Last week the Constitutional Court handed down a momentous judgment relating to party political funding. The litigation that culminated in this exceptional judgment was initiated by an organisation appropriately designated My Vote Counts (MVC). This historic judgment has very significant and far reaching consequences for the integrity and practice of constitutional democracy and political administration in South Africa. In its judgment the Court held that the voters of South Africa, who constitute the sovereign electorate of the country, have the right to be informed about the sources of the private funding of political parties.
The Chief Justice, Mogoeng Mogoeng, handed down a judgment in an application for the confirmation of an order of constitutional invalidity made by the High Court of the Western Cape by Judge Yasmin Meer who had held that information about private funding of political parties and independent candidates, who were registered for elections is ‘reasonably required for the effective exercise of the right to vote in such elections and make political choices’. In his confirmatory judgment Mogoeng declared that that it was a primary duty of the state to provide the voters with information that will enhance the exercise of their right to vote in a holistic manner having access to all the relevant considerations and information.
This is found in the conduct of MVC when it sought information relating to private funding of some political parties in terms of the Promotion of Access to Information Act (PAIA). Counsel for MVC argued cogently and persuasively that although PAIC is indeed the national legislation mandated by section 32 of the Constitution, authorising the seminal right to information, it had failed to do so. This glaring deficiency was confined to access to information relating to the private funding of political parties and independent candidates.
The gravamen of the case had to deal with the interpretation and application of certain provisions of PAIA that were employed by some of the parties concerned to refuse disclosure relating to their private funding. However as argued by Counsel, a proper understanding and construction of section 32 read with sections 19 and 7(2) of the Constitution imposes on Parliament an obligation to enact legislation that provides for both the record and disclosure on the private funding of political parties and independent candidates.
This political and constitutional transparency must, according to MVC, facilitate in no uncertain terms, the fight against endemic corruption that is inextricably bound up with the private funding of political parties. It was also further contended that PAIA, constituting legislation specifically adopted to facilitate access to information, had demonstrably failed to do this in relation to party political private funding.
This High Court referred above concluded that PAIA as presently formulated applied to neither political parties nor independent candidates nor indeed to relevant records on private funding. This constituted a glaring inconsistency with the provisions encapsulated in sections 32, 7(2) and 19 of the Constitution, considered holistically.
As a result, Mogoeng as Chief Justice, with Judges, Petse Zondo, Dlodo, Goliath, Jafta, Khampepe, Madla, Petse and Theron for the majority concurring, held that the State is under a constitutional obligation that flows from a proper and contextual reading of the triple provisions of sections 32, 19 and 7(2) of the Constitution to take all reasonable steps to provide practical and concrete expression to the right of access to the relevant information essential for the members of the electorate to exercise seminal right to vote in an constitutionally meaningful manner.
The majority of the Constitutional Court in addition contended that this was essential since the exercise of the right to vote must by its very nature, be an informed choice, and that there is a crucial connection between the exercise of the franchise and the right of access to the relevant information. In this regard the judgment declares ‘without access to information, the ability of citizens to make responsible political decisions and participate in public life is undermined’. The disclosure of such funding required by the judgment it was emphasised was imperative. As a result there is a constitutional obligation to record, preserve and make information concerning private funding reasonably accessible to the electorate. It must also be transparently accessible to the media, NGOs, academia and other political players.
It is therefore clear that sections 16 and 32 of the Constitution must be interpreted to facilitate a broad dissemination of information that is essential for the optimum functioning and vibrancy of our system of constitutional democracy and all that this entails. So for instance the majority declared that such disclose of private funding could assist the electorate to detect whose favours political players are likely to reciprocate, once elected into public office.
The Court, mindful of the doctrine of separation of powers, indicated that the current parliamentary process in relation to a proposed private funding regulatory legislative framework will in no way be interfered with or undermined by the Court’s judgment. Indeed these are two distinct, complementary and necessary processes.
The Constitution Court as our highest apex Court confirmed the order of constitutional invalidity and as a consequence ordered Parliament to appropriately amend PAIA and adopt any other measure it considered appropriate for the recording, preservation and facilitation of reasonable access to information on the private funding of political parties and independent candidates within a period of 18 months.
In a separate concurring and most insightful judgment, Judge Froneman, concurred in by Judge Cachalia, was at great pains to explain, inter alia, that the right to vote is the whole citizenry’s right, and to view it only as an atomised individual right diminishes our concept of participatory democracy.
South Africa has one of the most dynamic and progressive constitutional dispensations in the world. The judgement has, inter alia, consequence for the electorate, all political parties, but particularly those parties in government. This remarkable politically and constitutionally significant judgement by the Constitutional Court is also most certainly going to have profound consequences of a very beneficial nature for the operation and integrity of our body politic as a whole and in particular, public administration in relation to sound government and the elimination of corruption and related maladies that at present blight and impede the optimum realisation of our constitutional democracy, which has such inordinate promise and potential.
George Devenish is an emeritus professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.