8 – 10 October 2007 The Forum, Bryanston, Johannesburg
Democracy & Party Political Funding: Pursuing the Public’s Right to Know
The Next Phase PARTY FUNDING COURT CASE BRIEFING
BY
IDASA
Paper delivered at the Multi-Stakeholder Conference: Reflections on the State of Electoral Democracy in South Africa
Conference Secretariat: Tel: +27 12 428-5700 • Fax: +27 12 428-5216 Email: [email protected] • Website: www.elections.org.za 2
The High Court Case and Appeal
On 20 April 2005, the Cape High Court gave judgment, dismissing Idasa’s application to access records of private donations made to the four biggest political parties in South Africa – the ANC, the DA, the IFP and the NNP – under the Promotion of Access to Information Act 2000. Recognising however that the litigation was brought in the public interest and the importance of the principles of transparency and openness which are at stake, Justice Griesel made no order as to costs.
As we said when we launched the application in November 2003, this was difficult and bold litigation, particularly given the inherent limitations of relying on the Promotion of Access to Information Act. We therefore respect the judgment of the court as both reasonable and balanced, though we believe that a more imaginative and creative Court would have adopted a wider interpretation of the section 19 right to free political choice.
Justice Griesel found that access to records of private donations was not reasonably required for the exercise and protection of the section 19 right to free political choice, including the right to free and fair elections. We believe that the Constitutional Court may well have decided these issues differently and potentially have accepted our argument that for the full enjoyment of this right, the records are reasonably required so that the citizen voter can make an informed choice.
We hold onto the belief that an election is only fair if the electorate can make an informed choice. Moreover, we reject narrow interpretations of section 19 because of the inherent danger that such interpretations reduce free political choice to the “event” of placing a vote in a ballot box, rather than the full process that must precede and proceed election day itself.
For as Wits academic, Professor Glenda Fick points out in Idasa’s recently released assessment of the state of South African democracy, “Democracy in the time of Mbeki”: “In the absence of any legislative framework the electorate cannot know or easily obtain information on where political parties derive their funding. The electorate is therefore unable to form an opinion on the measure of influence brought to bear upon a political party
Democracy & Party Political Funding: Pursuing the Public’s Right to Know IDASA
3 by a private donor. Unregulated funding to political parties creates scope for corruption on the part of politicians.”
During the course of the case, the governing party, the ANC, made a number of very significant statements about legal reform. In essence, it promised to introduce legislation to regulate private donations and to ensure transparency.
We see no good reason not to accept the good faith of its stated position to the Court. The ANC has persistently demonstrated its respect for the Courts and we have every confidence that it will now match its words with deeds – and that legal reform will follow soon.
We are fortified in adopting this approach by the words of Justice Griesel when he noted first of all that: “[this decision] does not mean that political parties should not, as a matter of principle, be compelled to disclose details of private donations made to their coffers…[Idasa] have nevertheless made out a compelling case – with reference both to principle and comparative law – that private donations to political parties ought to be regulated by way of specific legislation in the interest of greater openness and transparency”.
Noting in conclusion that Idasa had “raised matters of great public interest and concern”, it is clear that the Court relied substantially on the assertions made by the political parties, and the ANC in particular, that a legislative process is the best way to design the regulation of private donations.
Like the judge, we too take seriously the assertions made by the ANC on oath (set out in more detail below) and look forward to the parliamentary process.
For these reasons, and in this spirit of accepting the good faith and good intentions of the governing party, having carefully considered the judgment of Justice Griesel, Idasa has decided not to appeal.
We do not abandon our assertion that the public have a constitutional right to know who privately funds political parties – far from it – but accept that
Democracy & Party Political Funding: Pursuing the Public’s Right to Know IDASA
4 for the time being at least, political parties should be given a further opportunity to fill the lacuna that exists in the anti-corruption policy and legal apparatus by processing appropriate legislation through parliament.
The ANC’s Position in Court
The ANC sought either that Idasa’s case be dismissed or, alternatively, a stay of the proceedings “so as to allow the political and legislative process to follow the proper course necessary for the adoption of a national policy through legislation regulating the funding of political parties with the Republic of South Africa”.
In its Heads of Argument, the ANC stated that “the question of regulation and control of private donor funding of political parties should be addressed and implemented through a legislative process which will embody national policy perspectives and the balancing of the rights interests of all persons, including the electorate, political parties and their donors”.
This position was argued strongly in the ANC’s main affidavit, deposed by its secretary-general, Kgalema Motlanthe, when (at para 10.6.2) he accepts that the ANC is in favour of regulation of funding. He then states that the process of addressing the corruption and the “funding of political parties has already seen strides being made by South Africa’s legislature”.
