Judge Edwin Cameron said 'knowing the private sources of political parties' funding' was part of our right to vote knowingly for a party.
Non-profit organisation My Vote Counts (MVC) has called on all political parties to start working on legislation that would force them to disclose information about their funding.
On Wednesday, a majority of the Constitutional Court dismissed MVC’s application: it wanted the court to find that Parliament had failed in its constitutional obligation by failing to pass this legislation. MVC wanted an order directing Parliament to pass this legislation in 18 months.
The majority disagreed, but a minority judgment would have granted MVC’s wishes.
Justices Sisi Khampepe, Mbuyiseli Madlanga, Bess Nkabinde and Leona Theron were responsible for the majority judgment, with Chief Justice Mogoeng Mogoeng and Justices Mahube Betty Molemela and Zukisa Tshiqi concurring.
The minority of the court that differed were Justices Edwin Cameron, Johan Froneman and Achmat Jappie, and Deputy Chief Justice Dikgang Moseneke.
All parties agreed that citizens needed information about who funded political parties to exercise their right to vote fully. But the dispute centred on whether or not Parliament had passed sufficient legislation to enable citizens to access information about party funding.
Section 32
Section 32 of the Constitution guarantees the right of access to information that is required to exercise or protect any other right. MVC said the right to vote is one such right and that the information required to exercise it is details of political party funding. MVC said that the right to vote cannot be fully exercised without this information.
Parliament is the body responsible for passing legislation that gives effect to the right to information – an obligation imposed on Parliament by Section 32(2) of the Constitution.
In opposing MVC’s application, the speaker of the National Assembly and the chairperson of the National Council of Provinces (or “Parliament”) said Parliament had fulfilled this obligation by passing the Promotion of Access to Information Act (Paia), which allows citizens to petition public and private bodies for information.
But MVC said Paia was only partially useful when giving effect to the “full” right to access to information. While Paia did not limit the right – and so it did not need to be challenged – it “only partially regulated the matter”, said MVC.
The majority of the court found that MVC should have challenged the Constitutional validity of Paia in the high court because of the “subsidiarity” rule, which says the Constitution is subsidiary to, or supportive of, the legislation that is in effect to give effect to that right. So a litigant cannot seek to enforce a right without first attacking the legislation.
‘Prime mechanism’
In explaining this rule, Cameron, writing for the minority, said: “Once legislation to fulfil a constitutional right exists, the Constitution’s embodiment of that right is no longer the prime mechanism for its enforcement. The legislation is primary. The right in the Constitution plays only a subsidiary or supporting role.”
But the minority did not agree that the rule applied in this case. It found that at issue was not Paia’s validity, but its reach.
“Parliament’s argument is mistaken,” said Cameron. “It misconceives the nature of the applicant’s challenge to Paia. Subsidiarity is inapplicable because Paia’s constitutional validity is not in question.”
The minority said the “difference between a constitutionally invalid statute and an unmet constitutional obligation” was “subtle but fundamental”. And MVC wanted to demonstrate the latter, not the former. This meant that the majority had misunderstood the application and sought to “recast” it as a challenge to the constitutional validity of Paia.
At the heart of MVC’s case was not that Paia was insufficient in and of itself, but that more legislation was needed to fully give effect to the right to access information.
Not the only law
As the minority noted, Paia is not the only law Parliament has passed in fulfilment of Section 32:
“It [Paia] is like many other legislative provisions Parliament has enacted in fulfilment of section 32. It, together with the other legislation, constitutes an indispensable measure to fulfil the provision’s promise. The applicant’s point is that Paia is not all that section 32 requires; it fails to exhaust the obligation the provision creates. Other legislation is needed, too. Paia is constitutionally necessary, but not sufficient.”
The minority was persuaded that Paia did not fully give effect to the right. This was because, as noted by the minority, for millions of voters to have access to political party funding under Paia, each person would have to apply to the political parties requesting specific information.
MVC said this was simply impractical. Paia requires applicants to know exactly what information they want. Without knowing what information the political party has on their funders, and if that information was verbal, no one could apply to get that information under Paia.
‘Subset’ of information
Advocate David Unterhalter, during oral arguments before the court in February, said Paia only regulated a “subset” of information: records. In terms of Paia, only specific records requested once-off by a specific party at a specific time could be obtained.
So a party had to know exactly which records were in the political party’s possession. And political parties were not obliged to keep records of their donations.
He said the word “record” as defined in Paia did not give full effect to the term “information” as intended by the Constitution.
MVC said that while it was disappointed with the majority’s decision, the minority judgment has painted a “clear way forward”.
MVC campaign co-ordinator Judith February said: “All along it has been our contention that the constitutional right of access to information and the right to vote place a duty on political parties to reveal their sources of funding. In addition, we argued that Parliament has a constitutional obligation to enact specific legislation to mandate this disclosure, in addition to the wide general provisions of Paia.”
Extreme disappointment
The Right2Know Campaign said it was extremely disappointed at the outcome. While the public had a right to know how political parties were funded, the majority judgment “falls short of delivering the justice needed to exercise that right”.
Right2Know said it agreed with Cameron, who wrote for the minority: “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.”