Naming will simply drive party donors further underground, says Ivor Sarakinsky.
Johannesburg - February 10 was one of the hottest days in Joburg in 50 years. On this day, coincidentally, the Constitutional Court heard another round in the battle between NGOs and political parties over the disclosure of private donations.
The arguments, however, might have contributed to the heat, but did not generate much light.
In a previous incarnation of this battle, the erstwhile African democracy think tank, Idasa, lost its high court application for political parties to disclose the identities of private donors in terms of the Promotion of Access to information Act.
The court declared this act was not the appropriate instrument to use in trying to access this kind of information.
A small and obscure NGO, My Vote Counts, has since served papers on the Speaker of Parliament and all political parties, arguing that the secret donations regime is unconstitutional.
In its heads of argument, it declares that Section 32.2 of the constitution requires the passage of new legislation enabling access to information on private donations because the Public Access to Information Act, as noted by the judge in the Idasa case, does not apply to political party finance.
In support of this claim, My Vote Counts says that Section 19.3 of the constitution supports such specific legislation, to ensure citizens are able effectively to exercise their right to vote.
In its heads of argument, My Vote declares: “In short, the right of access to information held by political parties, which is required for the effective exercise of the right to vote, cannot be given effect to, without the enactment of the lacking legislation.”
This assertion has numerous and substantial implications. On the one hand, it declares that without information on political donations, voters are unable to exercise effectively their right to vote.
Instead of the conventional approach to evaluating voter choice, with a focus on manifestoes and the dissemination of policy information, My Vote aims to insert another criterion into the debate on voter preference formation.
But why arbitrarily stop at donor disclosure?
The logic of this argument suggests parties should publicise the names of their full-time office bearers, their salaries, the kind of cellphones they use, as well as who may be advising them.
Surely, voters don’t need to know this. They need to know what the party stands for and what it will do for them once in power. Otherwise, where does one draw the line in the provision of party information necessary for voters to exercise their right to vote?
Arising out of My Vote Counts’ argument is the implication that over the past 20 years, voters in five successive national, provincial and municipal elections have been unable to exercise their constitutional right to vote.
Despite successive international observer missions declaring South African elections free and fair as well as exemplary, My Vote would have us believe all elections since 1994 have been fatally and fundamentally flawed because voters did not know who donated to parties.
If it is correct that successive elections have been fatally flawed, it would follow that successive governments do not have meaningful mandates from citizens and every law, policy and administrative action taken since 1994, in terms of the constitution, is blemished and possibly void.
Legislation enacted since 1994 is no longer binding as successive legislatures have been improperly constituted. All decisions made by the executive, including the appointment of judicial officers, have been to no avail as citizen choice has been impaired.
If one were to follow the logic of this argument, then South Africa’s democratic miracle is a mirage.
All actions since 1994 have been the fruit of a poisoned tree.
Factually and normatively, this cannot be.
Returning to the substantive issue of disclosure, in Sweden parties are not obliged to disclose their private donors, and elections there are beyond dispute.
They are considered highly representative and are said to be free and fair.
In many democracies, there are disclosure and regulation regimes for sanitising politics and preventing major donors from overly influencing parties and government policy.
The record of these disclosure regimes in keeping politics clean is less than impressive. My Vote Counts, unfortunately, exaggerates the cleansing effect of regulation and disclosure.
Scandal upon scandal in many countries, including the US, UK, France, Japan and Germany, has shown the contrary, that politicians are hardly concerned with disclosure compliance and have become adept at finding loopholes, or worse, in circumventing them.
A few examples will suffice. Private, undeclared donations to “public interest” organisations not officially affiliated to political parties fund attack advertisements at the time of elections against political opponents.
Ask US Secretary of State John Kerry about this – it destroyed his 2004 presidential election campaign.
In the UK, an ingenious device, a non-repayable loan, was used by the main parties to keep large donations from influential people out of the public eye. These examples are important because they demonstrate that the abuses have occurred in a context of tightly regulated private donations.
Albert Einstein once defined insanity as “doing the same thing over and over again and expecting different results”.
Disclosure has not worked in other countries. My Vote Counts asks that the Constitutional Court compel Parliament to follow suit. Instead of repeating what other countries have experienced, there are many reasons not to pursue disclosure mechanisms for regulating private political donations.
Credible democracies insist on secret ballots to prevent voters from present and future harassment. South Africa’s constitution enshrines this in Section 19.3a.
This same rationale for a secret ballot applies to donors who may perceive that their disclosed support for a political party might lead to a vindictive response. If donors do not contribute to the democratic process out of fear, then their rights to free speech and association are undermined.
Company donations to parties in South Africa have dried up due to corporate governance disclosure practices.
Disclosure may affect democracy by inhibiting private donors from participating in the democratic process.
This will reduce parties’ ability to pursue effective infrastructure and campaigns. With less information at election time, citizens are prevented from meaningfully exercising their right to vote.
The American Supreme Court recently struck down sections of the donations regulatory regime on the grounds that they interfered with the right of donors to engage in free speech.
My Vote Counts, unfortunately, focuses solely on donor disclosure and ignores other mechanisms that would better regulate parties without the negative consequences.
Thinking sanely, we could envisage a regime where parties could be compelled to declare their audited expenditures, without naming donors.
Reporters could then pursue leads and identify and expose undue influence peddling.
In South Africa, investigative journalists have uncovered private funding abuse in parties more effectively than any convoluted and costly disclosure regime could.
The disclosure of donors does not clean up politics. It results in private money in politics being pushed further into the shadows, making its influence more opaque.
Let’s hope the Constitutional Court justices deliberate soberly on the complexity of this issue and not rely on an NGO’s one-dimensional viewpoint on a matter of great concern to citizens and political parties.
Money will always find a way into party coffers.
We can aim prudently for effective policy or we can gung-ho achieve spectacular but pyrrhic victories whose unintended consequences would be far worse than what we have.
* Ivor Sarakinsky teaches in the School of Governance at the University of the Witwatersrand, Joburg.
** The views expressed here are not necessarily those of Independent Media.