In addition, the ANC buttressed its argument about the political and legislative process by reference to the African Union (AU), of which South Africa is a signatory. At para 10.6, Under Article 10 of the AU Convention on Preventing and Combating Corruption South Africa will be obliged to adopt legislative and other measures to “incorporate the principle of transparency into funding of political parties”.
According to Motlanthe’s deposition to the Court, “Parliament will fulfill this obligation”. Later in his affidavit, Motlanthe says that in respect of the AU protocol, “I repeat that it will be implemented in this country” (para 84).
The Process Now: the Next Phase
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Going back in time to 1997, when the ANC introduced into parliament the bill that subsequently became the Public Funding of Represented Political Parties Act 1997, it is clear that the ruling party saw public funding – which is now around R70m per annum – as a key first step in protecting the democratic process.
Speaking in the National Assembly, then Minister for Constitutional Development Valli Moosa said that “For political parties to perform in terms of the Constitution that is to be democratic, to be accountable and to be responsive to the people this country, we need to ensure that parties do not act merely as fronts for some or other powerful financial backer. That is a danger which our democracy could face, as other democracies have in other parts of the world. Therefore, this Bill attempts to ensure that we reduce the dependency of political parties on one or two powerful financial backers, and thereby reduce the possibility of the subversion of political parties and also the subversion of Parliament itself and of our democracy.”
Sadly, Minister Moosa’s concerns about the dangers of private funding have proved not to be unfounded. Revelations in the corruption trials of Peter Marais, David Malatsi and Schabir Shaik show the on-going danger of secret, unregulated private funding of political parties.
David Malatsi recently testified that he expedited approval for the Roodefontein golf estate having been “buoyed on” by a series of secret, substantial donations to the New National Party - a graphic example of the price which some private donors seek to extract from the recipient parties.
Shortly afterwards, in the Schabir Shaik trial, Zweli Mkhize, gave evidence that Shaik made substantial donations to the ANC during the late 80s and early 90s. In both instances, the public received this information too late for it to be able to evaluate the impact it may have had on policy – such as the golf estate development or the notorious arms Deal – and only because of the criminal trials.
Soon after the passage of the 1997 Act, Minister Moosa made it clear that he envisaged that regulation of private funding would soon follow, to complement the public funding element.
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Eight years have gone by. Now is the time for action. It was clear to us throughout the build-up to the Court hearing, during which we conducted a rigorous exercise of consultation with all sectors and stakeholders, including the churches, unions, business and NGOs, that there is strong cross-sectoral support of the right to know principle.
Ahead of the 2004 national elections, sixteen major corporations voluntarily disclosed the amount of their political donations as well as the identity of the recipients. We welcome this as a first, important step in creating a culture of accountability as regards political donations. In addition, the Johannesburg Stock Exchange released its revised Social Responsibility Index in October last year. While the Index is a voluntary one, it encourages listed companies to be transparent about their political donations.
The outcome of the High Court case makes absolutely no difference to Idasa’s determination to assert the public’s right to know who funds political parties, and that transparency is essential to help defend democracy from the contaminating impact of ‘dodgy donations’.
Rather, we believe that the judgment has moved things forward considerably. In addition, we are of the view that while the ball is squarely in the court of the ANC to start the process of legal reform, it is incumbent on all political parties to advocate for transparency and accountability in this area.
In addition to the detail of transparency regime and especially where to set the threshold for disclosure, there is a range of related issues to consider, including:
‘In kind’ donations; Ceilings on Campaign Expenditure; Independent Oversight Mechanisms; Regulation of business interests and activities of political parties.
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However, as the political parties themselves observed in Court, a lot of research has already been conducted in these areas, including our own research (a copy of our October 2003 position paper is available online at www.idasa.org.za) and so there is no need for further delay in commencing the law-making process.
Conclusion
We will continue to campaign for legal reform, in accordance with the South African Constitution, the AU convention, the good practice of modern democracies elsewhere and the ANC’s own position in Court.
Specifically, Idasa will:
Continue to work with all political parties, to support a process that ensures that an appropriate transparency and regulatory regime is designed for South Africa.
Continue to engage all sectors, including business, organized labour and civil society, to encourage a social consensus on the principles and detail of the transparency and regulatory regime.
Continue to inform the debate with comparative and other research building on Idasa’s Position paper of October 2003.
Monitor the political and legislative process, to hold political parties accountable to the promises made to the Court and to the AU convention.
Present further research and submissions on the detailed legislative options.
Host a major seminar later this year, directed towards these ends.
Note: All of the above may be quoted as from Richard Calland – Programme Manager of the Right to Know (RTK) Programme – or Judith February – Manager of the Political Information and Monitoring Service (PIMS).
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For further information and comment:
Richard Calland on 083 259 1736, or Judith February on 083 453 9817
Democracy & Party Political Funding: Pursuing the Public’s Right to Know IDASA