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Mbeki 'ignored judges' on Mugabe's stolen poll
Michael Bleby and Karima Brown, Business Day (SA)
May 12, 2008

http://www.businessday.co.za/articles/topstories.aspx?ID=BD4A76479

Johannesburg - President Thabo Mbeki's role as a mediator in the Zimbabwean crisis took another knock yesterday after disclosures that he ignored the advice of two judges he commissioned to observe that country's 2002 general elections. Mbeki commissioned judges Sisi Khampepe and Dikgang Moseneke to observe the controversial Zimbabwean election in 2002 - which the opposition Movement for Democratic Change (MDC) still claims was rigged. On their return the judges wrote a scathing report on the conduct of the election and submitted it to Mbeki. This was despite the ruling African National Congress (ANC), the government and the Southern African Development Community giving a thumbs up, saying the election result "represented the will of the Zimbabwean people".

Their report detailed the constitutional changes made by President Robert Mugabe before the presidential election to give him sweeping powers to amend electoral laws. It also said the failure of that country's legal system to permit a valid challenge to the results undermined these efforts. The shortcomings in the 2002 election that returned Mugabe to power included a failure to properly constitute the Electoral Supervisory Commission; a change in the Electoral Act to give Mugabe, rather than parliament, the authority to alter electoral law; and the change of wording in the Electoral Act to stymie challenges to election findings. MDC leader Morgan Tsvangirai attempted to nullify the changes that Mugabe had made to section 158 of the Electoral Act but the challenge was thrown out by Zimbabwe's Supreme Court a month after the election.

Matthew Walton, a lawyer acting for the MDC in SA, approached the local courts demanding the report's release. But the MDC later said it had stopped the court action, out of respect for the South African government's right to keep certain matters private. Neither Moseneke, now SA's deputy chief justice, nor Khampepe could be reached for comment. Walton said he had written to Mbeki to request the report, but the president's legal adviser had replied that it was never intended for publication and could not be released as it dealt with relations between heads of state - exempting it from SA's Promotion of Access to Information Act. Adv Jeremy Gauntlett, who represented the MDC in its challenge of the 2002 presidential election, said of the report: "There is a second secret Khampepe report. It concerns a matter of no less importance: has Mugabe in fact ruled Zimbabwe for the past six years in a documented breach of the law and his electorate's will?"

In an article written exclusively for Business Day and published elsewhere in the paper, Gauntlett said the tricks used in the 2002 report are likely to be used again in the presidential runoff necessitated by the lack of a clear winner in the March 29 elections. The details of the report submitted to Mbeki six years ago make it almost impossible he is unaware of the deceptions and illegalities perpetrated by Mugabe to cling to power. His unwillingness to blow the whistle on Mugabe - which dates back beyond the 2002 poll - is the reason Tsvangirai last month asked Mbeki to step down as the lead negotiator for the Southern African Development Community's mediation efforts on Zimbabwe. But while Tsvangirai has a difficult relationship with Mbeki, behind the scenes meetings between the MDC and Mbeki are continuing. Business Day understands that Mbeki, who visited Mugabe last week to resuscitate his mediation efforts, has been engaging the MDC in behind the scenes talks intended to break the political impasse in Zimbabwe.

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