A strong rule of law needs strong enforcement
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OPINION: There is no question that we have a promising piece of legislation that is clear on what it intends to do and on the powers of the IEC. However, the reality is that the IEC cannot be the watchdog the Act requires it to be, writes Sheilan Clarke.
Whenever a rule or law is broken, there are consequences. There is also an enforcer or watchdog to ensure that people abide by the rules and/or face consequences. What happens when we have laws that are not enforced to the fullest? What happens when an entity is unable to execute the mandate of the law?
The Political Party Funding Act (PPFA) seeks to regulate private political funding. The IEC has been given the mammoth task to record and preserve the funding information. Chapter 5 in the PPFA sets out the rules of enforcement by the Electoral Commission of South Africa (IEC).
It is clearly stated that to ensure compliance with the Act or to investigate a complaint made against a party or independent candidate, the IEC may request any person to disclose relevant information, request to enter any premises during ordinary work hours to inspect relevant books or reports, as well as request a copy of any relevant book or document.
The Act therefore gives the IEC full authority to investigate any complaint made against a party, independent candidate or donor who violates the Act. Should there be violations, the consequences are fines ranging from R40 000 to R1 million, depending on how many times the party contravened the Act.
However, the IEC has repeatedly said it would not be playing the watchdog role and that it places the onus on parties and donors to make honest disclosures quarterly. It has also asked voters to alert it should anything suspicious arise regarding compliance of the Act.
What a disappointment! There is a reason for this, though.
The IEC has often said it is under-resourced. Considering that the IEC’s core mandate is to co-ordinate and run elections (by-elections, local government elections, provincial and national elections), it is no surprise that the Party Funding Unit is an added load.
The Party Funding Unit was set up as mandated by the PPFA. After the president had signed the Act in January 2019, the IEC was given six months to prepare for the PPFA. This meant ensuring it had the relevant IT infrastructure to capture and store the disclosures and hire new staff who would be dedicated to complying with the PPFA.
The IEC must be commended for being able to establish the Party Funding Unit as well as training political parties on the online system to submit their funding information. In September, the IEC successfully published the first batch of disclosures.
Parties are mandated to disclose their private donations that have culminated over the R100 000 threshold amount every quarterly. The Act came into effect on April 1 this year, so the published disclosures accounted for April to June.
This could be why only the ANC, DA and Action SA’s information was made available. However, considering this is an election year and contesting in the elections costs between R1 000 and R3 500 a ward or council, the fact that only three parties managed to disclose is concerning.
Although the PPFA does make it imperative for parties to keep track of every cent received, the only way to know for sure if other parties reached the R100 000 disclosure threshold since April will be with the next public disclosures set for November as well as at the end of the financial year when their finances are audited.
The Act obligated all parties to appoint an independent auditor.
There is no question that we have a promising piece of legislation that is clear on what it intends to do and on the powers of the IEC. However, the reality is that the IEC cannot be the watchdog the Act requires it to be.
In a country ridden with corruption in every sphere of the government, can we really afford to have faith in our parties to be honest in their disclosures and honest in their fund-raising? History surely tells us we can’t thus it was determined in the PPFA that an independent body, such as the IEC takes, on that watchdog role? We are, therefore, finding ourselves in a tricky situation where we have a good law ready to be enforced but no enforcer capable and well-resourced to do so.
The Coalition on Party Funding was thus set up by My Vote Counts with other NGOs. We recognised that being a watchdog requires lots of time and resources investigating and ensuring compliance with the PPFA. The Coalition on Party Funding will therefore dedicate time and resources to ensure this happens. It is not to say that the IEC should not step up to the plate and do its job as instructed by the Act but, in the interest of transparency and access to information for South African citizens, we will fill that gap — for now.
* Sheilan Clarke is communications officer at My Vote Counts.
** The views expressed here are not necessarily those of IOL and Independent Media.