The votes of party funders cannot count more than those of ordinary citizens, says My Vote Counts.
My Vote Counts believes that every vote counts. And we believe it must count more than the rands and cents that political parties collect in order to campaign for public office.
When individuals or companies or foreign governments make financial donations to political parties, and they become more important than the common voter or where their voice is heard louder and taken more seriously than yours and mine, democracy is in danger.
That is why we believe every cent received by a political party in order to pursue a public promise must be accounted for. It is a simple equation: if you stand for citizens under the constitution, you will stand accountable to citizens under the principles of the constitution.
But no legislation requires systematic and proactive disclosure of private funding of political parties. Public funding, by contrast, has already been dealt with in legislation.Parliament passed this legislation in 1997 when it enacted the Public Funding of Represented Political Parties Act. This is despite the fact that private funding is estimated to outweigh the receipt of public funds considerably.
MVC seeks to change this position. The founding premise of our case is the special role of political parties in our constitutional democracy. They are in the words of the Constitutional Court, “the veritable vehicles the constitution has chosen for facilitating and entrenching democracy”.
The public can only properly hold their elected representatives accountable if they are sufficiently informed of the relative merits of the issues at stake. We therefore believe that the right to vote for a political party is a right to cast an informed vote.
Does this include knowing the private sources of political parties’ funding? We believe it does. This belief is based on what the constitution says about access to information and the nature of the political rights we enjoy.
In the light of these constitutional provisions, we originally sought an order from the Constitutional Court in 2015 compelling Parliament to enact legislation in order to give effect to these rights by regulating the disclosure of private funding information. This legislation, it was argued for several reasons, was required in addition to the Promotion of Access to Information Act, 2000 .
The majority of the Constitutional Court in My Vote Counts v Speaker of the National Assembly held that we were wrong in our constitutional interpretation.
The court held that the act was the legislation envisaged in terms of section 32 (2) of the constitution, and it was intended fully to give effect to the right of access to information. There was thus no constitutional obligation to create additional legislation. In other words, the act is the legislation that gives effect to the constitutional obligation that exists in section 32, and if MVC feels that citizens cannot get the information they need to exercise their rights, it must make a full-frontal challenge to the act itself.
So, what is MVC doing?
We are applying to the Cape Town high court for an order in terms of the constitution declaring that the act is invalid and unconstitutional insofar as it fails to make provision for the continuous and systematic recording and disclosure of information regarding the private funding of political parties and independent ward candidates.
Are we correct in our assertion that the act is unconstitutional?
The minority judgment in the My Vote Counts judgment concluded that information about political parties’ private funding is required for the exercise of the right to vote. This judgment, in reaching the stated conclusion, commended the rich and fundamental nature of the right to vote as follows.
So that right does not exist in a vacuum. Nor does it consist merely of the entitlement to make a cross on a ballot paper. It is neither meagre nor formalistic. It is a rich right - one to vote knowingly for a party and its principles and programmes. It is a right to vote for a political party, knowing how it will contribute to our constitutional democracy and the attainment of our constitutional goals.
It is important to understand that the merits of MVC’s arguments were not considered by the majority of the Constitutional Court because it held that we had come to the wrong court.
We believe the Promotion of Access to Information Act is not capable of affording the electoral citizenry the information to which they are entitled about the way political parties vying for their votes are funded. That is a context with unique demands to which the act does not address itself.
Its shortfalls include the following:
* Disclosure under the act is not automatic and is triggered only once a request has been made.
* Disclosures are, at best, limited to the specific information requested at the specific time.
* Only existing records of information are accessible under the at.
* There is no obligation to create records of private funding.
* There is no obligation to ensure continuous disclosure of private funding information in respect of political parties.
* There are a number of grounds on which access to records may be refused, which are inconsistent with the constitution.
Information that is unrecorded, such as oral communication, and information which can only be gained through access and greater transparency, such as by allowing the physical presence of observers to witness certain meetings, is not accessible under the Promotion of Access to Information Act.
On May 31 and June 1, MVC submitted various “request for information” forms to political parties currently represented in Parliament, under the act. The requests asked each to furnish us with, inter alia, a full record of all monetary donations received from private sources and foreign governments over the previous five years.
Every single party refused to provide any of the information sought.
The Promotion of Access to Information Act is inadequate. And this is why we are proceeding to court.
* The Presidency, the ANC, the DA and the EFF are among more than a dozen respondents expected to be served with papers filed by MVC in the high court. A court date has not yet been set. MVC is an organisation campaigning to improve the accountability, transparency and inclusiveness of elections in South Africa.
Party funding scandals
What harm can party funding secrecy do? Here are some recent scandals and reports that have come to light:
Last month, it was reported that the ANC might have spent up to R1 billion on campaigns for the municipal elections, although ANC spokesmen have denied this figure.
In March, following years of controversy and emerging evidence of state capture linked to the Gupta family, the ANC and government leaders publicly claimed that senior appointments had been influenced or approved by Gupta family members.
Beaufort West mayor Truman Prince wrote a letter under a municipal letterhead asking for influence in tendering decisions to profit the ANC’s electoral fund.
Last year, Hitachi Africa was fined in the US for its links to the ANC while securing deals from the South African government.
Before the 2014 elections, we saw reports that South African-born billionaire Nathan Kirsh was the donor behind the failed DA-Agang merger. Kirsh controversially has a large stake in a security company which has big contracts with the Israeli military.
The amaBhungane Centre for Investigative Journalism reported on allegations that the DA-governed Cape Town city council had overlooked its own by-laws to approve the building plans of a political donor, as well as rumours that private developers, possibly also DA donors, were behind DA mayor Patricia de Lille’s decision to back a controversial R1 billion development on the Clifton coastline. - My Vote Counts
** The views expressed here are not necessarily those of Independent Media.
The Mercury