16 January 2019

Who's vote is it anyways? Corporate interference in the electoral process

With elections in South Africa on the horizon, it is time to consider the role of the silent political influencers who really run the show, corporations. There is no doubting the influence that corporations carry in day to day politics both domestically and on an international scale. Take, for example, the recent arrest of Huawei's CFO for potentially being involved in violating exporting sanctions imposed against Iran. Normally, a corporation conducting business would not have a major influence on world economic growth and trade policies. However, in this scenario, the corporation has such considerable weight in the political world as a telecommunications company, that it is stirring great commotion between world leaders. The same can be said for other technology giants and data-wielding corporations that will, without a doubt, play a major role in the upcoming elections. Freedom of Information legislation is more important than ever in this era of increasing obscurity in our democratic processes. South Africans that are unhappy with current policies need to be informed of the access to information tools available to them and of their ability to make changes through the process of legitimate democratic action.

Corporate entities have an increasing reach into electoral processes. It is an internationally recognised practice where corporations donate funds or services for an opportunity to weigh in on policy decisions that affect them. This is a practice that many South Africans simply cannot afford to engage in. It allows for disproportionate corporate influence in the democratic process. Those with greater contributions would have the loudest voice, essentially pushing the poorest South Africans out of the conversation. If contributions are being made, South Africans have the right to know who is providing the funding, what their interests are, and how political parties intend to use said funds in order for their vote to be fully meaningful.

Several solutions to the issue of corporate contributions and the lack of regulation in the technology field have been considered by technology experts. The most obvious solution would be to rule out the ability for corporations to contribute to electoral campaigns, whether fiscally or in the form of data provision. However, this would be detrimental to the livelihood of individuals who work for these companies. These companies are run by humans that work for a wage to support themselves and their families, like anyone else. To strictly rule out the work of technology companies might have the impact of putting these people out of work. Removing the data all together would have a negative impact as well. It is appealing to do away with it all, so that all parties have a level playing ground, but this halts progress in policy development. While data can be used to help politicians target demographics for votes, it also helps them make better policy decisions. To ignore how useful the data can be would be a waste. Thus, while it is the most clear, it would likely be the least effective solution.

A better solution lies in education for all parties involved. Corporations need to understand not only why transparency is important to the public, but how to increase transparency if they would like to be involved in the democratic process. They also need to be aware of the impact of their contributions to political campaigns, whether it is capital or data, in order to thwart corruption or even the appearance of corruption. Similarly, politicians and political parties need to be educated regarding their ethical roles in receiving contributions and what they give in return for it. Akin to corporate bodies, those who aim to become involved in policy making need to prioritize transparency and openness in their practices for the purpose of keeping the democratic process honest. Finally, it is most important to educate voters. Voters can use their constitutional rights in the form of the right to information and access to information laws to demand that policy makers and potential policy makers show the funds they are receiving and what is being done with them. Unfortunately, freedom of information legislation is only as strong as the politicians choose to make it. It is therefore up to voters to back policy makers that put emphasis on transparent governance in order for the current state of access to information legislation to improve. Democracies are stronger when voters engage and interact with the democratic process beyond the vote, which includes employing access to information legislation.

Freedom of Information promotes trust, good governance, and accountability in the government. It allows citizens to attain information to make informed decisions regarding how the country should be run and policies that will be most effective in their lives. Access to information legislation is needed in order to put the right to information into practice. In South Africa, the Promotion of Access to Information Act (PAIA) is limited in its reach into private entities versus those that are public. In order to submit a request to a private corporation using PAIA, one must complete a Form C, which differs from a Form A due to a section which requires the requester to explain why the record requested is required for the exercise or protection of the listed rights. Granted, in some cases this extra step is justified, for example, when protecting personal data and trade secrets or because a request is frivolous. However, there is a lack of balance in private entity requests due to a lack of internal appeal process. When a request is dismissed, the next option for the requester is to proceed to litigation.

Moreover, the extra justification hurdle for private entity requests has not been clearly defined by the courts, making it burdensome for requesters to draft successful requests. The legal test is simply that the information requested must be reasonably required and there should exist a substantial advantage or an element of need on the requester's part. The question of entitlement is decided on a case by case basis. The issue with this test is that it has not been determined what satisfies 'an element of need'. There are no clear parameters, and without guidelines, corporations can easily deny the request without fear of an internal appeal, as PAIA does not accommodate for internal appeals against private entities. The next course of action would be to proceed to litigation, which is not an option for many citizens that are trying to access information that should be readily available. Evidently, achieving corporate transparency with the current state of access to information legislation would be difficult to achieve for the everyday citizen without experience in drafting.

The intertwining of business and politics is more than cause for concern and inspection of these corporate giants and their inner workings. They have far more political reach than is articulated by their company mandates and the South African freedom of information legislation is limited in its capacity to reach corporate documents that can help explain what is happening with the capital and data that they are sharing. At the end of the day, the amount of capital or data that a corporation contributes to a campaign should not allow it a greater voice or representation in a properly functioning democracy. Having access to this information when heading into the polls and, in general, is necessary to help battle corruption in our democracy. Regulating technology is one solution, but would likely work best in combination with stronger freedom of information legislation. We need to embrace the wave of flourishing technology and work to create a governing strategy that ensures safe and appropriate use for all, not just a select few. In this way we can strive for and attain a stronger, more legitimate, democracy.