Democratic Alliance leader Mmusi Maimane. Picture: ALON SKUY
Democratic Alliance leader Mmusi Maimane. Picture: ALON SKUY

The Constitutional Court’s recent judgment in the My Vote Counts case puts a spotlight on the private funding of political parties. It is surprising that this topic has not been scrutinised more closely during the first two decades of democracy.

Having left the question of political party funding unregulated, SA has had a "don’t ask, don’t tell" attitude to the issue. Parties on all sides of the spectrum have not been particularly keen to reveal their funding sources. The DA was particularly vocal about the importance of respecting the privacy of political parties.

In the recent court decision, civil society organisation My Vote Counts argued that information about political parties’ private funding is essential for citizens to exercise their constitutional right to vote in SA’s multiparty democracy.

Due to the importance of this information in the right to vote, the organisation contended that the constitutional right of access to information required the systematic disclosure of private funding to parties.

Judge Yasmin Meer found that the right to vote includes the right to cast an informed vote, stating that the right to choose a political leader "is valuable only if one knows what one is choosing". Meer found that the Protection of Access to Information Act did not adequately provide for disclosure of private funding for political parties and that the mechanisms to access information through the act were limited. She therefore held that the act limited the right to information and the right to vote.

If a member of the public wants to obtain information on party funding, they have to apply through the rather arduous procedure provided for in the act. This should not have to be the case. The information should be much more readily available.

The court has given Parliament 18 months to amend the act. It can be argued that it is not long enough, and there is a case to be made for the enactment of specific legislation on party funding.

The legislative regulation of private funding for political parties has been discussed by Parliament since 1997 and was raised again in 2003 by the Institute for a Democratic Alternative in SA and subsequently by various nongovernmental organisations and political parties.

The media have been consistently critical of instances of corruption resulting from the lack of regulation of private funding.

SA is one of very few democracies that does not regulate private funding of parties. Although legislation on public funding of political parties was enacted in 1997 in the form of the Public Funding of Represented Political Parties Act, there is still no regulation of private funding. There is also no legislation or other forms of regulation for the public or private funding of the local sphere of government.

An unregulated or underregulated system of funding does not result in a level playing field for all parties. There should be greater sensitivity to the fact that bigger political parties almost always have an undue funding advantage over smaller parties. It should further not be unduly onerous for new parties to enter the political arena.

One of the thorniest questions involves the extent of disclosure that should be expected from donors. Political parties also have access to indirect funding, which takes a number of forms including tax exemptions and subsidised access to media, meeting rooms and so on.

Tax exemption is the most common option for indirect public funding. Proper scrutiny would include access to information on funding.

Tax exemption is the most common option for indirect public funding. Proper scrutiny would include access to information on funding

There can be little doubt that the identity of contributors, and what they contribute, provides important information about the parties’ likely behaviour. Private contributions to a party are not made thoughtlessly or without motive. They are made in the expectation that the party will advance a particular social interest.

There is growing international awareness and assertion of transparency, as is evident from instruments such as the 2003 UN Convention against Corruption. Article 10(b) of the 2010 AU Convention on the Prevention and Combating of Corruption is even more important. It states that each state party shall adopt legislative and other measures to require transparency of political parties and their funding.

Since SA ratified this treaty, it has an obligation under international law to adopt measures to require funding transparency.

If the Gupta saga has taught SA anything, it is that to identify who holds influence, one needs to search for the benefactors.

Swart is professor of international law at the University of Johannesburg

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