Party fund­ing rul­ing boosts trans­parency

ConCourt sup­port for new laws after the high court judg­ment will light up our murky pol­i­tics

Mail & Guardian - - Comment & Analysis -

the gul­lets of Tea Party can­di­dates and fel­low-trav­ellers.

For the same rea­sons, the re­cent de­ci­sion by Judge Yas­min Meer in the West­ern Cape high court, fol­low­ing lit­i­ga­tion by the or­gan­i­sa­tion My Vote Counts, is so im­por­tant. The ap­pli­ca­tion, which was up­held by the court, con­cerned, among other is­sues, a dec­la­ra­tion that pri­vate fund­ing of po­lit­i­cal par­ties and in­de­pen­dent ward coun­cil­lors is rea­son­ably re­quired for the ef­fec­tive ex­er­cise of the right to vote and to make po­lit­i­cal choices. A fur­ther find­ing was that the Pro­mo­tion of Ac­cess to Information Act is un­con­sti­tu­tional to the ex­tent that it pre­cludes pro­vi­sion of information re­gard­ing the pri­vate fund­ing of po­lit­i­cal par­ties.

The Demo­cratic Al­liance ar­gued that there were other pieces of leg­is­la­tion to deal with cor­rup­tion. As the judg­ment records: “The DA de­nies that the se­cret na­ture of do­na­tions pro­motes cor­rup­tion for, in­ter alia, the fol­low­ing rea­sons:

• Al­most all do­na­tions are un­con­di­tional and, when do­na­tions are con­di­tional, the con­di­tions are an­o­dyne;

• Pri­vate fund­ing does not af­fect party be­hav­iour and the dis­clo­sure regime con­tended for by the ap­pli­cant in­vades the rights of donors;

• Un­scrupu­lous in­di­vid­u­als would not be thwarted by manda­tory dis­clo­sure of pri­vate fund­ing; and

• The fact that do­na­tions are made to par­ties and sel­dom to in­di­vid­u­als low­ers the risks iden­ti­fied.”

To this set of ar­gu­ments, Meer said: “Much of this is gain­said by the DA’s ac­knowl­edg­ment that cer­tain do­na­tions are con­di­tional, al­beit ‘an­o­dyne’. The ap­pli­cant points out that the DA has ac­cused the ANC of us­ing po­lit­i­cal favour by re­ward­ing fund­ing with lu­cra­tive con­tract awards. It is widely re­ported … that a com­pany that was granted al­most R2-bil­lion in ten­ders from Eskom had paid R1.7mil­lion in do­na­tion to the gov­ern­ing party. This too negates the DA’s rea­son­ing above. It is fur­ther be­lied by the min­is­ter’s state­ment in his an­swer­ing af­fi­davit that the no­tion that fi­nan­cial back­ers may cor­rupt a po­lit­i­cal sys­tem, is cor­rect.”

In con­clud­ing this is­sue, Meer said: “The prospect of po­lit­i­cal par­ties be­ing be­holden to donors, es­pe­cially sub­stan­tial donors, cre­ates con­sid­er­able scope for cor­rup­tion, sub­mits the ap­pli­cant. Se­cret fund­ing cre­ates the risk that public of­fi­cials may ex­tend un­due and un­de­tected favouritism to­wards those that funded their po­lit­i­cal progress.”

The up­shot of this im­por­tant judg­ment is that the prin­ci­ples of trans­parency and ac­count­abil­ity in public life have been vin­di­cated. Fur­ther­more, the court has recog­nised the clear link be­tween fair elec­tions and the right of vot­ers to ex­er­cise a free and fair choice be­tween par­ties, tak­ing into con­sid­er­a­tion the sources of their pri­vate fund­ing.

It was also ar­gued that the dis­clo­sure of pri­vate fund­ing breaches the right of pri­vacy of both the po­lit­i­cal party and the pri­vate donor. The court was hav­ing none of that. Given the public na­ture of po­lit­i­cal par­ties, and the fact that the pri­vate funds they re­ceive have a clear public pur­pose, their rights to pri­vacy can jus­ti­fi­ably be limited. The same prin­ci­ples must, as a nec­es­sary corol­lary, ap­ply to pri­vate donors.

First prize for the most bizarre ar­gu­ment must go to the DA, which ar­gued that there was no ev­i­dence demon­strat­ing “how the right to vote is im­pov­er­ished by the ab­sence of a dis­clo­sure regime in re­spect of pri­vate fund­ing information”. In a con­text of wide­spread cor­rup­tion at least from the time of the arms deal at the dawn of democ­racy and per­sis­tent al­le­ga­tions of state cap­ture, it is as­tound­ing that it could be se­ri­ously con­tended that the right to vote is not im­per­illed by pri­vate fund­ing.

That pri­vate fund­ing has been at the root of these al­le­ga­tions is suf­fi­cient ev­i­dence to jus­tify the greatest pos­si­ble trans­parency re­gard­ing the pri­vate fund­ing of po­lit­i­cal par­ties.

The DA also sought to ar­gue that, as a mi­nor­ity party, its fun­ders would be de­terred if their con­tri­bu­tions were made public; that is, that the rul­ing party would ex­act ret­ri­bu­tion or be per­ceived to so act if mi­nor­ity party fund­ing was dis­closed. The court found this to be an un­sub­stan­ti­ated ba­sis on which to re­ject the ap­pli­ca­tion.

If up­held by the Con­sti­tu­tional Court or by much-promised leg­is­la­tion, this judg­ment rep­re­sents an im­por­tant step on the road to re­dis­cov­er­ing ur­gently needed trans­parency in our po­lit­i­cal life.

Democ­racy in ac­tion: Reg­u­lat­ing the pri­vate fund­ing of po­lit­i­cal par­ties will lessen the risk of par­ties be­ing be­holden to donors and vul­ner­a­ble to cor­rup­tion, the high court found. Photo: Paul Botes

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