The African National Congress appears to be shying away from legislation regulating the funding of political parties — despite an apparent commitment in court to enact such a law.
The Cape High Court last week dismissed the Institute for Democracy in South Africa’s (Idasa) plea for a ruling to force parties to disclose the source of their donations. Judge Benjamin Griesel said Idasa’s arguments were “compelling” but the Promotion of Access to Information Act did not allow him to grant the application.
In an answering affidavit in the case, the ANC committed itself to the principle of transparency, but argued that taking the matter to court usurped the powers of Parliament. It asked for the dismissal of Idasa’s application “so as to allow the political and legislative process to follow the proper course necessary for the adoption of a national policy through legislation regulating the funding of political parties”.
However, Joel Netshitenzhe, the head of the policy unit in the presidency, said he knew nothing about “such legislation”. He referred the Mail & Guardian to the Department of Justice and Constitutional Development, whose spokesperson, Kaizer Kganyago, said: “I know nothing about that [legislation]. The judgement was only passed this week so it is still early days.”
The chief legal adviser in Parliament, Eshaam Palmer, said that he was “unaware of any political decision that legislation [on party funding] must emanate from Parliament”.
ANC spokesperson Smuts Ngonyama merely remarked that the courts had vindicated the party’s view that there was no constitutional obligation to be transparent on funding sources. If the issue had to be dealt with, he added, it should be through an Act of Parliament.
Idasa brought the case before the judge in February after a 14-month stalemate. In November 2003 Idasa asked the Cape High Court to order the ANC, the Democratic Alliance (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.
Idasa’s argument was that the constitutional principle of transparency requires “full disclosure of information on financial contributions by political parties, as public bodies, [to] inspire electoral confidence, avoid secret influence … and act as a disinfectant against corruption”.
The political parties argued in varying degrees that they were private bodies which had no duty of disclosure. The ANC’s affidavit stated that, “it is a voluntary association and political party [and] not an organ of the state or public body”.
Judge Griesel found that political parties are private bodies in terms of the Act and that Idasa would have had to prove that the information about donors was required for the exercise or protection of its constitutional rights. However, it had failed to do this.
“Donor secrecy does not impugn any of the rights contained in the Constitution,” the judge said. “Disclosure of donor funding is not a prerequisite to free and fair elections.”
However, he went on to say: “[This] conclusion does not mean that political parties should not … be compelled to disclose details of private donations made to their coffers. It merely means … the [political parties] are not obliged to disclose such records … private donations ought to be regulated by way of specific legislation in the interest of greater openness and transparency.”
The basis of the parties’ argument was that the matter was being dealt with in Parliament because a private member’s Bill aimed at regulating party funding is currently before Parliament. The DA’s Douglas Gibson introduced the Bill in 2000 to compel political parties to disclose private donations.
However, the possibility of a Bill introduced by an opposition party being enacted was virtually non-existent, said Palmer.
“If the Bill introduces a good idea in line with government policy, the ruling party can take over that idea and incorporate it into another Bill. In our Parliamentary system it is very unusual for an opposition party’s Bill to be adopted; it’s never happened.”
Idasa’s political information and monitoring service manager, Judith February, said Idasa would use the ANC’s stated commitment to passing legislation “as a leverage for advocacy”.
Idasa director Richard Calland said: “We note the commitment made by the ANC to the court and in its affidavits, to present legislation that will regulate party funding in the future. We presume that this legislation will be in line with the African Union anti-corruption convention, of which South Africa is a signatory.”
The anti-corruption convention states that “each state party should adopt legislative and other measures to prescribe the use of funds acquired through illegal and corrupt practices to finance political parties and incorporate the principle of transparency into the funding of political parties”.
February pointed out that the ANC has been promising to legislate party funding since 1997, when the Public Funding of Represented Political Parties Bill was enacted. She added: “Gibson’s private members Bill hasn’t moved for five years.”