This is perplexing, to say the least, as secrecy was the hallmark of the apartheid state. We do not live in an apartheid and authoritarian state anymore but rather in a constitutional democracy. Pity that some state officials, Ministers, and the President does not always act accordingly.

But today the Supreme Court of Appeal (SCA) reminded all these people — who believe that they have a right to hide the truth about government activities from pesky journalists and the public who might have the cheek to think that the government is accountable to it — that open and transparent government and a free flow of information concerning the affairs of the state is the lifeblood of democracy.

In the case of President of the Republic of South Africa and Others v M&G Media the SCA ordered the Presidency to provide the Mail & Guardian with a report prepared by two South African judges for President Thabo Mbeki about the 2002 elections in Zimbabwe. I have not read this report, but it is difficult not to conclude that the President wants to hide this report from the public because it contains findings that might cast doubt on whether Robert Mugabe actually fairly won the 2002 election (I am choosing my words rather carefully here). Quoting from the Constitutional Court’s Brummer judgment, justice Nugent reminded state officials of the importance of the right of access to information:

in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the State. Indeed one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency ‘must be fostered by providing the public with timely, accessible and accurate information.’

As I read the judgment, it strengthens the hand of a person or a body who seeks information from a public body (including the Presidency) through PAIA. It does so by making clear that a public body may not refuse to provide the requested information merely by making bald assertions that the documents fall outside the scope of PAIA.

It has to produce tangible evidence and good reasons for denying a request of access to information under PAIA. In this case, the SCA found that the Presidency seemed to have changed its story and made wilder and wilder claims about the nature of the mission of the judges who went to Zimbabwe at the behest of President Mbeki. The SCA rejected the — what it called — sometimes absurd reasoning of officials in the Presidency and in effect found that they had not provided any evidence or any cogent reasons for denying access to the report.

Nugent did not mince his words:

If an application for information is not to be thwarted by that inequality of arms I think that a court must scrutinise the affidavits put up by the public body with particular care and, in the exercise of its wide discretion… it should not hesitate to allow cross-examination of witnesses who have deposed to affidavits if their veracity is called into doubt.

The affidavits that have been filed by the appellants are reminiscent of affidavits that were customarily filed in [apartheid era cases]. In the main they assert conclusions that have been reached by the deponents, with no evidential basis to support them, in the apparent expectation that their conclusions put an end to the matter. That is not how things work under the Act. The Act requires a court to be satisfied that secrecy is justified and that calls for a proper evidential basis to justify the secrecy.

It found that the Presidency’s case amounted to little more than rote recitation of the relevant sections of PAIA and bald assertion that the report falls within their terms. That is not the “stark and dramatic contrast” with the apartheid past required by he Constitution. Nor does it reflect the “culture of justification” established by that Constitution. The SCA was particularly scathing about the papers filed by a Mr Fowler, the deputy information officer in the Presidency:

Counsel for the appellants [that is the Presidency] submitted that those allegations by Mr Fowler were erroneous and should be ignored. I cannot see why allegations that have been made with deliberation under oath should simply be ignored. That the reasoning is absurd does not demonstrate that the allegations were made erroneously — it demonstrates only that the reasoning is absurd…. At first the appellants cast the judges in the role of diplomats rather tentatively. Mr Fowler described them initially as no more than ‘something in the nature of envoys’ but the appellants became emboldened as the affidavits unfolded. Later it was said that the judges were on a ‘diplomatic mission’; yet later that they were ‘special envoys’ to the President; and finally that they were ‘in essence the embodiment of the President’.

The SCA did not find “in essence” that Mr Fowler and others tried to mislead the court, but it is difficult not to conclude from the passages quoted above that Mr Fowler and others were a bit adventurous in making their “bold assertions” about what the report was for and what it may contain.

The effects of this judgment is that — at least those with money to pay lawyers — will be able to force state officials to provide them with access to documents held by the state as required by PAIA. The SCA took a strong stand against the culture of secrecy that permeates the state. The decision should therefore be welcomed and should act as a wake-up call for public officials who act as if we do not live in a constitutional democracy based on openness, transparency and accountability but rather in an authoritarian state in which state officials, ministers and the President have a right to hide important information in the public interest from the public.

Whether officials and Ministers (Minister Sisulu comes to mind) will heed the warnings of a mere court, is another matter. A culture of secrecy is like the bad stench created by cat pee – it is very difficult to get rid of.

