Concourt’s historical ruling on information act a boon for our democracy
LAST week the Constitutional Court handed down a momentous judgment relating to party political funding.
The litigation that culminated in the exceptional judgment was initiated by an organisation appropriately designated My Vote Counts (MVC).
The historic judgment has significant and far-reaching consequences for the integrity and practice of constitutional democracy and political administration in South Africa.
In its judgment, the court held that the voters, who constituted the sovereign electorate of the country, had the right to be informed about the sources of the private funding of political parties.
Chief Justice Mogoeng Mogoeng handed down a judgment in an application for the confirmation of an order of constitutional invalidity made by the Western Cape High Court by Judge Yasmin Meer, who had held that information about private funding of political parties and independent candidates, who were registered for elections, was “reasonably required for the effective exercise of the right to vote in such elections and make political choices”.
In his confirmatory judgment, Chief Justice Mogoeng declared that it was a primary duty of the state to provide the voters with information that would enhance the exercise of their right to vote in a holistic manner, having access to all the relevant considerations and information.
The genesis of the judgment is found in the conduct of MVC when it sought information relating to private funding of some political parties in terms of the Promotion of Access to Information Act (PAIA).
Counsel for MVC argued cogently and persuasively that although PAIA was the national legislation mandated by section 32 of the Constitution, authorising the seminal right to information, it had failed to do so.
That glaring deficiency was confined to access to information relating to the private funding of political parties and independent candidates.
The gravamen of the case had to deal with the interpretation and application of certain provisions of PAIA that were employed by some of the parties concerned to refuse disclosure relating to their private funding.
However, as argued by counsel, a proper understanding and construction of section 32 read with sections 19 and 7(2) of the Constitution imposed on Parliament an obligation to enact legislation that provided for the record and disclosure on the private funding of political parties and independent candidates.
The political and constitutional transparency must, according to MVC, facilitate in no uncertain terms the fight against endemic corruption that was inextricably bound up with the private funding of political parties.
It was also further contended that PAIA, constituting legislation specifically adopted to facilitate access to information, had demonstrably failed to do that in relation to party-political private funding.
The high court concluded that PAIA applied to neither political parties nor independent candidates nor to relevant records on private funding.
That constituted a glaring inconsistency with the provisions encapsulated in sections 32, 7(2) and 19 of the Constitution, considered holistically.
As a result, Chief Justice Mogoeng with Justices Petse, Zondo, Dlodo, Goliath, Jafta, Khampepe, Madla and Theron for the majority concurring, held that the State was under a constitutional obligation that flowed from a proper and contextual reading of the triple provisions of sections 32, 19 and 7(2) of the Constitution to take all reasonable steps to provide practical and concrete expression to the right of access to the relevant information essential for the members of the electorate to exercise their seminal right to vote in a constitutionally meaningful manner.
In addition, the majority of the Constitutional Court contended that that was essential since the exercise of the right to vote must by its very nature, be an informed choice, and that there was a crucial connection between the exercise of the franchise and the right of access to the relevant information.
In that regard, the judgment declared “without access to information, the ability of citizens to make responsible political decisions and participate in public life is undermined”.
The disclosure of such funding required by the judgment, it was emphasised, was imperative. As a result there was a constitutional obligation to record, preserve and make information concerning private funding reasonably accessible to the electorate. It must also be transparently accessible to the media, NGOs, academia and other political players.
It is therefore clear that sections 16 and 32 of the Constitution must be interpreted to facilitate a broad dissemination of information that is essential for the optimum functioning and vibrancy of our system of constitutional democracy and all that this entails. For instance, the majority declared that such disclosure of private funding could assist the electorate to detect whose favours political players were likely to reciprocate, once elected into public office.
The court, mindful of the doctrine of separation of powers, indicated that the parliamentary process in relation to a proposed private funding regulatory legislative framework would in no way be interfered with or undermined by the court’s judgment. Those were two distinct, complementary and necessary processes.
The Constitution Court, as our highest apex court, confirmed the order of constitutional invalidity and, as a consequence, ordered Parliament to appropriately amend PAIA and adopt any other measure it considered appropriate for the recording, preservation and facilitation of reasonable access to information on the private funding of political parties and independent candidates within 18 months.
In a separate concurring and most insightful judgment, Justice Froneman, concurred in by Justice Cachalia, was at great pains to explain that the right to vote was the whole citizenry’s right, and to view it only as an atomised individual right diminished our concept of participatory democracy.
South Africa has one of the most dynamic and progressive constitutional dispensations in the world. The judgment has consequences for the electorate and all political parties, but particularly the parties in the government.
The remarkable politically and constitutionally significant judgment is also most certainly going to have profound consequences of a beneficial nature for the operation and integrity of our body politic.
It will particularly have consequences for public administration in relation to sound government and the elimination of corruption and related maladies that blight and impede the optimum realisation of our constitutional democracy, which has such inordinate promise and potential.
Devenish is an emeritus professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.