South Africa: Party Funding Act in Possible Face-Off With Access to Information Legislation

analysis

As the battle about the future form of party political funding heats up, the parliamentary portfolio committee on justice and constitutional development has tabled amendments to the Promotion of Access to Information Amendment Bill, 2019 in what could be a conflictual process.

According to parliament's announcements, tablings and committee reports (ATC), the bill aims to amend the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000) ("PAIA") to revise and align its provisions with section 32 of the Constitution of the Republic of South Africa, 1996, following the Constitutional Court's judgment in My Vote Counts NPC v Minister of Justice and Correctional Services and Another.

The bill seeks to regulate the recordal, preservation and availability of information in respect of private funding to political parties and independent candidates.

The Constitutional Court further ordered parliament to amend PAIA and take any other measure it deems appropriate.

On 21 June 2018, the Constitutional Court, in My Vote Counts NPC v Minister of Justice and Correctional Services and Another, confirmed an order of constitutional invalidity made by the Cape Town High Court, which declared PAIA invalid to the extent of its inconsistency with the Constitution by failing to provide for the recordal, preservation and reasonable disclosure of information on the private funding of political parties and independent candidates.

The Constitutional Court further ordered parliament to amend PAIA and take any other measure it deems appropriate to provide for the recordal, preservation and funding of political parties and independent candidates within a period of 18 months.

The PAIA Amendment Bill will address the Constitutional Court's judgment by inserting a new Chapter ‑ "Chapter 2A Publication and Availability of Certain Records of Political Parties" into PAIA, to regulate the recordal, preservation and availability of information in respect of private funding to political parties and independent candidates and to provide for matters connected therewith.

The Political Party Funding Act has been signed into law by President Cyril Ramaphosa, but it has not taken effect in practice yet because the Independent Electoral Commission (IEC) needs to draft the required regulations after a process of public participation.

During the public hearings that the IEC held in Cape Town, a difference in approach between civil society organisations and major political parties emerged. Whereas civil society organisations wanted all donations to political parties to be made public, the major political parties, notably the ANC and DA (the EFF did not pitch for its submission) wanted only donations in excess of R100,000 to be made public.

The bill obliges the accounting officer of a political party (of an independent candidate) to create and keep records of any money paid or donated by persons or entities to a political party which is more than R100,000; any money lent to the political party; any money paid on behalf of a political party; assets, services or facilities provided to a political party; and any sponsorships provided to a political party.

The records must be made available on social media platforms on a quarterly basis. Furthermore, the bill requires that the records be updated and be made available on social media platforms of the political party concerned two months before the election of the National Assembly or provincial legislature; municipal elections; or a referendum. The records must be kept for a period of at least five years after the records concerned have been created.

The Department of Justice and Constitutional Development supports the proposed legislation.

All of this means that it could make it very difficult for the civil society organisations' inputs in the hearings on regulations to take effect, seeing that they cannot clash with existing legislation.

A massive battle lies ahead to decide who wins the war on the R100,000 threshold, but at this stage the advantage may well lie with the political parties.

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