I assume that the Presidency will appeal this judgment to the Constitutional Court. Based on this judgment and on the papers filed by the Presidency so far this would probably not be wise and would amount to a further wasting of public funds. After two court judgments the Presidency has failed dismally to provide any cogent reasons for denying access to the report, so it would be surprising if they managed to conjure up such reasons for an appeal to the Constitutional Court  - something they would need to do to have any chance of success.

But this is not the whole story. Ordinary citizens – Mrs Ledwaba in Sheshego and Mr Ntuli in Ulundi – who cannot pay lawyers to fight these cases in court will probably continue to be ignored by state officials when they request information needed to enforce their rights.

Oh, I just had a great idea: instead of creating a Media Appeals Tribunal (remember, the ANC argues it is needed because ordinary citizens cannot go to court when they are defamed) why not create an Access to Information Tribunal staffed by journalists and constitutional law academics. That way Mrs Ledwaba and Mr Ntuli might have a chance to access the information that is, indeed, the lifeblood of our democracy. Not going to happen is it? Which just goes to show, all the arguments for a MAT is utter bogus and is part of the attempt by the government to avoid accountability and to deny ordinary citizens the access to information that they have a right to obtain in order to exercise their democratic rights.

So when the New York Times reported this morning that a new survey has found that hunger is wide spread in that country, I could not help but wonder what Mbeki would say to this. The report states:

The survey, recently provided to international donors, found that the proportion of people who had eaten nothing the previous day had risen to 12 percent from zero, while those who had consumed only one meal had soared to 60 percent from only 13 percent last year.

For almost three months, from June to August, Mr. Mugabe banned international charitable organizations from operating, depriving more than a million people of food and basic aid after the country had already suffered one of its worst harvests.

Mr. Mugabe defended the suspension by arguing that some Western aid groups were backing his political rival, Morgan Tsvangirai, who bested him at the polls in March but withdrew before a June 27 runoff. But civic groups and analysts said Mr. Mugabe’s real motive was to clear rural areas of witnesses to his military-led crackdown on opposition supporters and to starve those supporters.

Can one remain a heroe if one has contributed so starkly to this state of affairs? Apparently one can if one inhabits the moral universe of Thabo Mbeki. Thank goodness we are rid of him.

According to The Times ASA argued that:

The tone of the commercial is disparaging and insulting to Robert Mugabe and as such is demeaning and lowers his dignity… A hypothetical reasonable person would be offended on viewing the commercial. There is nothing light-hearted and humorous in depicting a human being, especially a president of a country, as a gorilla.

I agree that the advert is beyond the pale. In the context of deeply entrenched racism and xenophobia in South Africa the depiction of a black man as a gorilla must surely be offensive to any decent and right thinking person. It perpetuates deeply offensive and dangerous stereotypes about Africans as animals. Even if it was supposed to be funny, I cannot see how such an advert can ever be acceptable in South Africa where incidents like the Reitz video shows how many whites still do not respect the inherent equality and dignity of Africans.

That is why I also feel uncomfortable with the Vodacom advert which makes fun of an African dictator, who is so stupid that he pretends to have all the Vodacom advertised goodies like special ring tones, by ordering his minions around him to produce them manually.

But I must say I find the reasoning of ASA as reported in The Times quite absurd.

The problem is not that the advert lowers the dignity of Mugabe, or that it lowers the dignity of a “President”. (Should all editors not now insist that when writing about Mugabe the word “president” be placed in inverted commas, given the fact that he was not legitimately elected as President of Zimbabwe?)

The advert is offensive because it perpetrates stereotypes of Africans in general. Its only redeeming feature is that it might lower the dignity of Mugabe as a person and might offend him. And the fact that he is the “President” of another country should also really not be relevant. In a country based on the Rule of Law, Presidents do not have more right to dignity than the rest of us because we are all equal before the law.

Mugabe is a dictator and it should be perfectly acceptable in an open and democratic society to make fun of or ridicule – even in quite a harsh manner – the murderous dictator of another country. An advert showing Mugabe with blood dripping from his hands, for example, will lower his dignity, but should surely be acceptable as long as the subtext of the advert is not that all or many Africans share the murderous inclinations of the “President” up North.

