Democracy requires that each person’s vote counts equally. But that is not enough. There are many ways to influence democratic governance, and most of them are much easier if you have money. This gives the rich disproportionate influence. And the problem has worsened as inequalities have grown in democratic societies. More and more money has flowed into politics — and businesses and rent-seekers have become increasingly savvy about using it.
One way to re-level democracy is to place limits on the money private citizens can contribute to political parties. Another is to require that all contributions be disclosed. This allows citizens to be better informed when they vote; it allows them to appreciate whose interests the competing political parties are likely to represent.
Or so the Constitutional Court of South Africa was told on 10 February 2015 by My Vote Counts (‘MVC’), a Cape Town-based NGO that advocates electoral reform. MVC wants the Court to order Parliament to enact legislation requiring the disclosure of political parties’ private funding. It says the South African Constitution (PDF) requires this. It points to section 32, which confers the right of access to information. The right in need of protection here is the right to vote in section 19 — this, MVC argues, means the right to make an informed vote. MVC also cites the right to equality in section 9, which is thwarted, it says, when the rich wield a disproportionate influence over politics.
Section 32 (“Access to information”) provides:
“(1) Everyone has the right of access to—
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.”
The right of access to information held by private persons is framed an enabling right: the right exists because, and to the extent that, it makes possible the exercise of another. The Constitutional Court has been receptive, in other contexts, to similar instrumentalist arguments. These are arguments saying, “There is a constitutional right to x (even though the Constitution does not expressly provide for it), because x is necessary as a means to exercise constitutional right y (which the Constitution does expressly recognize).”
The most groundbreaking (and controversial) example is Glenister II. There the Court held, by a narrow majority, that there is an implied constitutional obligation on Parliament to create an independent anti-corruption unit — though the Constitution nowhere deals with this issue — because only if the state effectively fights corruption will it be in a position to fulfil its duty (under section 7(2)) to protect and promote the various rights that the Constitution lists.
And, indeed, MVC deploys exactly this argument here, as an alternative to its argument based on the rights of access to information and to vote. It says the disclosure of party funding exposes and deters corrupt payments to politicians; the state has a constitutional obligation to adopt effective corruption-fighting measures; and therefore legislation requiring the disclosure is constitutionally required.
This is no surprise, because MVC’s counsel are David Unterhalter SC and Max du Plessis, who are briefed by attorneys Webber Wentzel. This is the team whose ingenious argument carried the day in Glenister II. (They also argued that case’s recent sequel, Helen Suzman Foundation, another politically loaded — and successful — application for the judicial review of legislation.) Opposite these heavyweights, representing Parliament, is Wim Trengove SC (leading Vuyani Ngalwana SC and Farzanah Karachi), one of South Africa’s most admired senior counsel and a constitutional specialist.
Parliament is the only respondent who opposes; none of the political parties cited was willing to object formally to the legislation MVC seeks. After all, the ruling African National Congress resolved at its 2007 national conference that it “should champion” measures including the “effective regulat[ion of] private funding of political parties … to enhance accountability and transparency to the citizenry”. And the leader of the Democratic Alliance, the main opposition, has said that “ideally [the party] would prefer full transparency” — but that it will not reveal its donors until a comprehensive disclosure regime compels all parties to do the same.
MVC’s first hurdle is jurisdictional. It has brought its case straight to the Constitutional Court, rather than by way of appeal. Ordinarily, therefore, the Court would not be entitled to hear it. But MVC relies on section 167(4)(e) of the Constitution, a rarely invoked provision which says that only the Constitutional Court may “decide that Parliament … has failed to fulfil a constitutional obligation”. This provision is based on the need for comity, or good relations, between Parliament and the judiciary: only the esteemed and specially composed Constitutional Court, at the top of the judicial hierarchy, can decide that another branch of government has breached its most fundamental obligations. On 30 September 2014, the Court asked for written submissions on whether it indeed has exclusive jurisdiction to hear the dispute. Parliament conceded that it did, after which the Court set the matter down for hearing. This may mean MVC has cleared this first hurdle — though the Court is not bound to accept even the parties’ common view of its own jurisdiction, and does regularly deny leave to appeal even after granting a full hearing.
The second hurdle is whether section 32 indeed entails an obligation to enact legislation compelling the disclosure of party funding. Many would have expected this to be the key battleground at the hearing. But here, again, Mr Trengove made a significant concession (though he said he made it as a lawyer serving the Court, and not formally on behalf of his client, Parliament). He accepted that citizens can meaningfully exercise their political rights only if they can see the source of parties’ private funding — leaving MVC bullish after the hearing.
But, of course, Mr Trengove was only falling back to make a strong stand at his third line of defence. His argument is this: although Parliament must enact legislation compelling the disclosure of party funding, it already has. That legislation, he says, is the Promotion of Access to Information Act 2 of 2000 (‘PAIA’) (PDF). This does not deal specifically with the disclosure of party funding, but gives a general right of access to “any record of a private body if that record is required for the exercise or protection of any rights” (section 50(1)). Mr Trengove says that MVC’s argument is self-defeating: if they are right that section 32 requires the disclosure of parties’ private funding, then those very records must already be compellable under PAIA, which uses the same wording.
