke and Sisi Khampepe made public recently after a six-year legal battle by the Mail and Guardian newspaper and which claimed Zimbabwe’s 2002 presidential elections were not credible, free and fair has created unnecessary hullabaloo over an issue that has been overtaken by events and has no relevance in the country’s current political developments.
It should therefore be dismissed as the desperate actions of those pining for the return of the days when Zimbabwe was in the throes of economic and political turmoil. The very fact that a foreign newspaper has vested interest in the affairs of Zimbabwe should ring alarm bells among those who claim to have the well being of the country at heart.
We agree totally with former South African President Thabo Mbeki who, in a letter to the Mail and Guardian last week, said he owed no one an apology and stands by his decision not to publish the Khampepe report because it was not meant for public consumption.
Mbeki reiterated that the 2002 elections were free and fair and the two-member judicial observer mission made up of judges Khampepe and Moseneke had a very limited mandate, relating only to matters of the legal framework relevant to the elections. The honourable judges’ terms of reference required them to report their findings to the president of South Africa and to assess whether the Zimbabwean legal framework could ensure credible or substantially free and fair elections, and whether the elections had been conducted in substantial compliance with the legislative framework.
In addition, the South African government sent ministers Steve Tshwete and Membathisi Mdladlana to Harare for the duration of the polls to work with two fully fledged observer missions. One of these was a multi-party South African Parliamentary Observer Mission constituted and deployed by Parliament and the second larger one was an essentially civil society 50-member South African Observer Mission sent by the government.
The two missions had comprehensive mandates to observe all elements of the elections consistent with universal practice. South Africa, Angola, Namibia, Malawi, Mozambique and Botswana served on the Sadc ministerial taskforce. SAPOM and SAOM both gave the polls a clean bill of health noting that although there were some negative developments relating to the elections, they were a credible expression of the will of the people.
Commenting on the SAOM report in 2003, then President Mbeki said: “We’ve 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”.
The Namibia and Nigerian governments, Comesa, African Union and the Sadc ministerial taskforce observer missions also adjudged the elections to have been free and fair. On the basis of the SAOM and SAPOM reports, the South African government also accepted the outcome of the polls as representing the will of the people of Zimbabwe.
Commenting on the fatal flaws in the Khampepe report, Mbeki said they 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,” wrote Mbeki in the M&G.
“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”.
He said it was not by accident that the judges’ mission was directed to submit its report to the president of South Africa because that report was not meant for public distribution.
It was intended to serve as advice to the presidency given that the South African government 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”, Mbeki said, they resisted its publication arguing 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 the Promotion of Access to Information Act. We find the clarification put forward by Mbeki to be lucid, concise, solid and clear and we hope this brings closure to this emotive matter.
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derick.khumalo