BSR - Mnangagwa: duty to publish the Commission’s Report?
The week started with news in state media suggesting that the report of the Commission of Inquiry into Post-Election Violence, chaired by former President of South Africa, Kgalema Motlanthe, might not, after all the deliberations, be made public.
“Aug 1 Report for ED’s eyes only” was the headline in The Herald, the government's main mouthpiece, declaring the report as exclusive terrain for President Emmerson Mnangagwa, over which he has sole and unfettered discretion to share or not to share.
“There is nothing at law that compels the President to release the report to the public or not to release it to the public. The discretion is his,” presidential spokesperson, George Charamba is quoted as having said.
As Charamba is an agent of the President, his words represent and are binding upon his principal. His words are Mnangagwa’s words, unless the latter publicly disowns or corrects them. The words generate a new narrative about the outcome of the commission's work, different from the old narrative of openness and transparency.
The new narrative which seeks to privatise the outcome of the publicly-funded commission's work is retrogressive. The commission is a public body which was set up on public funds and t has a duty to account to the public. It's work should not and cannot be privatised. It must, like work performed by public bodies be subjected to critical commentary and assessment by the public and other institutions. Thus purely from the perspective of public accountability, it is important to ensure that the commission's output is made public.
There are a number of other reasons why the privatisation of the commission's report is objectionable.
Honour your promise
The first and probably more important objection is based on the facts. It is that Mnangagwa already exercised his discretion by making a public undertaking to publish the report. When he was asked a direct question at the press conference on 29 August 2018 at which he announced the commission, Mnangagwa responded, “Once it (the report) is submitted to the President of the Republic of Zimbabwe, he will make it public”. He referred to himself in the third person but there was no ambiguity at all in his statement: the report would be made public.
At the same event, Mnangagwa also stated, “Everything must be transparent … a report will be produced and published … We don’t want to deal with it privately”. It was another firm and unambiguous statement that there would be no secrecy around the commission's report. Those who believed him did so on his word.
At all material times, Mnangagwa was clear and unambiguous in his promise to make the report public. He did not seek to invoke the law as a reason to withhold the report. He cannot now renege on that promise by taking a legalistic approach. When Mnangagwa made those public undertakings, he knew or should have known that the law allows him a discretion as to the publication of the report. This means when he undertook to publish the report on 29 August 2018, he was fully conscious of the discretion that he was exercising ex ante (before the event) and the duty that he was assuming towards the public. He will lose whatever moral authority he still commands if he goes back on his word.
One of the great weaknesses of politics and the growing distance between political elites and the public across the world of politics in recent years is the dissipation of trust. The public loses trust in the political system largely because of the conduct of political elites who habitually lie and manipulate facts to suit their parochial interests. If Mnangagwa goes back on his word, that conduct will damage not only his standing as a leader but public trust in the entire political system will be further eroded.
Thus, based on the facts alone, Mnangagwa has no choice but to be presidential and honour his public undertaking. Zimbabweans and the world he is trying to court would lose all respect were he to renege on his public undertaking. He was not forced to make that promise and he should honour it. A promise that is not honoured becomes a lie.
In any event, it would be a serious indictment on Mnangagwa if he withheld the report from the public because he would have confirmed that he is no different from his predecessor, Robert Mugabe. Mnangagwa has spent the past year trying desperately, but without much success, to prove that he is different from his old mentor. As Mugabe’s chief enforcer for many years, the shadow of the old master follows him everywhere and it has been hard to shake off. He has to do things differently.
However, there is nothing new is appointing a commission of inquiry to investigate a matter because even Mugabe had similar commissions before. What would be different would be to go one step further and release the report, however unpalatable it might be to him or his associates.
Mugabe’s legacy in this area is that reports of such commissions were usually kept a secret. The most notorious are reports into inquiries over Gukurahundi in the 1980s. They have never been released (and Mnangagwa should also open up on those and release them). A refusal by Mnangagwa to release the Motlanthe Commission’s report would therefore hardly be surprising but disastrously for him, it will be seen as part of the package of continuities of the old era.
It would, therefore, be a public relations disaster for someone who has been trying so hard to give the appearance of running a “new dispensation”. How can it be a new dispensation if it does precisely what the old regime was doing? Having invested so much on an image spruce-up, withholding the report or parts of it from the public would reverse any gains made on the international front. Critics saw this commission as a show for the international community; as a bid to impress after the disastrous events of 1 August which means keeping the outcome a secret would probably make it worse.
Cover-up and Manipulation?
