Ruling on party funding paves way for reform of SA’s electoral system

Chief justice’s finding that act is constitutionally invalid opens up opportunity for debate on voting laws

The twin troughs of our democracy for more than two decades were the absence of regulation of party funding, and the electoral system. These factors undermined the premises of our constitutional democracy: “Universal adult suffrage, a national common voters roll, regular elections and a multiparty system of democratic government”. Transparency, accountability and the electorate were the victims, while unscrupulous funders and party bigwigs were the beneficiaries.

Although last week’s Constitutional Court judgment in My Vote Counts vs Ministers of Justice and Correctional Services and the DA dealt directly with the party funding issue, it has also opened up an opportunity to fundamentally alter the electoral system. The court may well have killed two birds with one stone.

Delivering the main judgment, Chief Justice Mogoeng Mogoeng traversed the well-known arguments about how secrecy enables corruption, and how “big political campaign funders” are inclined to use money for improper purposes to the detriment of the interests of voters. He did so to entrench the principle that information about party funding is necessary in an open and democratic society.

The court ruled that the Promotion of Access to Information Act is constitutionally invalid to the extent that it fails to provide for access to information about the private funding of political parties and independent candidates. The act is therefore inconsistent with the constitutional right to access to information (section 32), the right to vote (s19), and the state’s duty to “respect, protect, promote and fulfil” those rights (s7(2)).

Importantly the court locates the right to this information in the right to vote, emphasising that the exercise of the right to vote would be hollow without access to such information, and that “what is implicitly envisioned by section 19 is an informed exercise of the right to vote”.

What therefore needs to be fixed in the act? First, the court finds that most political parties are juristic persons and fall within the scope of the act, and goes on to say it is “an absolute necessity that all, not some, political parties be required to record, preserve and disclose information on their private funding”. So the act must also cover those parties that are not juristic persons – Parliament is left to formulate an inclusive definition of a political party. The only guidance the court provides is to say that it must encompass all parties “regardless of whether or not they are registered or seek to hold office”. The list of parties registered with the Electoral Commission of SA (IEC) would therefore in itself not suffice. Entities displaying the characteristics or semblance of a party will fall under the obligation to record, preserve and disclose such information.

Second, the act needs to include “independent candidates” within the category of a private body as the present definition excludes them. Third, the privacy right of third-party funders cannot be used to shield party donors – this argument has been used as a cloak by the DA and has now been judicially settled, with the court stressing that such limitations would be unjustifiable.

Fourth, the procedure in the act to make an application for information with “laborious particularity” and the payment of a fee is also deemed to “not pass muster”. In terms of its s7(2) responsibility, the state is required to “ensure that the information be recorded, preserved and disclosable in a reasonably accessible manner and that it is not to be paid for”.

The court, wary of overreaching its judicial mandate, leaves it to Parliament to decide whether to amend the act alone or other legislation and measures. The court has merely given Parliament broad guidelines to pass legislation.

The court’s declaration that the act is invalid was not suspended. Such declarations are often suspended to allow Parliament to correct the defect; on occasion the court will “read-in” a provisional interpretation to ameliorate the impact of the offending provisions. In this instance it is the omission in the act rather than an existing legislative provision that has been found wanting. It is this lacunae Parliament must remedy within 18 months.

However, Mogoeng emphasises that the judgment has the effect of immediately facilitating reasonable access to the private funding of parties and independent candidates; it is not dependent on any action from Parliament. We can consequently expect a deluge of requests to parties ahead of the 2019 elections, to disclose their private funders. Such requests may, however, be rendered unnecessary, with Parliament having now passed the Political Party Funding Bill. All that stands in the way of its implementation is President Cyril Ramaphosa’s assent to the bill, and the IEC putting in place the necessary administrative capacity. The bill only deals with political parties, however, and does not apply to independent candidates, which would ordinarily not matter in the context of elections.

This brings us to the subject of electoral reform. In paragraph 29 of his judgment Mogoeng has loosened the nuts and bolts of our electoral system. He writes: “…section [19] addresses the fundamental right every adult citizen has to ‘stand for public office and, if elected, to hold office’. Our Constitution does not itself limit the enjoyment of this right to local government elections. The right to stand for public office is tied to the right to ‘vote in elections for any legislative body’ that is constitutionally established — meaning that every adult citizen may in terms of the Constitution stand as an independent candidate to be elected to municipalities, provincial legislatures or the National Assembly.

“The enjoyment of this right is not and has not been proscribed by the Constitution. It is just not facilitated by legislation. But that does not mean that the right is not available to be enjoyed by whoever might have lost confidence in political parties. It does, in my view, remain open to be exercised whenever so desired, regardless of whatever logistical constraints might exist.”

At national and provincial legislature levels SA has operated on a closed party list of candidates within a pure proportional representation electoral system. In other words, only registered political parties contested these elections, unlike local elections where independent candidates stand in ward contests.

The chief justice has now opened the door for independent candidates to contest national and provincial elections, ruling that there is no constitutional impediment to the exercise of this right regardless of any practical considerations.

If independent candidates can indeed stand in national and provincial elections, this paves the way for a challenge to the electoral system itself. Parts 3 and 6 of the Electoral Act of 1998 now stand susceptible to a frontal constitutional challenge, in particular the provisions dealing with parties and lists of candidates, and the system of representation itself. At the very least this judgment now demands that there be a proper public debate on the electoral system and whether it is best suited to the needs of our democracy.

At the ANC manifesto consultative workshop this week one participant stated boldly that a constituency-based electoral system is the future. That future may be much closer than expected.