When one becomes a dictator one surely gives up the right to have one’s dignity respected by the inhabitants of another, democratic, country. In fact, in a democracy it should be our duty to mock and ridicule dictators like Mugabe. Given the fact that dictators like Mugabe are often quite thin-skinned and vain, mocking them is rather emotionally gratifying and also helps assert the notion that dictatorship is wrong and democracy is good.

It all depends on the context in which the mocking is done. Mocking a dictator in a way that merely perpetuates stereotypes about Africa or Africans are therefore beyond the pale. It is sad that ASA cannot see this distinction.

Last weekend we had a big pungwe – a political indoctrination meeting – on the farm. It was after Mugabe had come to our little town of Chegutu, southwest of Harare, and addressed the crowd with threats of “war”. A pungwe starts when the shadows lengthen and the sun goes down and darkness falls over the land. It does not stop till after the sun has risen again. All our workers had to go, as well as all their wives with babies and any children over the age of 12. Some of them didn’t go; so the mob sent little bands of chanting youth militia with sticks to fetch the absentees, drag them out of their houses and beat them for non-attendance.

Through the night we heard the chanting and the slogans and the re-education speeches ringing out into the cold darkness for hour after hour after hour. On and on it went, striking fear into my heart. I got up and paced around in the cold night, listening.

When the first birds began to sing, I thought: “How can these birds sing after such a night as this?” Then the birdsong was drowned out. There was a terrible noise like a swarm of bees. I knew the beatings had begun again and I listened helpless, tormented, in fear but praying fervently.

Does one really want to form a government of national unity with such people? Does one have any other choice?

President Robert Mugabe said on Friday that “only God” could remove him from office, as Zimbabwe’s opposition considered pulling out of next week’s run-off election amid escalating violence.

“The MDC will never be allowed to rule this country — never, ever,” Mugabe told local business people in Zimbabwe’s second city, Bulawayo, referring to the opposition Movement for Democratic Change. “Only God who appointed me will remove me — not the MDC, not the British.”

It therefore fell on our President to defend himself against the vigorous attacks by opposition parties who mostly argued that the President has failed in providing decisive leadership on many of the important issues of the day. Sadly, I do not share the view of some readers of this Blog that the President’s response was inspiring or that it rose to the occassion.

Instead of being Presidential, he came across as churlish and sarcastic. Instead of bold and inspiring he displayed the kind of petty, thin-skinned defensiveness for which he he has become so famous – or should I say imfamous.

The heart of his speech centred around criticism regarding his handling of the situation in Zimbabwe. Said our President:

Neither Hon. De Lille and Botha spoke of their own responsibilities as such leaders, content to perform on the public stage as militant critics and vigilant watchdogs. As I sat and listened attentively to what they had to say, I asked myself the question – when will they accept their responsibility to lead not partisan factions, but the nation!

If I may betray a confidence, at the close of the Debate yesterday evening, I had a short discussion with the Deputy President of the ANC, the Hon Kgalema Motlanthe, and expressed this concern.

In response, he said – there will always be some people who call themselves leaders but are content to curse the darkness, while making absolutely no effort to light the candle!

Take the matter of the role of our country with regard to our important neighbour, the Republic of Zimbabwe.

It seems to me perfectly obvious that one of our principal tasks in this regard is to assist the people of Zimbabwe to find one another with regard to the resolution of the immense problems they face.

There are some farther afield from us who choose to describe us as a so-called Rogue Democracy, to the absolute delight of the Hon Rev K.R.J. Meshoe, because we refuse to serve as their subservient klipgooiers against especially President Robert Mugabe.

Given all this, the Government I am honoured to lead will continue to engage the Zimbabweans to convey to them our views and feelings about any matter we believe is fundamentally or otherwise at variance with processes that must respect the will of the people.

We will continue to insist that the people of Zimbabwe must have the possibility freely to choose their leaders and Government and refuse to participate in projects based on the notion that we have a right to bring about “regime change” in Zimbabwe.

We will also continue to argue that the people of Zimbabwe will have to unite to extricate their country from the economic crisis in which it is immersed, and that we will contribute everything we can to support the realisation of this objective.

Maybe I am wrong, but this passage seem to suggest that President Mbeki has a rather undemocratic view of democracy. Some might say President Mbeki’s view of democracy is based on African principles of ubuntu or perhaps a pragmatic understanding that in countries like South Africa and Zimbabwe the ordinary competitive style of democracy will not work.

