To the Portfolio Committee on Justice and Correctional Services
My Vote Counts (MVC), Right 2 Know (R2K) and Open Secrets (OS) address this open letter to all members in the Portfolio Committee on Justice and Correctional Services, to bring our sentiments forward on the committee’s role in fulfilling the June 2018 Constitutional Court order in the judgment on the matter of MVC vs Minister of Justice & Others.
MVC, R2K and OS are non-profit organisations, which have made a united effort towards advocating for the right of access to information on the private funding of political parties and independent candidates. Together, we promote the right to truth through advocating for more accountability and transparency in South Africa’s constitutional democracy. The right to make an informed vote cannot be protected or upheld in absence of information on the private funding of political parties and independent candidates.
At the time of its passage, the Promotion of Access to Information Act (PAIA) of 2000 was hailed internationally for linking the right to access information with the right to exercise democratic accountability and transparency. However, the implementation and compliance with the act has not lived up to that promise.
After activists failed to access information on the private funding of political parties and independent candidates through PAIA, MVC opted to litigate. In June 2018, the Constitutional Court confirmed that PAIA had failed in this regard and was inadequate in its ability to promote the right to access to information. The court ordered that Parliament amend PAIA and carry out any other means to facilitate the recordal, preservation and reasonable disclosure of information on the private funding of political parties and independent candidates.
In anticipation of your committee passing the Draft PAIA Amendment Bill (the Bill) before the December 2019 deadline and after the recently held public hearings on the bill, we would like to use this opportunity to further engage your committee before the bill’s passage.
As the key custodians of PAIA, the committee is now entrusted with shaping a key component of PAIA. After the publication of the Draft PAIA Amendment Bill, civil society organisations were able to directly engage on the contents of the amendment bill. We welcome this committee’s initiative in amending PAIA as well as its openness to receive further input on the bill.
Amongst others, some of our main concerns raised at the recent public hearings on the bill to your committee is that:
- Only donations in excess of R100 000 in one financial year will be recorded; and
- Only donations above R100 000 will be made accessible.
In the judgment, the court cautioned against being prescriptive and rightly gave agency to Parliament to determine how access to information on the private funding of political parties and independent candidates would be regulated. However, the court did provide guidance in terms of what an amendment of PAIA should seek to achieve.
Not only did the court confirm that the right to make political choices depends on the right to access information on the private funding of political parties and independent candidates, but paragraph 8 of the judgment states that:
“And when it is known who is funded by whom, the likelihood or reality of political players being inappropriately influenced by those who fund them, at times to the detriment of the nation, could be detected, exposed, minimised or prevented.”
The risks involved in not recording all donations is that it will bar necessary transparency and access to information which could detect whether a donor sought to intentionally and strategically disguise its contribution(s) to a political party or independent candidate.
To illustrate the risk, one obvious example in which a donor can do this is by donating through more than one person or entity. If such a donation is made, multiple donations under R100 000 can be made, cumulatively adding up to more than R100 000. In order to detect and deter such or any other cases to circumvent transparency, it would be necessary for donations of any amount to be recorded and accessible.
The bill regulates access to information on the private funding of political parties and independent candidates, resembling the disclosure rules applied to political parties in the Political Party Funding Act (PPFA) of 2018 and limiting the disclosure of donations to amounts in excess of R100 000. We see the PPFA’s provisions for regular disclosure of political parties’ private funding as a necessary system. The PPFA limits transparency to quarterly disclosures of a donors contribution in excess of R100 000 made within one financial year. Therefore, there is no onerous duty on parties to disclose donations.
We would like to urge this committee to ensure that an amendment to PAIA does not partially fulfill access to information.
The voters, particularly those whose access to democratic decision-making is limited to the vote, should also be at the centre of such considerations. We strongly feel that the court judgment’s confirmation of the need to effectively exercise the right to make political choices should extend to all South African voters in such a way that does not grossly marginalise the average South African from fair democratic participation.
If there are donors who can secretly curry favour with political leaders or parties through donating amounts of less or more than R100 000, the right to make informed political choices for the vast majority of the electorate is undermined. Simply because they lack financial means.
The prevalence of corruption in South Africa and the drastic interventions necessary requires a united effort towards strengthening an effective anti-corruption legislative framework. We would therefore like to urge all those in the committee to consider the risks open to donors to unduly influence political parties and independent candidates in secret. It is in this committee’s power to ensure that the recordal, preservation and disclosure of private funding is effectively regulated so that all private funding, of any amount, is recorded, preserved and accessible.
My Vote Counts
Right 2 Know