Apart from this, a refusal to make the report public after making big promises to share it will be seen in the court of public opinion as an admission of culpability and therefore an effort to cover up. People are more likely to think the report has been withheld as part of a cover-up. People have been suspicious of the commission from the beginning, particularly its local membership. A refusal to publish the report would be seen as part of that elaborate cover-up.
In addition, the length of time it takes before the report is released will also generate concerns that it is probably being subjected to manipulation, which will damage its credibility. Zimbabweans have painful memories of 2008, when election results were delayed inordinately and the reason given that that the electoral authority was carrying out “meticulous verification”. Many in the opposition took this to mean manipulation of election results.
Delays in the publication of the report will only generate similar concerns. After all, people have already expressed concern that the commission has already produced and presented an executive summary of the report well before the main report itself has been complied. Critics argue that it ought to be the other way round: an executive summary is usually prepared after, not before, the main report is completed. If the commission had presented a “preliminary report”, it would have been more understandable.
Legal Duty to Publish?
Given the factual undertakings made by Mnangagwa, which as a matter of honour must be upheld, there is really no need to analyse whether he has a legal obligation to publish the report of the commission. It shouldn’t arise because as a matter of honour, Mnangagwa must live by and uphold his word. Taking an overly legalistic approach in the face of clear promises would not do him any favours.
Nevertheless, in the interests of completeness, it is useful to challenge the notion that there is no legal duty to make the report public. The Constitution of Zimbabwe, which is superior to the Commissions of Inquiries Act upon which they are relying, provides for and protects freedom of information.
Section 62 of the constitution makes it clear that every Zimbabwean or permanent resident, including the media, has the right to any information held by the State if that information is required in the interests of public accountability or for the protection of a right.
That right includes a right for the correction of information that is held by the State. A court would have to determine whether provisions that allow a president to withhold such a report are consistent with the constitutional freedom of information.
The report of the commission will clearly contain information that is in the interests of public accountability and protection of other rights. Victims and survivors will have legitimate rights and interests in the information contained in the report.
Persons who will be named in the report will have the right to have that information corrected if it is erroneous, untrue or misleading in any way. They can only do so if they have access to the report.
It is preposterous and authoritarian to suggest that such a report is only the exclusive preserve of a president, who was an actor and not even a victim in the incidents under investigation.
In addition, by making public undertakings to publish the report, and as a public officer, Mnangagwa created a legitimate expectation in the minds of the public, and in particular the victims and survivors that the report of the commission would be made public. The constitutional right to fair administrative conduct, which safeguards legitimate expectations, must be honoured. Mnangagwa cannot now renege on the promise because doing so would undermine the legitimate expectation. He is under a constitutional obligation to fulfill and satisfy that legitimate expectation.
But surely, Mnangagwa and his advisers should know the damage that comes from the change of tone regarding publishing the report? They must know that keeping the report a secret is hardly an option in light of their efforts to impress the international community? They are desperate to be accepted into the Commonwealth next year and to be acknowledged as progressive generally. Outright suppression of the commission's report would not do them any favours.
So why would a presidential spokesperson make such damaging statements that contradict his boss’ previous undertakings which are on the public record?
One plausible explanation is that there is political gamesmanship going on here. Charamba is the bad cop and Mnangagwa will appear as the good cop, announcing that he will, after all the fuss, publish the report. That might make him sound like a reasonable man. It sounds like something from a drama, ZANU PF are adept at this strategy of creating a "crisis" in order to gain credit from “solving” it.
Another explanation is that having read the executive summary of the report, the regime is uncomfortable with it or parts of it and wants it changed before it is published. Alternatively, they will eventually publish it but as a heavily redacted copy. A redacted copy is one in which significant but unfavourable portions of the report would have been removed. They will probably cite amorphous grounds like “national security” or “public interest” as reasons for the redaction. This, they will argue, is at the president’s discretion.
Therefore, the discretion Charamba is homing in on here is regarding parts of the report, not the whole of it. We will get a report, eventually, but it will most likely be useless, with parts that are considered sensitive removed. Mnangagwa will have ticked the box of having met his promise to publish, but it will be meaningless.
The public will likely regard it as a cover-up, just as if no report had been published at all. People will see attempts to suppress the report or parts of it as attempts to suppress truths that are uncomfortable to the government or parts of it. The only way out is to honour the promise and make the report public in full and without redactions.
If Charamba has misrepresented his principal and exceeded his mandate, it is up to Mnangagwa to reassure the nation that his spokesperson has erred and that contrary to the tone of today’s message, he remains committed to honouring his word and will to that end make the commission’s report public and in full, without redactions.