But I worry that his vision of democracy is based on the idea that what is needed in both countries are not real democracy in which different parties put forward alternative visions about what kind of society we want and how we want to be governed. Instead, he seems to suggest that all people in our respective societies should unite behind one vision and should act as praise singers for the revolution. Even when that revolution had been high-jacked and perverted by a person like Mugabe or even if that vision had been soiled by petty squabbles and the need to protect dodgy or even corrupt friends like Jackie Selebi and Tony Yengeni and even when the leader of that vision had time and again lied to the nation.

In his vision I see very little place for and understanding that democracy thrives with robust debate and criticism – along with responsible leadership of opposition parties who should be willing to praise good deeds and work together with the government of the day.

Is it really realistic or morally defensible to argue that what is needed in Zimbabwe is for the long suffering and oppressed people of Zimbabwe to unite with the tyrannical regime of Robert Mugabe to solve the problems of that country? How does one unite with a group of murderous kleptokrats? Why should one – as a matter of morality – be required to unite and therefore by implication why should one be stopped from competing with or criticising those very people who have run the country into the ground?

I agree that a delicate balance should be struck in a heterogeneous society like South Africa between criticising that which is wrong and to help build a new society. I do not think opposition parties always get that balance right. But what I heard from the President is that criticism is illegitimate and that, in the name of unity, we should all become praise singers of the leadership of our country – no matter how they act or fail to act to protect our interest and to build a better life for all.

But acting as praise singers for the government of the day would often be irresponsible and opposition parties would fail in their constitutional duty if they did not point out mistakes of the government and did not vigorously criticise the President if the President fails the nations.

The Zimbabwean government has announced the beginning of yet another operation designed to oppress the people of Zimbabwe.

Under Operation Dzikisai Madhishi (Operation pull down your satellite dish) the regime is forcing Zimbabweans to pull down their home satellite dishes through which the majority of Zimbabweans have been able to access eTV, SABC, Botswana Television as well some DSTV channels. The coverage of the Zimbabwe Broadcasting Corporation (ZBC) is generally poor outside of the main urban areas. The overwhelming propaganda content of this state channel has seen the proliferation of private satellite dishes in recent years.

This operation is a concerted effort by the regime to close all spaces through which information can be disseminated, with the objective of stealing the election.

Zimbabwe has descended into unparalleled levels of media censorship. The regime is determined to cut off Zimbabweans from the rest of the world by ensuring that they are unable to receive news from outside Zimbabwe about what is happening in their own country.

The Centre for Human Rights, at the Faculty of Law, University of Pretoria, calls on President Mwanawasa, in his capacity as Chairperson of SADC, and on President Mbeki, in his capacity as SADC mediator on Zimbabwe, to take all possible measures to ensure the immediate and extensive deployment of SADC observers in Zimbabwe.

It is encouraging that President Mbeki has already voiced his support for the deployment of SADC observers, and that he reminded member states to make the necessary resources available for this purpose. However, these observers should not focus primarily on monitoring the polls on voting day, but should be put in place as soon as possible to cover the period leading up to the elections and a reasonable period thereafter. These observers should also be representative of SADC as a whole.

An election is a process, consisting of three main phases: (1) the pre-election period; (2) the voting day itself; and (3) the period between voting and the release of results. If election observers focus on what happens on voting day only, the important determinants of a free and fair election prior to and after voting day would not be taken into account.

At the moment, there are clear indications that the pre-election conditions are not only making a free and fair election impossible, but are skewed in favour of the candidacy of President Mugabe. Even if people are allowed to go to the polls on voting day, free and fair elections are impossible due to the harassment, arrest, detention and even disappearance of activists and leaders; restrictions on the media; and fear and intimidation of the population and non-governmental organisations.

According to SADC’s own ‘Principles and Guidelines Governing Democratic Elections’, the SADC election observation mission should be deployed ‘at least two weeks before the voting day’ (para 4.1.10). Under the specific circumstances prevailing in Zimbabwe, the ‘normal’ period of two weeks should be increased as much as possible. It is imperative that all efforts should be made to get as many observers into place, covering as extensive an area as possible, as soon as possible. The elections, scheduled to take place on 27 June, is just 16 days away. Observers should be on the ground now, and should stay at least until election results are announced.

Observers should insist on the full compliance with the SADC Principles and Guidelines, which includes the following:

• The government must safeguard the human rights and adequate security of all stakeholders and parties (para 7.4; 7.5).

