The South African National Editors’ Forum (Sanef) and the amaBhungane Centre for Investigative Journalism (amaBhungane) welcome the ruling by the Constitutional Court on the public and media’s right to know details about the private funding of political parties and independent political candidates.
In its ruling the court confirmed a Western Cape High Court judgment which found the Promotion of Access to Information Act (PAIA) constitutionally invalid for failing to make this private political funding information available to the public.
The Constitutional Court challenge was brought by non-profit organisation “My Vote Counts”.
In its judgment the Constitutional Court noted: “Transparency in the area of public funding of political parties and independent candidates helps in the detection or discouragement of improper influence in the fight against corruption.
“[Transparency] frees our public representatives to do what they promise and are obliged to do, unencumbered by potentially corrupt deals that could be enabled by undisclosable private funding. If secrecy thrives, then our constitutional project would be at risk of being betrayed or shipwrecked.”
Chief Justice Mogoeng Mogoeng noted the importance of this judgment on the right to freedom of expression: “The right to freedom of expression is available for the enjoyment of ‘everyone’ … Non-profit organisations like My Vote Counts, political parties, independent candidates, the media, the academia and indeed ‘everyone’ ought to be able to effectively exercise or protect all facets of the right to freedom of expression. We all therefore enjoy the right to freedom of expression in relation to information on private funding that is essential for meaningful participation in the electoral process.”
Mogoeng added that the media are “doubly” covered by the rights to freedom of expression “in section 16(1)(a) of the Constitution in their entitlement to information that could help them exercise or protect any right”
The Constitutional Court has previously ruled on the importance of transparency for media reporting. Former Chief Justice Sandile Ngcobo observed that: “[T]he media therefore has a significant influence in a democratic state. This carries with it the responsibility to report accurately … Access to information is crucial to accurate reporting and thus to imparting accurate information to the public.”
Transparency in Political Party Funding Bill
The judgment comes as Parliament works to finalise the Political Party Funding Bill of 2017 to regulate the public and private funding of political parties.
The Bill is presently before the ad hoc Committee on Political Party Funding at the National Council of Provinces (NCOP).
SANEF and amaBhungane made a joint submission on the draft legislation during the recent NCOP public hearings.
In their submission Sanef and amaBhungane emphasised the importance of the need for sufficient transparency mechanisms in the Bill to ensure that journalists can report accurately.
Specifically, the joint submission raised concern with a clause which allows private donors to secretly donate to the multiparty democracy fund.
It also identified other loopholes in the Bill which include:
- The absence of a disclosure requirement for donations in kind – which could include a range of services of significant monetary value.
- Silence on any disclosure requirement for monies parties may receive through party investments vehicles.
- The importance of robust enforcement mechanisms in the Bill to avoid splitting or fronting arrangements, which will conceal the identities or interests of private donors.
In oral presentations made to the Committee, Sanef and amaBhungane noted that the African Commission on Human and People’s Rights’ recently published Guidelines on Access to Information and Elections in Africa that far exceeds the disclosure requirements of the Bill presently before Parliament and urged the NCOP to consider inclusion of these requirements in the Bill.
Following the Constitutional Court judgment, Sanef and amaBhungane have written a letter to the Committee requesting that the anonymity clause for private donors to the multiparty democracy fund be reviewed, either through a direct amendment or by referral to PAIA.
Sanef and amaBhungane consider the Constitutional Court judgment and Parliamentary process to be of significant importance to our constitutional democracy and media freedom in South Africa.
Adequate and proactive disclosures of information will allow the media to do its job of holding power to account while also ensuring the public’s right to know who funds their elected officials.
For further information contact:
SANEF Council Member, Izak Minnaar – 082 412 8862
AmaBhungane Advocacy Coordinator, Karabo Rajuili – 082 365 6553
SANEF Executive Director, Kate Skinner – 082 926 6404