Shanelle van der Berg
1 October 2015
In the wake of the Hitachi/Chancellor House investigation in the US and Hitachi Corporation’s agreement to pay a huge amount to settle the corruption allegations made against it, the Constitutional Court’s judgments in My Vote Counts NPC v Speaker of the National Assembly and Others, handed down on Wednesday, could hardly be more pertinent.
This case squarely confronted the need for transparency regarding private funding of political parties. It highlighted the crucial interaction between the right to vote (section 19(3) of the Constitution) and the section 32 right of access to information.
Section 32(1) of the Constitution grants everyone the right of access to “(a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights”. Section 32(2) obliges Parliament to enact legislation to give effect to this right, which Parliament purported to do through the enactment of the Promotion of Access to Information Act (PAIA).
The question before the Constitutional Court was whether, by enacting PAIA, Parliament had in fact fulfilled its obligation. The applicant in the Constitutional Court, My Vote Counts (MVC), argued that voters must be informed of private contributions to political parties to be able to effectively exercise their right to vote. MVC also argued that Parliament had failed in its constitutional obligation to enact legislation that facilitates access to this particular type of information.
In so doing, MVC relied on section 167(4)(e) of the Constitution, which states that “only the Constitutional Court may decide that Parliament … has failed to fulfil a constitutional obligation”. MVC alleged that PAIA did not cover access to information regarding political party funding. Instead, new legislation was required to ensure systematic disclosure of private funding of political parties. Parliament responded by arguing that the enactment of PAIA did in fact fulfil its obligation to give effect to the right of access to information.
The question of whether Parliament had fulfilled its obligation by enacting PAIA sharply divided the court. The court’s judgment therefore consists of a judgment by the majority of the judges, which is binding, and a non-binding judgment by the minority of judges of the court.
The case followed an attempt in the High Court to obtain access to information about private political party funding through the mechanisms of PAIA; ratification by South Africa of international and regional treaties that encourage and require transparency; and correspondence between MVC and Parliament. The minority of the judges emphatically concluded that private funding of political parties constituted information that was “required” for the “effective exercise of the right” to vote:
“The flow of funds to political parties, public or private, is inextricably tied to their pivotal role in our country’s democratic functioning… [Political parties] are the indispensable conduits through which the Constitution’s vision of our democratic functioning is to be attained. It follows that information about political parties’ private funding is required for the exercise of the right to vote.”
Despite the minority of the judges’ candid recognition of the fact that private contributions to political parties are made with a view to advance particular agendas, the case ultimately centred on the technical principle of constitutional subsidiarity. In essence, the principle of subsidiarity requires that litigants must rely on legislation enacted to give effect to a constitutional right rather than relying on a constitutional right directly. The majority of the judges held that MVC should have challenged the constitutional validity of PAIA instead of relying directly on the right of access to information. The minority of the judges, on the other hand, agreed with MVC that Parliament should enact new legislation to fulfil its obligation of giving effect to the right of access to information that is necessary to exercise the right to vote.
The majority of the judges held (somewhat technically) that the principle of subsidiarity indeed applied and that MVC should have originally challenged the constitutional validity of PAIA in the High Court. The majority of the judges emphasised that the clear purpose of PAIA was to give effect to the constitutional right of access to information. To the extent that MVC argued that PAIA did not cover access to information regarding private contributions to political parties, it should have challenged the alleged constitutional shortcomings of the legislation (ie PAIA).
In addition, the majority dismissed MVC’s contention that once-off requests for access to information in terms of PAIA were woefully insufficient in this context, and that continuous transparency through the enactment of new legislation was required. The majority held that MVC was in fact attempting to prescribe to Parliament how to legislate. This was held to breach the separation of powers doctrine, which concerns the distribution of powers and responsibilities between the three different branches of government (cabinet, parliament and the courts). Significantly, the majority of the court deemed it unnecessary to decide whether information regarding the private funding of political parties was necessary for the effective exercise of the right to vote.
In contrast, the minority of the judges acknowledged the crucial importance of access to information concerning political party funding for the exercise of the right to vote. After meticulously setting out the origins and application of the principle of constitutional subsidiarity, the minority concluded that the principle was not applicable in this case.
The minority reasoned that the question was not whether PAIA was constitutionally invalid, but whether Parliament had complied with its obligation to give effect to the constitutional right of access to information through its enactment of various laws. Importantly, the minority stated that Parliament’s formal defence (grounded in the principle of subsidiarity) should not be allowed to trump the substance of MVC’s case. Additionally, the minority opined that “to shut down the route the applicant has chosen to enforce its right to information risks impoverishing the Constitution and this Court’s jurisdiction to interpret it”.
The minority judgment pointed out that PAIA did not require information of private funding of political parties to be disclosed: PAIA only compels disclosure upon specific requests for access to information; it draws a technical distinction between “public” and “private” bodies (of which political parties are neither); and it limits access to information to access to recorded information, whereas donations or funding contracts may often be concluded verbally and be unrecorded. Therefore, according to the minority of the judges, Parliament had failed in its obligation to give effect to the right of access to information that is required for the exercise of the right to vote.
Ultimately, the dismissal of MVC’s claim on a technical point is disappointing given the vital importance of transparency in the context of party funding for the functioning of our constitutional democracy. It now falls upon MVC or other potential litigants to challenge the constitutional validity of PAIA in a High Court, in compliance with the majority’s decision. Whether a finding of constitutional invalidity will lead to systematic transparency in respect of private funding of political parties is, however, doubtful.
Van der Berg holds a Mellon Early Research Career fellowship and is a member of the Socio-economic Rights and Administrative Justice Research Project at Stellenbosch University’s Faculty of Law.