N 27 APRIL South Africa celebrated 11 years of democracy. There is no denying the many achievements and advances made since 1994, not least of which is the establishment of a robust political democracy. Yet, persistent poverty, growing inequality, HIV/AIDS and significant job losses, especially in manufacturing and the retail sector, cast a dark shadow on these accomplishments. Many of these (and other) issues are hotly contested, through existing political avenues, the media, but also – and, it seems, increasingly – through the courts. In recent years, the legal system has become more prominent in interpreting laws, policies and practice in relation to the Constitution – and civil society organisations are increasingly recognising the value of litigation as a strategy to get clarity on obscure policy implications and/or to compel government to implement specific programmes. Among civil society organisations, the Treatment Action Campaign is probably the most adept at using litigation (or the threat of litigation) to further its objectives. It has been breaking new ground with every court decision, setting new jurisprudence on critical issues. Another pioneering case is Idasa’s court action on the disclosure of funding to political parties. In Thought Matters, Judith February, head of Idasa's Political Information & Monitoring Service (PIMS), explains why Idasa has taken this issue to court and what the recent court ruling means.
Disclosure of funding to political parties: a public or private affair?
by Judith February
T IS ESTIMATED that political parties spent between R300-500 million during the 2004 election period. Only a fraction of this money was public money. Public funding for 2003-04 amounts to approximately R66 million - not nearly sufficient to fund what the parties spent on communicating with voters. In a situation in which public funding is insufficient, private donations are clearly needed.
In South Africa, there is currently no regulation of private funding to political parties. What this means is that donors can give as much as they want, in secret, to the political party of their choice. But why does regulation of private funding to political parties matter and what is the link to corruption? Democracies require strong, independent political parties operating in an open and truly competitive political system to function properly. In order for political parties to adequately fulfil their role they require sufficient resources. For some time, however, there has been concern about the manner in which political parties in South Africa are funded and more particularly about the absence of effective rules governing the receipt of private sources of support to political parties and individuals in political parties. Allegations linking prominent international political figures to party funding scandals have been witnessed around the world. Corruption or even the whiff of corruption by members of political parties merely serves to introduce an unwelcome level of cynicism about the political process amongst citizens. Moreover public trust in otherwise legitimate and credible institutions and processes of governance stands to be eroded.
In a country as unequal as South Africa, allowing the wealthy to buy influence by donating as much, in secret as they wish, may well result in the "drowning out" of the voices of the poor and marginalised who are unable to buy such influence. Thus, the regulation of party funding is, at its heart, a question of political equality. When wealth is allowed to buy influence and access by unregulated secret donations the effect on political rights and participatory democracy could lead to the average citizen's voice being eclipsed by the undue influence wielded by wealthy donors; he who pays the piper may play the tune.
This is the background and rationale to Idasa's campaign for reform. The litigation, which asserted Idasa and the public's constitutional right to information, arose from the refusal of the political parties to respond to requests for information about their private donors made under the Promotion of Access to Information Act (PAIA). The court action raised a number of ground-breaking legal and policy issues. Apart from the main issue concerning the public's right to know, and our application for a declaratory statement of principle, the case also
raised the question of whether political parties perform a public function under PAIA, at least when it comes to certain activities, such as spending the public funds that they receive.
When Idasa launched its court application it was always going to be difficult both legally and politically. The matter was heard on February 11th this year, before Judge Ben Griesel in the Cape High Court. There it was argued that citizens have the right to know who funds political parties in terms of the Constitution. In addition, where PAIA was invoked, it was argued that political parties are primarily public bodies and therefore there was a clear right to the information being sought. However, even if for the sake of the court case, it was held that political parties were, in fact, private bodies, it was argued that Idasa and the two other applicants needed the information for the exercise of Constitutional rights, in particular, the right to vote encapsulated in section 19 of the Constitution.
In a show of solidarity which surprised even the court, all political parties opposed the action. In essence, political parties argued that they are voluntary associations or private clubs- with no obligation to reveal the identity of their private donors as fund-raising was a private matter concerning only the party. Idasa's argument that political parties are public bodies remains premised on the fact that such parties exercise public power, receive public money and have a public face both during and between elections. The distinction between exercising public or private power has important implications for democratic accountability and for the political process in particular. Despite Judge Griesel's finding that the definition of a public body is "a fluid one", "that the division between the categories of public and private is by no means impermeable" and that 'entities may perform both private and public functions at various times…" he found that political parties remained by their nature, private entities.
Griesel J also found that Idasa and the other applicants had not established that they have a right or interest to protect once he had found that political parties were in fact private bodies. In turn, Idasa argued that the right to vote, entrenched in section 19 of the Constitution, should be construed as widely as possible. A broad interpretation of the section would mean that the right to vote becomes far more than the technical right to cast a vote and to have free and fair elections. In fact the founding provisions of the Constitution envisage a democratic process which is responsive and as open as possible. As important as the physical act of voting is, citizens are only fully able to exercise their right of political choice if they have complete information about a political party which would specifically include its source of private donations. Griesel J once more construed the right in a narrow way.
Despite the dismissal of the application, the ability to air these arguments in an open forum, has indicated, once again the robustness and maturity of South Africa's democracy. For the case tackled one of the wicked issues of democracies around the world- the intersection between money, politics and power.
Idasa is considering the prospects of an appeal. However, what the case has done, we believe, is raise issues of transparency and accountability and start a dialogue amongst citizens and also companies on the levels of accountability which should be demanded of political parties in relation to their private donations. The court, while dismissing the application however also held that "compelling" arguments were made by Idasa and that the judgment did not mean "that political parties should not, as a matter of principle, be compelled to disclose details of private donations made to their coffers." The ANC on its own papers argued vociferously that a Parliamentary process was currently underway to pass appropriate legislation. In fact, this 'process' is a private members' bill drafted by Douglas Gibson of the opposition Democratic Alliance. For such a bill to see the light of day, it would require a mammoth task of cross-party co-operation. Given this, the ANC itself will need to honour the claims in its affidavit by Secretary-general Kgalema Motlanthe that it is committed to the passage of legislation, sooner rather than later. We contend that the court case has upped the stakes considerably - and all eyes will be on the ANC to begin the process of law-making.
A NEW DARK ROAST Occasional Paper (No 21) is now available on our website. The paper, written by Charlotte Lemanski, is a critical assessment of a new development in Cape Town that combines social housing with an exclusive residential complex, which is a gated community.
For the City Yet to Come: Changing African Life in Four Cities is the latest book by AbdouMaliq Simone, published by Duke University Press. Maliq is a long-time Associate of Isandla Institute and has contributed much to the organisation’s intellectual and professional development. For the City Yet to Come is a profound critique of traditional urban theory and planning perspectives, which tend to regard African cities as ‘failed cities’. Instead, Maliq Simone argues that this perspective fails to grasp the depth, texture and complexity of social life in African cities.