Still no disclosures expected after Party Funding ConCourt Deadline
4 December 2019
Yesterday, the National Council of Provinces (NCOP) adopted the Promotion of Access to Information Amendment Bill (the Bill). The Bill’s adoption follows a June 2018 Constitutional Court judgment, ordering Parliament to amend the Promotion of Access to Information Act (2000) to facilitate the recordal, preservation and reasonable disclosure of political parties’ and independent candidate’s `private funding information. Regrettably, this adoption does not move South Africa closer to accessing this information and there is still no certainty on when information on the private funding of political parties and independent candidates will be made publicly available.
The Bill was drafted in such a way that it ties access to information on the private funding of political parties to what limited information will be provided through the Political Party Funding Act (PPFA). Seeing as the President has failed to gazette a date for the implementation of the PPFA, this Bill will have no value for ensuring that South Africans have access to the information that will allow voters to exercise their constitutional right to make an informed vote.
The PPFA will allow for compulsory and regular disclosures, but it limits disclosures to donations above R 100 000. The PPFA tasks the Independent Electoral Commission (IEC) to take on the supervisory role of collecting records and to publicly disclose the sources and amounts of each donation above R 100 000, within one financial year. This leaves the doors of corruption wide open, as donors can strategically allocate donations under R 100 000 through a variety of entities and persons. Without comprehensive transparency, journalists, civil society and the public at large, will not be able to detect whether donors will manipulate these legislative gaps to maintain secrecy of buying favours from politicians. Almost 18 months after a Constitutional Court judgement, Parliament and the President have failed to enable legislation that will deepen transparency and accountability in our political and electoral system.
This year, Parliament still had the obligation and opportunity to allow for recordal, preservation and disclosure of all private funding to political parties and independent candidates through PAIA. Further the Court explicitly stated that PAIA specifically must be amended as it is constitutionally defective in terms of its failure to ensure the recordal, preservation and reasonable disclosure on the private funding of political parties and independent candidates. The Constitutional Court judgement specifically ordered PAIA’s amendment and the Court placed no limits on how much should be disclosed. Further, a very powerful paragraph in the judgement stated what political private funding transparency legislation should seek to achieve:
“The need for efficiency and effectiveness in the prevention, containment and elimination of corruption linked to the private funding of political parties and independent candidates seems to cry out for urgent intervention. For, corruption that flows from secret private funding could otherwise stealthily creep into our political and governance space, toxify it and fossilise itself to our detriment, if it has not already done so.”
In its current form, the Bill still enables secrecy which can “toxify” our political system as there is no obligation on political parties and independent candidates to record all private funding. On the 29th of November, various written submissions raised issues with the Bill. However, the swift adoption of this Bill by the NCOP this week, the absence of any critical engagement by members in the Select Committee of Justice and Security, and the rubber-stamping approach this Committee took with this Bill, reflects how Parliament has failed to strengthen our transparency legislation.
The bottom line is that the lame-duck amendments in the Bill and the PPFA with no implementation date in sight, reflects how Parliament and the President are clenching onto secrecy by barring the facilitation and implementation of legislation which could allow for the detection, prevention and sanctioning of corrupt political funding.
In PAIA’s preamble, it states the following:
“[…]*the system of government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in public and private bodies which often led to an abuse of power and human rights violations[…].”
The lack of transparency and means to hold politicians accountable continues to fuel power that corrupts. It is the largely poor South African electorate who remains deeply affected by corrupt politicians who are more accountable to their donors, instead of serving the South African public. The average South African cannot afford to donate any money to political parties. Sadly, the average voter, with limited political decision-making power to determine who governs their country, remain in the dark on the benefactors of political parties.
Effective accountability and transparency rules and measures lie at the heart of good governance. If we want to grow a political culture wherein political parties and independent candidates are given no leeway to circumvent or avoid being fully transparent about their donor-relationships, the public needs certainty of where ruler’s interests lie. To root out corruption and to strengthen our institutions, we need to detect when toxic money deflects politicians from serving in the interest of the public.
Issued by Sheilan Clarke, Communications Officer, My Vote Counts, 4 December 2019
