The African National Congress has reversed its policy on disclosing party donors in the wake of a landmark legal challenge to force political parties to divulge their private funders.
The court case, which was launched in the Cape High Court by the Institute for Democracy in South Africa (Idasa) on Thursday, has also brought the ANC and the Democratic Alliance together on their key defence arguments.
The litigation comes after a 14-month stalemate. In November 2003 Idasa asked the Cape High Court to order the ANC, the DA, the New National Party and the Inkatha Freedom Party to disclose donations of R50 000 or more received between January 2003 and May 2004.
The parties refused, saying that forced disclosure would cause donations to dry up, breaking the back of smaller parties and weakening multi-party democracy.ÂÂ
Now the case has come before a judge. Idasa is arguing that the principle of transparency requires that ”full disclosure of information on financial contributions by political parties, as public bodies, inspires electoral confidence, avoids secret influence … and acts as a disinfectant against corruption.”
The Idasa case is likely to have political ramifications for the ANC, which, contrary to an earlier parliamentary pronouncement, claims in its argument that it is not a ”public body” bound by codes of transparency.
The other political parties also argue, in varying degrees, that they are ”private bodies” which have no duty to disclose their funding.
The ruling party’s argument is a climb-down from a parliamentary speech in 1997 by Valli Moosa, minister of provincial affairs and constitutional development at the time that the Public Funding of Represented Political Parties Bill was enacted.
Moosa said: ”The view which the Constitution advances and which this Bill acknowledges is that political parties are in fact public organisations. They are not private organisations. They are not private clubs.
”Therefore, political parties have a responsibility not only to their members, but also to the public at large. For political parties to perform in terms of the Constitution, that is to be democratic, to be accountable and to be responsive to the people of this country, we need to ensure that parties do not act merely as fronts for some or other powerful financial backer.” ÂÂ
Idasa has brought the case under the Promotion of Access to Information Act. It is asking the High Court to declare that political parties must open their books to public scrutiny in the name of the constitutional principle of transparency. ÂÂ
The Act defines a public body as ”any department of state or administration in the national or provincial … or local sphere of government … that exercises a power or performs a duty in terms of the Constitution or a provincial constitution … or in terms of any legislation.”
The ANC argues that it is ”a voluntary association and political party [and] not an organ of state or public body … if a citizen is aggrieved by secrecy surrounding the sources of his/her political party donations, then he or she is free not to vote for that party, or to form another party.”
Judith February, manager of Idasa’s political information and monitoring service, explained: ”We support political parties’ right to raise money, and we know democracy needs cash to operate effectively. The flip side of this is that the public has the right to know the source of private donations so they can be certain no hidden hand is exercising undue influence.
”We also say political parties deserve protection from unscrupulous donors wanting to buy influence, whether over tenders or political policy.”
In democracies worldwide it is now common for political parties to disclose the identity of large donors and the size of donations. German and Spanish law require the disclosure of private funding.
During the 1999 election campaign the ANC’s budget was R283-million, of which only R43-million was received from the Independent Electoral Commission. ÂÂ
The ANC and the DA have joined hands by arguing that Idasa’s court challenge usurps the power of Parliament because a private member’s Bill aimed at regulating private funding is currently before Parliament.
The DA’s Douglas Gibson introduced this Bill in 2000 to compel political parties to disclose private donations.
The difference in the DA and ANC’s arguments is that while the DA agrees with Idasa’s principle that political parties should disclose the source of private donations, it says that this should be enacted prospectively through legislation, rather than a retrospective declaration of funding. The ANC says the principle of disclosure in general contravenes the donors right to privacy. Both parties contend that taking the matter to court is wrong, particularly as the Bill is pending. ÂÂ
But February says that the likelihood of the Bill being enacted is slim, given the ANC’s objections. ”No private member’s Bill introduced by a member of an opposition party in Parliament has been passed by Parliament since 1994,” says Idasa.
The ANC and the DA both argue that disclosure will undermine the trust of past donors because their donations were made confidentially.