The 2002 Zimbabwean elections were not “free and fair” the long-awaited Khampepe report by then Pretoria high court judge Dikgang Moseneke and Johannesburg high court judge Sisi Khampepe has determined.
The 27-page document found the actual running of the three-day voting process, excluding delays in urban areas Harare and Chitungwiza, to have complied with the legislative requirements and to have been free of violence and or apparent ballot tampering.
The judges, however, weighed that against pre-election activities including intimidation and the deaths of 107, mainly opposition members in the process, lengthy legal battles to change laws in favour of the Zanu-PF, largely around citizenship and the reduction of polling stations in urban areas, where the strongest opposition party Movement for Democratic change just happened to have its largest support base.
The report also objected to the Zimbabwe government’s failure to respect and implement recommendations by the Supreme Court of Appeal and the high courts.
‘No prospects of success’
The findings of the Khampepe report were made public on Friday following a Constitutional Court judgment on the same day, in which that court rejected an appeal by government against a Supreme Court of Appeal judgment that found the documents should be made public. The Constutional Court dismissed the application on the grounds it “bears no prospects of success”.
South African presidents Thabo Mbeki, Kgalema Motlanthe and Jacob Zuma have spent over six years fighting against the public release of the report, commissioned by President Thabo Mbeki and applied for by M&Glawyers.
Mbeki had tasked the two judges, now serving on the Constitutional Court bench, with leading the Judicial Observer Mission to cover the March 8 to 10 Zimbabwe presidential elections and drawing up a report on their observations.
Despite claims from some observers that Zimbabwe President Robert Mugabe’s Zanu-PF had used violence and changing of citizenship rules to sway the vote in his favour, the Khampepe report, as it became known, was never released to the South African public.
Then president Thabo Mbeki throughout continued to endorse the Zimbabwe elections and support the view by the South African Observer mission, which also oversaw the elections that they had been “legitimate”. This was the view of its leader Sam Motsuenyane.
On March 13, the SAOM told reporters in Harare that the participation of the opposition in the campaign legitimised the outcome of the elections.
In going out to vote in large numbers the Zimbabwean people had “demonstrated their commitment to expressing their will in determining who should be their President”.
The report concluded that, based on their observations, it “is the view of the SAOM that the outcome of the 2002 Zimbabwe Presidential elections should be considered legitimate”.
Mbeki continued to dismiss the importance of the report by the Commonwealth observer mission report which highlighted a number of irregularities, now listed in the Khampepe report.
The Khampepe documents were handed over to the M&G lawyers on Friday afternoon following the Constitutional Court judgment.
M&G’s lawyer Dario Milo of Webber Wentzel was delighted on Friday following the judgment saying: “We are ecstatic that a five-year battle has finally come to a close. The judgment is a resounding victory for guaranteeing the rights of access to information.”
“Now that we have seen the report, it is clear that the presidency had no basis to withhold this report in the first place. It is an indictment on the office of the presidency that it litigated this case.
“The office acted contrary to the values of openness and transparency enshrined in PAIA and the Constitution. Three successive presidents opposed the report’s release when they should have known that the public had a clear right to know, and when they should have know that their opposition was baseless and dilatory,” Milo said.
The 27-page document weighs up a number of concerns and attempts to offer a balanced appraisal, choosing not to review allegations that the Zanu-PF received more coverage via state-owned media, and radio in particular, than the MDC and the three other candidates.
Instead the report occupies itself with the year and last few months leading up to the election.
Turning point in history
It points out that the 2002 elections were a turning point in Zimbabwean electoral history – seeing the Zanu-PF going from a 93% majority in the 1996 presidential elections to just 51.9% in 2002 “demonstrated Zanu-PF’s dramatic decline”.
Consequently it would mean that the stakes for these elections were high.
- The elections in Zimbabwe, more than anything else, have been characterised by a very high level of polarisation between (the Zanu-PF and MDC) and between members of their respective parties.
- Intimidation and violence in certain geographic areas of Zimbabwe were the hallmark of the pre-election period. At least 107 people whose names, places of residents and dates of death have been published, were reported killed in political violence related attacks between March 2000 and (the election month) March 2002. Although police were extremely reluctant to provide statistics, by far the majority of these victims are said to be members or supporters of the MDC.
- It is common cause that the Zanu-PF has established a military trained youth group, also known as youth militia. Reports by our and other observer missions show that this youth militia have been the primary perpetrators of violence and intimidation against members and its supporters of the MDC or sections of the population which appear not to be supportive of Zanu-PF.
- In varying degrees this election related violence and threats of violence, arson and hostage taking have curtailed freedom of movement, freedom of speech, freedom of assembly and of association of voters.
- In the lead up to the presidential elections the electoral laws of Zimbabwe were dramatically amended and manipulated by executive decrees.
- Final voters rolls and information on polling stations were not available timeously.
- There were no equal or equitable access to publicly owned and funded media.
- The executive government discarded the rule of law by either failing to give effect to decisions of both the High court and the Supreme court or by introducing statutory instruments or regulations which altered, reversed or undermined court decisions.
- The treatment of supporters of each of the two main candidates by the police appeal to have been partial
- The number of polling stations in urban constituencies and particularly in Harare and Chitungwiza were substantially reduced. This reduction severely curtailed the access of voters to polling stations. On the third day of polling, not all voters who wished to cast their vote had a reasonable opportunity to do so. The number of voters prevented from voting could not be ascertained
- It should, however, be recorded that in all the other constituencies polling stations were easily accessible to the electorate. The secrecy of the ballot was observed. Requirements such as effective design of ballot papers, ballot boxes, impartial assistance to voters, if necessary transporting of election materials and protection of polling stations were accomplished.
It was principally the pre-polling and other environment, which informed our assessment of the conduct of elections. We recognise that the opposition parties fully participated in the electoral process up to the end. We acknowledge that on polling days no significant irregularities, ave in Harare and Chitungwisa occurred, the report said.
‘Cannot be considered free and fair’
“However,” the judges concluded, “having regard to all the circumstances, and in particular the cumulative substantial departures from international standards of free and fair elections found in Zimbabwe during the pre-election period, these elections, in our view, cannot be considered free and fair.”
Milo said: “This landmark case will teach public bodies that you may be able to run for a while, but you can’t hide,” said Milo.
The judgment vindicates those who continued for the last decade to question the freedom and fairness of the March 2002 elections.