Mail & Guardian

Bid to disclose party funding fails

- Sarah Evans

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The Democratic Alliance and the minister of justice initially filed opposing papers, but these were later withdrawn.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.

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