Boost for democracy in SA
Constitutional Court orders change in legislation on funding of political parties
Last month the Constitutional Court handed down a momentous judgment relating to party political funding.
The litigation was initiated by an organisation appropriately designated My Vote Counts (MVC).
This historic judgment has very significant and far-reaching consequences for the integrity and practice of constitutional democracy and political administration in SA.
In its judgment the court held that the voters of SA 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”.
Mogoeng declared 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.
MVC sought information relating to private funding of some political parties in terms of the Promotion of Access to Information Act (PAIA).
MVC argued the constitution imposed on parliament an obligation to enact legislation that provided for both the record and disclosure on the private funding of political parties and independent candidates.
This political and constitutional transparency must, according to MVC, facilitate 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 inforwas mation, had demonstrably failed to do this in relation to party political private funding.
The Constitutional Court held that the state was under a constitutional obligation 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 an constitutionally meaningful manner.
The court contended this was essential since the exercise of the right to vote must, by its very nature, be an informed choice, and that there a crucial connection between the exercise of the franchise and the right of access to the relevant information.
As a result of the judgment there is 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.
So, for instance, the court 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 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 a period of 18 months.
South Africa has one of the most dynamic and progressive constitutional dispensations in the world.
The judgment has, inter alia, consequence for the electorate and all political parties, but particularly those parties in government.
This remarkable politically and constitutionally significant judgment is also most certainly going to have profound consequences of a very beneficial nature for the operation and integrity of our body politic as a whole.
In particular, it will affect public administration in relation to sound government, and the elimination of corruption and related maladies.
George Devenish, emeritus professor at UKZN and one of the scholars who assisted in drafting the interim constitution in 1993