27 June 2018
The Constitutional Court has declared that information on private funding of political parties and independent candidates has to be recorded, preserved and made reasonably accessible to the public.
My Vote Counts (MVC) is an NGO that campaigns for greater political party transparency. It approached the High Court for an order declaring that the Promotion of Access to Information Act (PAIA) is unconstitutional because it does not provide for political parties and independent candidates to disclose their private funding. MVC has argued that this information is needed to exercise an informed right to vote.
The High Court ruled in MVC’s favour in 2017, and declared PAIA unconstitutional. But it suspended the declaration for 18 months to give Parliament time to fix this defect. The High Court also refused MVC’s further request to order Parliament to make the disclosure of political party funding information “systematic and continuous”.
Every court order that declares a piece of legislation unconstitutional must be confirmed by the Constitutional Court.
In any case, the Minister of Justice and Constitutional Development appealed the High Court judgment.
The minister argued that PAIA was not unconstitutional because it already provides for mechanisms to access information about political party funding.
The Constitutional Court had to decide three main issues. First, does the Constitution require information on private funding of political parties and independent candidates to be recorded, preserved and made reasonably accessible to the public? Second, does PAIA provide for this, and if not is it unconstitutional. Third, what relief should the court grant?
By the time the Constitutional Court heard the case, Parliament had already introduced a bill to provide access to information on political party funding. Despite this, the court said it must still hear the case because it has a constitutional duty to confirm or reject the order of the High Court. Also, because it would only be providing guidance on what the Constitution says about this issue and not deciding the content of any legislation.
Everyone has an automatic right to access information which is held by the state. But, when requesting information from a private institution, you must show that you need the information to exercise or protect another right. There must be a legitimate reason for the information to be disclosed.
The Constitutional Court considered the right to make political choices and the right to vote. It had to decide whether there was a link between these rights and the disclosure of private funding information.
The court found that the Constitution envisages an informed right to vote. This is because in a democracy, government is based on the will of the people. The will of the people is expressed through elections. The court found that if voters did not have access to all the necessary information to make an informed decision when voting then this can frustrate the will of the people. Voters need to know who is possibly influencing those who they elect into public office and what their real intentions are.
This finding was strengthened by the need to promote transparency and accountability as well as combat corruption. Corruption thrives in a culture of secrecy, the court said. Also, the court said there is “no free lunch,” and that funders are likely to influence the policy decisions of elected officials in a meaningful way. Also, the court found that when public office-bearers are “illegitimately dictated to” this is likely to poison the political landscape and undermine the values and vision of the Constitution.
South Africa also has a duty in international law to take steps to be transparent about the funding of public office bearers to combat corruption.
For all these reasons, the court found that the Constitution does require private funding information to be recorded and preserved, as well as reasonable access to this information to be accessible by the public. This is to help make sure that government acts based on the will of the people and not the wishes of private financiers.
Although the court’s main finding related to accessing information based on the right to vote, the court found that other stakeholders could request information on funding based on the right to freedom of expression. This includes NGOs, the media, academia and the broader public.
The court found that PAIA does not provide for access to private funding information. It has three serious problems.
First, the definitions section of PAIA is not broad enough. PAIA only allows you to request information from a person who is carrying on a business, trade or profession and only in that capacity. This excludes independent candidates who are merely conducting political campaigns.
Political parties that do not qualify as “juristic persons” would also be excluded. A juristic person is a special category of person which is capable of having rights or obligations in law. This usually refers to companies or other business entities as well as bodies created by legislation such as a university. However, many political parties are not formally established in this way.
Second, PAIA does not specifically require the recording, preservation and disclosure of private funding for political parties and independent candidates.
Third, the court found that PAIA’s procedure for requesting information is laborious and requires a fee payment. PAIA enables a request to be easily rejected on a variety of grounds. For example, a request for private funding information could be rejected because the information is likely to harm the commercial or financial interests of a private body. So PAIA does not make political funding information accessible.
For all these reasons, the court found that PAIA is unconstitutional.
The Constitutional Court highlighted a few things that would enable access to private funding information.
It said that “reasonable access should be institutionalised”. This means that there should be no fee to request information of this nature.
The court also said that the degree of access that Parliament enable would depend on the nature of the right being exercised. When it comes to the right to vote for example, there should be virtually no limits because access to information is essential to exercising this right.
It also found, that as a general rule, no information on private funding may be destroyed at the discretion of the holder of that information. However, the court said Parliament would still have discretion to decide whether access to information on negligible contributions, for example a R10 donation, may be excluded.
The court declared that information on the private funding of political parties and independent candidates is essential for the effective exercise of the right to make political choices and vote in elections. It ordered that this information must be recorded, preserved and made reasonably accessible to the public. It found that PAIA is unconstitutional to the extent that it does not allow for this. The court gave Parliament 18 months to remedy PAIA and take any other measure to give effect to this constitutional duty.
MVC also asked for systematic and continuous disclosure of information on private funding. It wanted this so that funding information is available at all times and not only upon request.
However, a majority of the judges found that this would amount to instructing Parliament how to draft legislation and this undermined the separation of powers between Parliament, which consists of our elected officials, and the courts.
A minority of the judges found however that such an order was necessary to give meaning to the right to have access to information on private funding. Otherwise it would mean that the obligation imposed is “unsystematic”, “one-off” and “intermittent”.
The judgment means we are likely to find out who is funding which political parties. But since Parliament has 18 months to sort out the legislation we may have to wait until the next election. The judgment shows that the courts view accountability and transparency in the financing of politics as vital to exercising our rights. It also highlights concerns about the influence private funders have in the political process, which is why political funding needs to takes place in the open.
Hopefully, the judgment will help prevent our democracy from being “captured” by private interests, although commentators have raised concerns that transparency in parties’ funding sources may adversely affect smaller parties and opposition parties more than the governing party, since their donors may be more reluctant to be named.