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 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.

But the judges weighed this finding against pre-election activities such as intimidation and the deaths of 107 mainly opposition members and lengthy legal battles to change laws in favour of Zanu-PF, largely around citizenship and the reduction of polling stations in urban areas, where the strongest opposition party Movement for Democratic change had its largest support base.

The report objected to the Zimbabwean 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 the court rejected an appeal by government against an appeal court judgment that found the documents should be made public. The Constitutional Court dismissed the application on the grounds that it “bears no prospects of success”.

South African presidents Thabo Mbeki, Kgalema Motlanthe and Jacob Zuma have spent more than six years fighting against public release of the report commissioned by former president Thabo Mbeki and applied for by M&G lawyers.

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 Zimbabwean President Robert Mugabe’s Zanu-PF had used violence and the 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.

Mbeki continued to endorse the Zimbabwe elections and support the view by the South African Observer mission (SAOM), which 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 Commonwealth Observer Mission report, which highlighted a number of irregularities that are now listed in the Khampepe report.

The Khampepe documents were handed over to the M&G‘s lawyers on Friday afternoon following the Constitutional Court judgment.

M&G‘s lawyer Dario Milo of Webber Wentzel was delighted with 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 [the Promotion of Access to Information Act] 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 known that their opposition was baseless and dilatory,” Milo said.

The 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, radio in particular, than the MDC and the three other candidates.

Instead, the report occupies itself with the last year and few months leading up to the election.

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.

It found:

The elections in Zimbabwe, more than anything else, have been characterised by a high level of polarisation between the Zanu-PF and MDC, and between members of their respective parties.

Intimidation and violence in certain areas of Zimbabwe were the hallmark of the pre-election period. At least 107 people, whose names, places of residence and dates of death have been published, were reported killed in attacks related to political violence between March 2000 and election month March 2002. Although police were extremely reluctant to provide statistics, 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, known as youth militia. Reports by the SA and other observer missions show that these youth militia have been the primary perpetrators of violence and intimidation against members and supporters of the MDC or sections of the population that appear not to support 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 and freedom of assembly and of association of voters.

In the lead-up to the presidential elections, the electoral laws of Zimbabwe were amended dramatically and manipulated by executive decrees.

Final voter rolls and information on polling stations were not available timeously.

There was no equal or equitable access to publicly owned and funded media.

The executive government discarded the rule of law by failing to give effect to decisions of the high court and the Supreme Court, and introducing statutory instruments or regulations that altered, reversed or undermined court decisions.

Police treatment of supporters of each of the two main candidates appears 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 voters’ access to polling stations. On the third day of polling, many voters who wished to cast their vote did not have 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, transporting of election materials where necessary and protection of polling stations were accomplished.

It was principally the pre-polling and other environment that 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 have 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.”

The judgment vindicates those who have continued to question the freedom and fairness of the March 2002 elections for the past decade.