Opinionista Judith February 1 October 2015

Fight for open government: A marathon not a sprint

Wednesday's Constitutional Court judgment was a setback for the fight for legislation to regulate private funding to political parties, even as South Africans marched against corruption. But the fight is not over. More than ever before South Africans have to consider the fight for open government and transparency as a marathon and not a sprint.

Wednesday was one of those strangely South African days where big events collide.

As crowds starting milling into Pretoria and Cape Town for the Unite Against Corruption marches, the Constitutional Court was handing down its judgment in the My Vote Counts v The Speaker of Parliament and Others case. My Vote Counts had brought the application, arguing that Parliament had a constitutional duty to initiate legislation which regulated private funding to political parties.

In a strange case of irony, just days earlier Hitachi agreed to pay $19-million to settle the Securities and Exchange Commission (SEC) charges that it violated US anti-bribery law through allegedly improper payments tied to the supply of boilers to Medupi and Kusile power stations. Hitachi agreed to the settlement without admitting or denying the SEC’s allegations — that it had violated the Foreign Corrupt Practices Act by inaccurately recording improper payments made to Chancellor House. The SEC also alleged that in 2008, Hitachi paid an additional $1-million in ‘success fees’ to Chancellor House, which was improperly booked as consulting fees.

The African National Congress (ANC), predictably dismissed the SEC matter and claimed to know nothing about the so-called ‘success fees’, instead preferring to distance itself from the workings of Chancellor House. This serves as just another example of the corrosive impact of money on the political process and what happens when political parties seek dubious means to raise funds. In May this year, Democratic Alliance (DA) leader Mmusi Maimane also committed to raising as much money as possible ahead of the 2016 local government elections. Maimane said he would have to “get my hands dirty”. A rather unfortunate turn of phrase given the eyebrows that had already been raised after the DA’s Helen Zille found herself having a curry with the Guptas a while back.

And so while the majority judgment of the Constitutional Court was disappointing, the fight is not yet over. The majority judgment of the court found that even though the public does have the right to know who funds political parties, MVC should rather have challenged the failure of the Promotion of Access to Information Act (PAIA) to allow for the ongoing release of party funding information. The minority judgment, penned by Judge Edwin Cameron and supported by Deputy Chief Justice Dikgang Moseneke, Justices Achmat Jappie and Johan Froneman was rather more agreeable and more elegantly argued. Cameron, for the minority judgment, said succinctly;

So the right to vote does not exist in a vacuum. Nor does it consist merely of the entitlement to make a cross upon a ballot paper. It is neither meagre nor formalistic. It is a rich right – one to vote knowingly for a party and its principles and programmes. It is a right to vote for a political party, knowing how it will contribute to our constitutional democracy and the attainment of our constitutional goals. Does this include knowing the private sources of political parties’ funding? It surely does.”

The immediate response of the chief whip of the ANC in Parliament was also somewhat predictable, accusing My Vote Counts of acting in “bad faith” and saying the ANC would be revisiting its Polokwane resolutions to put “in place an effective regulatory architecture for private funding of political parties and civil society groups to enhance accountability and transparency to the citizenry”. Quite what a regulatory architecture for the funding of civil society groups might look like is anyone’s guess and sounds somewhat ominous.

When the Institute for Democracy in Africa (Idasa) brought its matter before the Cape High Court in 2005, attempting to compel political parties to reveal their sources of funding, the case was lost too, though on different grounds and it is largely agreed now that Judge Benjamin Griesel erred in his rather narrow judgment at the time. Idasa then decided not to appeal, taking the ANC at its word that it would deal with the regulation of private funding in Parliament. Ten years on, the situation remains depressingly the same. The only difference is that since 2005 there has been scandal upon scandal involving the politically connected that donate to political parties (mostly the dominant ANC). The Hitachi-Chancellor House matter is possibly the high water mark regarding the blurring of the lines between party and state and the unbridled conflicts of interest which occur when political parties run the state and have investment arms which tender for state contracts.

My Vote Counts is certainly considering its legal options and is likely to challenge the constitutionality of the Paia in the High Court. This action may well end up back in the Constitutional Court once more on different grounds. Separately, My Vote Counts is considering making a series of very specific access to information requests regarding political donations received. This would naturally apply to the ANC, but also to the DA and other parties.

Wednesday’s anti-corruption march was the start of a movement towards people taking back the power from corrupt politicians and the wealthy and well-connected. More than ever before South Africans have to consider the fight for open government and transparency as a marathon and not a sprint. Those who seek to undermine our hard-won democracy and have the voices of the poor and marginalised drowned out, are rent-seekers without conscience. With such a network of patronage and interests to protect, it will be an uphill battle for My Vote Counts and civil society organisations lobbying for funding transparency.

Yet, rights are won only through struggle and so despite the Constitutional Court judgment, it is a fight worth taking to the ANC and other political parties. DM

Judith February is campaign coordinator for My Vote Counts.

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