28 September 2017
Parliament has been ordered to pass legislation to force political parties to disclose who funds them. In an order handed down in the Western Cape High Court on Wednesday, Judge Yasmin Shenaz Meer found that information about private funding of political parties is needed for South Africans to effectively exercise their right to vote.
The case was brought by civil society organisation My Vote Counts against every political party represented in Parliament, including the DA, the EFF, the ANC, COPE and the IFP, as well as the President and the Ministers of Justice and Correctional Services, and Home Affairs.
The initial application attempted to have the Promotion of Access to Information Act, 2000 (PAIA) declared unconstitutional and invalid to the extent that it does not allow private funding to be recorded and disclosed. MVC also sought an order compelling Parliament to fix this and create a mechanism that would provide automatic and regular disclosure of private donations and funds received by political parties.
MVC argued that information about private funding is needed by South Africans to be able to exercise their constitutional rights to vote and make political choices in an effective and meaningful way. MVC had previously approached the Constitutional Court to compel Parliament to pass legislation that would make private funding information accessible to the public. Unfortunately, the majority of the judges dismissed the case, stating that MVC should have argued on the shortcomings of PAIA rather than arguing that Parliament had failed to fulfil its constitutional obligations.
MVC then filed a case which challenged the constitutionality of PAIA in the High Court. Only the Minister of Justice and Correctional Services and the Democratic Alliance opposed the application.
Judge Meer then had to consider whether the Constitution actually requires that donations and funds given to political parties be disclosed or made available to the public. Judge Meer found that the right to vote and the right to access information are interconnected. In particular, the right to information specifically allows for people to access information where it is needed to exercise or protect their rights. As a result, the question became whether information about private funding for political parties is needed for South Africans to realise their right to vote.
MVC argued that the funding of political parties is particularly important in view of the important role political parties play in South Africa’s democracy. Political parties often play a major role in what laws are passed and what policies are adopted. MVC also relied on the minority judgement in the previous case in which Justice Edwin Cameron considered that being informed about private funding is necessary for the exercise of the right to vote.
Judge Meer agreed, and found that the right to vote includes the right to cast an informed vote, stating that the right to choose a political leader “is valuable only if one knows what one is choosing.”
The DA and the Minister argued against adopting Justice Cameron’s reasoning. They said this would make all previous elections questionable because private funding had not been disclosed when those elections took place. This argument was rejected by Judge Meer who held that private funding of political parties does need to be disclosed in order for South Africans to effectively exercise their right to vote.
MVC also argued that the state had an obligation to curb corruption under the Constitution and international law and that the disclosure of party funding would curb corruption.
Both the Minister and the DA held that detecting corruption ought to be left to criminal justice authorities and law enforcement agencies like the Hawks and the National Prosecuting Authority. The DA also argued that private funding did not affect the way a party behaved and that requiring disclosure infringed on the rights of donors. However, the court found that the fact that the DA had publicly accused the ANC of granting political favour to donors undermined this argument.
The final issue to decide was whether PAIA was unconstitutional because it limited access to information of the funding of political parties.
Judge Meer found that PAIA did not provide for disclosure of private funding for political parties and that the mechanisms to access information through PAIA were limited and often not effective. She therefore held that PAIA limits the right to information and the right to vote.
The court had to then determine whether this limitation could be justified under the Constitution.
The DA argued that the limitation was justifiable because it protected the privacy and identity of donors and their right to express their political support in secret. The DA also argued that disclosing funding information would stop donors giving money to opposition parties for fear of retribution from the ruling party.
Judge Meer found that these reasons could not justify limiting the right to vote and the right to information. She didn’t rule that the right to vote will always outweigh privacy. But privacy doesn’t justify a total blackout on political funding. Parliament will need to come up with a mechanism that facilitates disclosure but this mechanism doesn’t need to be complete and automatic. Parliament can decide what must be disclosed and when in certain situations privacy might outweigh the right to information.
So PAIA was held to be unconstitutional and invalid to the extent that it did not allow for the disclosure of private funding of political parties. Meer declared that private funding information both for political parties and for independent ward candidates was required for people to exercise their right to vote.
The judge gave Parliament 18 months to fix PAIA’s shortcomings. This may be done through an Act amending PAIA or through entirely new legislation.
A draft bill on the funding of political parties was published for comment earlier this month. The draft bill not only creates mechanisms for disclosure of political party funding but also regulates how funding and donations may happen and what these funds may be used for. Specifically, the bill prohibits donations to political parties from foreign governments, organs of state and state-owned enterprises. Once passed, this could be how Parliament chooses to comply with the court order.
The case will now be referred to the Constitutional Court for confirmation of the order.