Zimbabwe Lawyers for Human Rights and The Legal Resources Foundation v The President of the Republic of Zimbabwe and The Attorney-General

The first applicant, Zimbabwe Lawyers for Human Rights (a universitas established in 1996 to foster human rights culture), and the second applicant, The Legal Resources Foundation (a charitable and educational trust established in 1984), sought an order compelling the President of Zimbabwe to publish two historical inquiry reports. In 1981, President appointed the Dumbutshena Commission via Statutory Instrument 204A to inquire into mutinous disturbances at armed encampments in February 1981. In 1984, a Chihambakwe Committee of Inquiry was appointed to investigate events between December 1982 and March 1983. Neither report was ever published. The applicants argued that failure to publish these reports after twenty years violated their constitutional right to freedom of expression under section 20 of the Constitution of Zimbabwe, particularly the right to receive information. The first respondent argued that the reports were solely for government use, that there was no legal duty to publish them, and that the Dumbutshena Report could not be located.

• Whether the applicants had locus standi to bring the application
• Whether the constitutional right to freedom of expression under section 20(1) of the Constitution includes a right to access government inquiry reports
• Whether section 20(2) of the Constitution permits derogation from freedom of expression rights on grounds of public safety, public order, state interest, protecting reputations and rights of others, and preventing disclosure of confidential information
• Whether the court can compel the President to publish inquiry reports commissioned under the Commissions of Inquiry Act
• Whether the President's exercise of discretion in deciding not to publish the reports is justiciable under section 31K of the Constitution
• Whether the passage of twenty years removed any legitimate basis for keeping the reports confidential

The application was dismissed with no order as to costs.

The binding legal principles established are: (1) The constitutional right to freedom of expression under section 20(1) of the Constitution of Zimbabwe, including the right to receive information, is subject to the derogations set out in section 20(2), including limitations in the interests of defence, public safety, public order, state interests, protecting reputations and rights of others, and preventing disclosure of confidential information. (2) The Commissions of Inquiry Act imposes a duty on inquiry commissions to report to the President but creates no legal obligation on the President to publish such reports to the public. (3) Where the President exercises discretion not to publish inquiry reports on grounds falling within the constitutional derogations in section 20(2), particularly state interests and protection of individuals' rights and reputations, such exercise of discretion is protected from judicial review under section 31K of the Constitution. (4) Courts cannot compel the President to publish government inquiry reports where no prejudice is demonstrated beyond general public interest and where the President invokes legitimate grounds under section 20(2) for non-publication. (5) A universitas such as Zimbabwe Lawyers for Human Rights has legal personality and locus standi to bring constitutional applications in its own right under section 24(1) of the Constitution.

The court made several non-binding observations: (1) It noted approvingly from In re Munhumeso & Ors 1994 (1) ZLR 49 (S) that "The importance attaching to the exercise of the right to freedom of expression and freedom of assembly must never be underestimated. They lie at the foundation of a democratic society and are one of the basic conditions for progress and for the development of every man." (2) The court observed that the decision whether to release historical reports after the passage of twenty years "is a policy decision that can only be made by politicians or Parliament. It is not a legal decision to be made by the courts." This suggests a distinction between justiciable legal questions and non-justiciable policy matters. (3) The court commented that "prerogatives exercisable by the President which are conferred on the President by the Constitution...the courts, all things being equal, cannot enquire into because the President, acting on the advice of Government, is the best judge on matters of policy covered by the prerogatives." (4) The court noted that no instrument had been found showing whether the Chihambakwe Committee was appointed under the Commissions of Inquiry Act, and there was no report from that Committee, making it difficult to establish what it was appointed to investigate.

This case is significant in Zimbabwean constitutional jurisprudence as it clarifies the limitations on the constitutional right to freedom of expression, particularly the right to receive information from government. It establishes that: (1) constitutional rights in Zimbabwe's Declaration of Rights are not absolute but subject to derogations for public interest, state security, and protection of others' rights; (2) the right to receive information does not extend to a general right to access government inquiry reports commissioned for executive use; (3) the President's exercise of discretion regarding publication of sensitive government reports falls within executive prerogative and is protected from judicial interference under section 31K of the Constitution; (4) courts will not compel disclosure of government reports where the President relies on constitutional derogations relating to state interests, public safety, and protection of individuals' reputations; and (5) decisions about declassification of historical government reports are policy matters for the political branches, not justiciable legal issues. The case demonstrates judicial deference to executive authority in matters of state security and confidential government information.