Bid to disclose party funding fails
Strangely, all the parties agreed, some tacitly, that political party funding should be transparent. In My Vote Counts (MVC) vs the Speaker of the National Assembly and Others (Parliament), all political parties represented in Parliament were cited. None opposed the application that asked the Constitutional Court to declare that Parliament had failed in its constitutional obligation to pass legislation giving full effect to the right of access to information.
MVC also wanted an order compelling the House to pass legislation giving full effect to this right, and ultimately making party funding transparent, within 18 months.
The Democratic Alliance and the minister of justice initially filed opposing papers, but these were later withdrawn. The absence of any contribution by political parties was something that caused Deputy Chief Justice Dikgang Moseneke, during arguments, to ask what the court was to make of this: why none had “bothered” to oppose or join MVC’s application.
The question the court had to answer, as described by Justice Edwin Cameron in a minority judgment handed down on Wednesday, was “whether Parliament has failed to fulfil an obligation the Constitution imposes on it” — specifically, whether information on the private funding of political parties is required to exercise the right to vote. “If it is, the further question is whether Parliament has passed legislation that gives effect to the right of access to this information. If not, Parliament is in breach of its constitutional obligation, and the applicant asks this court to require Parliament to remedy the breach.”
Judges Cameron, Moseneke and Johan Froneman, and acting judge Achmat Jappie, penned the minority judgment that would have opened up the books of political parties to the public. But it is the majority judgment dismissing MVC’s application that stands.
The Constitution grants everyone the right to access information that is needed to exercise other rights, such as the right to vote. The Constitution requires Parliament to pass legislation that enables this. MVC argued that Parliament failed in this respect because citizens cannot fully exercise the right to vote without information about who funds political parties.
Parliament did not explicitly disagree. But it argued that it had already done this by passing the Promotion of Access to Information Act (Paia), which ena- bles people to petition public and private bodies for information.
MVC countered that Paia did not fully “cover the field” of the right because to get information by using Paia one must know exactly what information the other party has in its possession. As no one knows how political parties are funded, this would be impossible.
MVC said the new legislation should require parties to divulge who funds them.
Also at issue was the subsidiarity principle, which says the Constitution supports legislation that gives effect to a right. A litigant cannot seek to enforce a right in court without first attacking the relevant legislation. The majority judgment said that MVC needed to attack Paia before trying to enforce the right to access information. But the minority disagreed, as the constitutional validity of Paia was not in dispute.
Cameron agreed with MVC that Paia was simply not enough to fulfil the entire right to access information, and that another piece of legislation was required.
Greg Solik from MVC told the Mail & Guardian that challenging the constitutionality of Paia now was an option the campaign was considering “very seriously”, in light of the majority judgment.