• The observers must have unimpeded and unrestricted access to all polling stations and counting centres (para 7.19).

Once deployed, SADC observers must submit regular reports, so that matters requiring urgent attention may be dealt with by the appropriate SADC organ.

To ensure a credible election, as many observers as possible should be allowed into the country. Presidents Mwanawasa and Mbeki should insist that Zimbabwe allows other observers, in line with the African Commission on Human and Peoples Rights’ ‘Resolution on the Forthcoming Run-off Election in Zimbabwe’, adopted in May at its 43rd ordinary session. In this resolution, the African Commission requests that the Zimbabwean government allows ‘both national and international election observers to observe the entire electoral process, so as to enhance the credibility of the electoral process, and acceptance of the results of the elections by all contesting parties’.

The Centre for Human Rights further urges Presidents Mwanawasa and Mbeki to exert all possible pressure on President Mugabe to halt violence, intimidation, and selective use of to law stifle opposition, and to abide by the SADC Principles and Guidelines Governing Democratic Elections and the Zimbabwean Constitution and Electoral Act.

The statement makes clear that the Mugabe regime is not adhering to principles adopted by African bodies and African states and that SADC principles adopted by all SADC countries are being flouted. Yet nothing is being done or said publicly – either by Mbeki or by other SADC leaders – to address this serious breach.

This has nothing to do with imperialism or attacks by Western countries on the Mugabe regime. Our own African bodies, using principles adopted by African states are not being adhered to. It makes a mockery of the African institutions that are supposed to help us shepherding in an African Renaissance.

In this debate there seems to be much confusion.

One should distinguish between refugees (who have certain rights in terms of International Law and domestic legislation) and undocumented immigrants (who have rights under the Constitution but do not have the same rights as refugees in terms of legislation and International Law).

Only a very small number of the people affected by the violence are actually refugees with the legal status of refugees. We have a legal obligation to integrate them into our society.

Most of the reported 5 million foreigners from elswehere in Africa entered South Africa illigally or are now staying here illegally and they are not refugees in the legal sense – although they are often seen as economic refugees.

One can only be legally classified as a refugee if a determination is made that one has a ¨well founded fear of persecution¨ on the basis of one´s political affiliations, ethnic or religiouis origin, sexual orientation and the like. Only a small number of people now living in South Africa without the right papers would qualify for this if they applied.

Because our borders are not well guarded and because of the vast differences in economic opportunities available in neighbouring countries and in South Africa, many people flood to South Africa. They are often industrious and ready to do almost anything to get ahead and are often – in the long term – very good for the development of a country. Just think the USA who became the only world power based on immigration.

In theory people staying in South Africa illegally can be deported but only if this is done in a way that would comply with the rights in the Bill of Rights and the supporting legislation – including the right to a fair hearing – before any decision is made to send them back. Most of the rights in the Bill of Rights apply to ¨everyone¨ and not only to SA citizens.  Sadly, often the rights of such undocumented immigrants are not respected and they are merely sent back only to return on another day.

But in the end, as the apartheid government found out, it is impossible to keep so many people away from economic opportunities by merely putting them on busses and trains and sending them back to their own countries (or ¨homelands¨ in the apartheid era) where they face even worse conditions and a lesser chance of making a living.

The only way to deal with the matter is to find a regional solution and this would have to include a solution of some sort of the Zimbabwean crisis. Sadly our government has helped – directly or indirectly – to prop up the person mainly to blame for the economic meltdown in Zimbabwe so this solution never materialised.

All those people venting at the undocumented immigrants should shout at the government to do more to get Robert Mugabe out of office and a new government there up and running.

But what do we do now? If we cannot (and based on humanitarian and human rights grounds, should not) deport 5 million people from South Africa and if tens of thousands of them are now destitute because of the violence, would it not be better to set up some temporary camps to assist them to survive?

I suspect the government thinks this is a toxic idea because it would LOOK so bad in the world media while – so they might think – it may also encourage more economic refugees (who are not legal refugees to come into South Africa.

But unless something drastic happens to improve the economy of Zimbabwe, the millions of undocumented immigrants will remain part of our lives, violence or no violence. A sensible government would try and steer a course between the anger of its own people and the need to accept the inevitability of millions of immigrants in our country.

Sadly, denial instead of proactive management has characterised the management of this issue and now it has blown up in our faces.