In a landmark decision this week, the Western Cape High Court through Judge Yasmin Meer ruled that Parliament has to amend the Promotion to Access of Information Act (PAIA) in order to force political parties to reveal their private donors. This case was brought forward by the My Vote Counts campaign which argued that voters must have this information in order to enable them to make informed choices. This decision has far-reaching consequences and will undoubtedly influence how our democracy functions in future.
To understand the gravity of this, we need to understand what the court did and did not say.
First, the court agreed with the My Vote Counts argument and as a result emphasised that there must be transparency about private political funding.
Second, while the court instructed Parliament to amend PAIA, it did not prescribe how this should be done. This is consistent with the principle of separation of powers that exists in our democracy. However, Parliament has 18 months to complete this work.
Parliament has already convened an ad hoc committee to deal with this question and this judgment will obviously have bearing on the outcome of this process. As citizens, I believe that this is one of those moments when we need to rise and make our voices heard as this particular question will shape our political landscape in future. The ad hoc committee gazetted a draft Political Party Funding Bill last week in order to provide the public with an opportunity to comment on this Bill and in addition to this I hope Parliament will explore other means of public participation because of the important consequences of this Bill.
The court held that transparency in private donations is essential, and none of us should fault this; the question that needs to be answered however is to what extent and at what cost this happens. As our lawmakers meet to consider the implications of this judgment, they must balance giving effect to the judgment and promoting participatory democracy which is essential in a multiparty democracy such as ours.
There are a few key considerations parliamentarians on both sides of the aisle should take into account as they amend PAIA.
In an article published in Daily Maverick Dr Zweli Mkhize, the Treasurer General of the ANC outlined his party’s policy on this issue. He made the case that more stringent regulations are required for private funding as these would advance transparency and accountability. My belief is that while transparency is paramount, its application should not circumvent the spirit of participatory democracy.
A private individual political donation is in itself an expression of democracy and it is sensible to expect our laws to protect this. Think of it in this way: if an individual’s vote is their secret then surely we must grant the same status to the private donations an individual makes to a political party. Revealing their identities may repel them against providing this financial support which would suppress participatory democracy and also weaken political parties which need such funding for survival. Nobody wins in this scenario.
The intention behind requiring transparency in private funding is to give citizens some assurance that our democracy is not “for sale”, so to speak. We should therefore have some regulations to provide for this.
Dr Mkhize argues for a cap on private donations in order to “protect parties from undue private influence”. My position is that the best method of preventing undue influence is that only private donors who conduct business with the state must disclose their contributions. This must also apply to foreign governments who donate to a governing party in order to avoid the appearance of “pay for play” in which donors receive favours from the state for their support.
I don’t however see this as necessary when it concerns private donors who support opposition parties. These parties do not have control of the public purse and have no business to offer donors for their support. Once these parties are in government of course, then the regulations I have proposed would apply.
It’s also worth noting that while disclosing private donations is currently not mandatory, if it would become necessary for an organisation to disclose any of its donations, PAIA may be invoked and a court would then decide on the matter. So even in the instance I have described above, opposition parties are not completely shielded from scrutiny and accountability.
One of the more worrying proposals by Mkhize is that the ANC would like to see an increase in funding allocations to parties from the national fiscus. In other words, they want more of your money. He describes a “democracy fund” through which parties will access such funding and the bigger the party, the bigger their slice of this pie.
I reject the notion that political parties have to be kept alive through taxpayer funds. Parties should instead receive funding in proportion to their electoral support in order to give effect to the democratic will of voters, as per the Public Funding of Political Parties Act.
Why should we sponsor parties that fail to attract voters at the ballot box? Why should we sponsor parties like the ANC whose support declines with every passing election? In terms of this democracy fund, which parties would be eligible to receive more funding? Those represented in Parliament or all of the more than 100 registered parties in our country?
This proposal by Mkhize has sinister undertones as it gives the impression of the last kicks of a party whose coffers are running dry and therefore wants to dip its hand further into the public purse. I can see how smaller parties would find this idea appealing as they too need more funding but parliamentarians need to remember that political parties aren’t state entities and public funds should be spent on goods and services instead of lining their pockets.
It is crucial that Members of Parliament remember that the court’s decision is intended to benefit the electorate and not politicians. Transparency shouldn’t be used as a convenient tool to stifle democracy or to enrich political parties at our expense. A fine line needs to be made between achieving transparency and the ability of citizens and organisations to privately support the party of their choice financially. Anything less than this would be tantamount to cutting the lifelines of our democracy. DM
Mondli Zondo(@MoZondo) is a columnist and a Mandela Washington Fellow. He writes in his personal capacity.
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