Make SA generals’ report public

That report has never been made public and the Presidency now maintains that a written report was never compiled.
The report was commissioned under the auspices of Mbekis SADC-appointed role as facilitator of political dialogue in Zimbabwe. The existence, or non-existence of the report, has implications for the obligations owed by former President Mbeki and the current South African government to SADC, and for the obligations of SADC itself. Those obligations are specified below.
The communiqu of the 2007 Extra-ordinary SADC Summit of Heads of State and Government 28 -29 March 2007, (the communiqu) stated that:
The Extra-Ordinary Summit mandated H.E President Thabo Mbeki to continue to facilitate dialogue between the opposition and the Government and report back to the Troika on the progress. The Extra-Ordinary Summit also encouraged enhanced diplomatic contacts which will assist with the resolution of the situation in Zimbabwe.

1. It was in this capacity, as facilitator of political dialogue in Zimbabwe, that then President Mbeki, in May 2008, commissioned six retired South African Generals, led by Lt-General Romano, to assess the allegations of post-election violence committed in Zimbabwe and to present a report to him on such findings.
That report has never been publicly released. In response to a request made earlier this year by a consortium of non-governmental organizations the Southern African Centre for the Survivors of Torture, the South African History Archive and the Southern Africa Litigation Centre for the release of the report, in terms of South Africas Promotion of
1 Communique of the 2007 Extra-ordinary SADC Summit of Heads of State and Government 28-29 March 2007.
Access to Information Act (PAIA), the Presidency maintained that no written report had ever been produced, nor had any terms of reference been given the generals.
Below is only a small sample of the documentation that makes it hard to credit the Presidencys response:
On 14 May 2008 the Department of Foreign Affairs had an International Relations Police and Security Cluster media briefing. The notes from the briefing provide that:
President Thabo Mbeki as the facilitator has dispatched six retired South African National Defence Force (SANDF) Generals, led by Lt-Gen. Romano to Zimbabwe to assess the allegations of violence and present a report to President Mbeki.
This report should be presented in the near future and we hope that this will serve as the basis through which to address this matter.2 The then Deputy Minister of the Department of Home Affairs Aziz Pahad was asked the following question at that briefing: Will the report by the Generals be presented to President Mbeki or has it been presented to President Mbeki?
In answer to the question, the Deputy Minister stated that: A report is expected to be finalised this week. We will be informed as soon as the report has been completed.3
2 Department of Foreign Affairs, Notes following International Relations Police and Security (IRPS) Cluster media briefing (May 14, 2008). Available at http://www.dfa.gov.za/docs/speeches/2008/paha0515.html.
Furthermore, the former Deputy Minister is reported as saying the following when questioned about the investigations conducted by the retired Generals sent by Mbeki to investigate the violence:
This team was deployed on May 4 and is expected to complete its factfinding mission by May 20, following which it will present its report to the President.

4. The Implications of Non-Disclosure or Non-Existence of the Report The NGOs involved in the initial request have followed up by availing themselves of the internal appeal procedure allowed under PAIA. They have also submitted a second request for the minutes of the meetings at which the generals allegedly made their verbal reports. Furthermore, litigation on this issue is being considered.
However, the non-disclosure of the Generals report and, even accepting the Presidencys contention that no written report was ever produced not only has implications for the South African executives constitutional obligations in respect of accountability for expenditure of state resources and the publics right 3 Ibid.
4. Independent Online, Pahad Rubbishes Zim Information (May 20, 2008) available at http://www.iol.co.za/index.php?art_id=nw20080520164010279C212118.
of access to information, it also has implications for the obligations of accountability and colleagiality owed by members of SADC in respect of one another.
Although then-president Mbeki was appointed to facilitate political dialogue between protagonists in Zimbabwe, it is clear, even from the abridged noting of this appointment in the communiqu emanating from the 2007 Extra-ordinary Summit, that this was not a function in which he would have unlimited discretion. The communiqu makes plain that this process of mediation would be supervised by the Troika, and that the mediator was to report back to the Troika on his progress.
Indeed, it is the Troika that is mandated by the SADC Treaty to function as the steering committee of the institution [the Summit] and shall, in between the meetings of the institution, be responsible for:
a) decision-making
b) facilitating the implementation of decisions; and
c) providing policy-directives.5
In the absence of any written report compiled by the Generals or any written terms of reference for such report, it is hard to imagine how the mediator might have discharged, in good faith, his duty in respect of the Troika specifically and the Summit of Heads of State and Government, more generally.
5. Article 9A(6) of the SADC Treaty
The value in sending such high-level retired Generals to conduct an investigation would have been severally undermined had they only been required to provide an oral report as opposed to a properly documented report consistent with the highest standards of military efficiency that dealt systematically and comprehensively with the very complex and important matters they were tasked with investigating.
More pertinently, however, given that the purpose of the mission was to inform the actions, both diplomatically and otherwise, of SADC, it is difficult to understand how such a report could have been anything other than in writing, so that proper consideration of it could be undertaken by a broader spectrum of persons who may not have been able to consult directly with President Mbeki and the Generals.
Only by producing a written report could the obligations owed to SADC members be properly discharged.
In light of the above, we call upon:
Former President Mbeki to fulfill his SADC appointed mandate and produce the Generals report or, in the alternative, to clarify how the obligation owed to SADC member states to afford them the opportunity to properly consider and to determine appropriate response to the Zimbabwe situation could be discharged in the absence of a record of the crucial assessment undertaken by the Generals.
South African President Zuma to fulfill South Africas obligations of colleagiality to SADC member states by producing the Generals report and associated documentation, if such documentation is in possession of the South African government.
The 29th Ordinary SADC Summit of Heads of State and Government, in line with SADCs commitment to the right of access to information as set out in its Protocol on Culture, Information and Sport, to produce the Generals report, if in possession of the Summit, the Troika, or any SADC institution, or, in the alternative, to clarify how it may discharge, in good faith, its several obligations in promoting peace and security when it has not considered so important a report on developments in Zimbabwe.