Mr Trengove’s argument faces difficulties. First, the Western Cape High Court (whose decisions admittedly do not bind the Constitutional Court) held more than a decade ago that PAIA does not entitle citizens to obtain the sources of parties’ private funding. For MVC’s application is not the first time an NGO has turned to the courts to try to compel the disclosure of party funding. In 2005, the now defunct Institute for Democracy in South Africa (‘IDASA’) asked the four major political parties to disclose the private contributions they had received in the run-up to the 2004 national elections. When the parties declined, IDASA took them to Court, seeking a declaration that they were obliged under PAIA to give access to any adult citizen (including IDASA’s members) to the records of their financial contributions received in the sixteen months before the elections.
Griesel J expressed some sympathy for IDASA’s position, saying it had “made out a compelling case … that private donations to political parties ought to be regulated by way of specific legislation in the interests of greater openness and transparency”. But he held that PAIA does not, in its current form, compel disclosure. While the disclosure of the parties’ records may be desirable, it falls short, Griesel J said, of being a “prerequisite” to free and fair elections; the records are not “required”, within the meaning of section 50 of PAIA, for the exercise or protection of political rights.
MVC does not rely on PAIA. To the contrary, it is prepared to embrace Griesel J’s finding that PAIA does not compel disclosure. It says that, for that very reason, Parliament must now do more. But Mr Trengove’s rejoinder can be put the other way round: if PAIA doesn’t help MVC, then neither can the similarly worded constitutional right of access to information. This reasoning has some superficial appeal: section 32(1)(b) of the Constitution and section 50(1) of PAIA are indeed very similarly worded.
But their contexts are very different. The purpose of PAIA’s section 50 is much more limited. And this points to the most serious difficulty Mr Trengove faces: even if MVC could bring a successful PAIA application, that would clearly not give MVC what it wants. PAIA allows citizens to make a laborious application, after the fact, to obtain particular records from particular bodies. In MVC’s words, PAIA confers “the right to gain access, upon specific request, to specific records held by specific bodies at specific times”. Even then, the statute has myriad grounds on which access can be declined, or blocked, or postponed.
This is not enough, MVC argues. What is required is a prospective regime of comprehensive disclosure, to all members of the public, of all private contributions — not a regime of secrecy, subject to after-the-fact applications for isolated bits of information. That is what section 32 promises, and what section 50 of PAIA cannot ever deliver. Mr Trengove, in other words, needs to prevail with the unattractive argument that PAIA’s piecemeal and infamously cumbersome and ineffectual approach is sufficient to make the electorate as a whole meaningfully informed about the murky relationships between money and power.
An underlying question is whether political parties are “private bodies” or “organs of state” under the Constitution and/or PAIA. Griesel J held in IDASA that, “for purposes of their donation records”, political parties are private bodies within the meaning of PAIA. This is controversial, to say the least. MVC says it “is simply wrong”. The South African Constitution’s definition of “organ of state” is deliberately very broad, and is designed to include nominally private parties that in fact exercise “public power”. The meaning of these terms is still developing, and the Supreme Court of Appeal has set precedents that some consider to be retrogressive and unduly restrictive. But the Constitutional Court has long recognized that the Constitution envisages an encompassing understanding of public power. And, in its last word on the subject, the Court found that a private, for-profit company was an organ of state insofar as it had been sub-contracted by the state to distribute social grants. Can it really be that the same is not true of the political parties whose members constitute Parliament and the Executive and govern our country?
It is not clear that this makes any difference for Mr Trengove. PAIA’s tests for both public and private bodies are basically the same as the Constitution’s. So his syllogism — PAIA allows access to party funding records if and only if the Constitution does — holds either way. Nevertheless, it is hard to see how the Constitutional Court can avoid taking a position on this question when it formulates its judgment. And that will have important implications. The meaning of “public power” and “organ of state” determine the reach of South African administrative law and of the obligations imposed by its Constitution.
Even if Mr Trengove is right about all of this, that still leaves the alternative, Glenister-like argument that parties’ private sources of funding must be disclosed in order to guard against corruption. Interestingly, as in Glenister II, Mr Unterhalter and Mr du Plessis rely on international law, including the African Union Convention on Preventing and Combating Corruption (PDF), which was ratified by South Africa’s Parliament in 2005. It obliges state parties to “adopt legislative and other measures to incorporate the principle of transparency into funding of political parties” (Article 10). In opposing MVC’s application, Parliament said that this Convention had not acquired sufficient assent from other African states and was not therefore in force. This was mistaken. The Convention came into effect in 2006. It has now been ratified by 35 of the African Union’s 54 member states.
In any event, MVC’s alternative argument proposes an imaginative, instrumentalist reading of constitutional rights. It will be interesting to see whether it finds favour with the Court, which looks very different now from how it did in March 2011, when it decided Glenister II by the slenderest of majorities. In fact, the Court’s composition has changed radically within the last few months: in addition to Justice Skweyiya’s retirement in May 2014, three of the Court’s justices — Jafta, Van der Westhuizen and Zondo — are on long leave; Acting Justices Jappie, Molemela, Theron and Tshiqi, all relatively untested quantities, take their place.
But, then, circumstances in South Africa have also changed. Glenister II, which looked radical at the time it was handed down, was greeted with widespread praise, by international and local lawyers and the commentariat. But, more importantly, events the slim majority relied on — the massive predatory corruption that is leeching South Africa’s democracy — are now widely accepted within legal circles as necessitating urgent action.
Whatever the judgment ultimately holds, MVC has had a hearing before the highest court in the country. That in itself is a step forward, and has given considerable exposure to their campaign. Let us hope that Parliament’s dismal constitutional failings at the State of the Nation Address two days after the hearing, and the litigation they have spawned, do not steal all the attention.