24 July 2017

Is it important for the right to vote to know who funds the parties on the ballot?

It seems almost ridiculous that that is even a question, and yet it seems Parliament needs convincing given that 23 years into democracy - and despite promises and legal battles - there is no legal duty to disclose this information. So when the Ad Hoc Parliamentary Committee on the Funding of Political Parties (the Committee) invited submissions on the model of public and private funding for political parties and the desirable and possible means of regulating all forms of private funding as well as investment entities owned by political parties, civil society responded en masse.

Submission by My Vote Counts

My Vote Counts (MVC), an organisation campaigning to improve the accountability, transparency and inclusiveness of elections and politics in South Africa in order to give us all a stronger voice, has been engaging with Parliament for 5 years around the regulation of political party funding. MVC's submission makes the point that any conversation on "state capture" would be incomplete without a look at the "capture" of political parties as well. MVC notes that the key principle that should underlie the regulation of political party funding is transparency, and that transparency is the key to rebuilding trust in the political system. MVC's submission doesn't ignore the need to protect the privacy and association rights of individuals that make small donations to their party, calling for parliament to set a threshold amount above which more specific information about donors and the amounts they give should be disclosed.

MVC notes that foreign interest in making donations to politics in South Africa would be in support of democracy, rather than being based on any political, voting or freedom of association rights (as would be the case for South African citizens). MVC therefore proposes that foreign funding be paid into a fund from where it would be fairly distributed amongst political parties.

MVC further notes that it does not object to increases in public funding to political parties but calls on Parliament to ensure that (a) the Auditor General is tasked with auditing reports from parties on their spending of public funds and (b) any increase is tied to disclosure requirements about private funding received. MVC rightly notes that while political parties clearly need money to be able to carry out their constitutionally mandated duties, without disclosure about their finances it is impossible to determine what their funding needs are, and consequently what kind of increase in public funding would be sufficient to meet their needs.

The MVC submission goes on to make observations and recommendations about funding at local and provincial government levels, disclosure about political party expenditure, a potential need for and regulatory frame for capping the amount that can be donated by South African citizens and companies and the potential need to ban certain kinds of funding. Read MVC's full submission here.

Submission by Right2Know Campaign

The Right2Know Campaign (R2K) similarly drew on 3 years of experience engaging on these issues to make a submission that calls for "regulations to ensure full transparency in the funding and finances of South Africa's political parties, and to ensure a healthy multi-party democracy." The submission notes the impact the failure to ensure transparency in the finances of political parties has had on service delivery, and therefore on the lives of everyday South Africans. R2K also points out that as political parties fulfil a public function in their execution of a constitutionally mandated role they necessarily have greater duties of transparency and accountability than do private citizens.

R2K's submission lists key elements R2K believe should be incorporated into any regulation of private funding of political parties and, crucially, notes the need to revisit the formula by which public funding is distributed, in order to ensure public funding supports a true multi-party democracy, rather than potentially skewing it. R2K notes that political parties have "a historic opportunity to overturn the legacy of political secrecy, and move South Africa forward" in a "moment of truth". Read R2K's full submission here.

Submission by SAHA

SAHA's own submission is narrowly focused on the need for transparency and how legally enforcing transparency might look in light of the existing legal framework for access to information. As has been highlighted in most other submission, including those mentioned here, information about private funding in the political arena is necessary required to corruption, discourage corruption, and instil public confidence in the political system. It is also required in order to ensure meaningful exercise of the right to vote.

In some of the most seminal cases dealing with political rights, before the Constitutional Court, the Court found that South Africans are entitled to not just to vote but to a meaningful exercise of the right to vote. There is no doubt, in light of international research, that money buys access to politicians, access that gives opportunity to influence decisions that will ultimately impact on the lives of everyday people - when those people have little to no opportunity to influence those same decisions. If we want those South African's votes to be meaningful then, we should, at the very least, allow them access to the information that will make it clear to them who will have access to which politicians.

SAHA's submission takes note of the legal framework within which access to information law operates. It notes that while the Promotion of Access to Information Act, 2000 (PAIA) is a mechanism allowing access to recorded information it necessarily relies on legal duty to record (and in some instances make automatically or "proactively" available) information that is required by ordinary South Africans in order to exercise or protect their rights. These duties to record and make accessible information fall within laws that deal with specific sectors or issues: "sector specific legislation", such as the Companies Act, 2008 and the Electoral Act, 1998. As information about private funding to political parties is required in order to ensure the meaningful exercise of the right to vote, this information should be recorded and made proactively available to the public. But no such duty does exist within the legislation dealing with elections, and so SAHA's recommendation to the Committee is that this gap in the electoral legislation needs to be urgently addressed. SAHA also supports the call for such a disclosure regime to be nuanced enough to ensure a balance of rights; this would require a threshold amount above which there should be full disclosure and this threshold amount would need to be determined in consultation with experts. Read SAHA's full submission here.