On Thursday, the chief justice Mogoeng Mogoeng handed down judgment on political party funding and the constitutionality of sections of the Promotion of Access to Information Act (PAIA). The Daily Vox team spoke to Phephelaphi Dube, director of the Centre for Constitutional Rights (CFCR) about what exactly this ruling means.
The Daily Vox: The finding of the Constitutional Court was that the Promotion of Access to Information Act was unconstitutional insofar as it didn’t provide a mechanism for the public to scrutinise political party funding. Is it fair to characterise the ruling as a finding that merely opens that scrutiny up via a PAIA request, or doe it place a positive burden on parties to reveal funders? In other words, can South Africans expect parties to tell them who their funders are, or will we have to ask?
Phephelaphi Dube: It does two things. Firstly as you rightly pointed out it just makes it possible for requests for information using PAIA but of course that is subject to parliament fixing PAIA to make that provision. And secondly, it’s really going to work in tandem with parliament is in the advanced stages in terms of adopting a new piece of legislation to govern party funding in a sense that it is going to ensure transparency with political party funding. Ultimately, it also makes it quite clear that it is the state itself that is supposed to ensure that the public has information available. So the duty really lies with the state.
It depends on how the legislation is going to be enacted but on the other hand we need to bear in mind that certain paragraphs in the judgement make it clear that it has to be reasonably accessible. It depends on how the political parties interpret “reasonably accessible”. Some can interpret reasonably accessible to mean immediate or that they can make the information available on a need to know basis or on specific requests. The judgement throws the ball back into the political parties hands to make the information reasonably accessible.
TDV: Why did the Con Court not prescribe which way the information will actually be made available to the public?
PD: The challenge was to the Promotion of Information Act and so the Con Court said it’s hands were tied because of the separation of powers so it couldn’t tell Parliament how exactly Parliament should go about ensuring that political rights are properly exercised so it basically said it’s hands are tied. It’s up to the legislature to give content and meaning to what the Con Court has said.
TDV: What steps must parliament now take to change the law to fit into this ruling? Will an amendment of the act suffice, or does it have to create new transparency rules around party funding?
PD: There are two things that can happen. The first thing is in line with the judgement parliament has to amend PAIA to make it clear that political parties and private individuals who are running the office are not exempted from the provisions of PAIA and the requests for information around funding. That’s the first step and obviously the second step is that parliament is at an advanced stage of legislating a bill to regulate private funding of political parties. So it’s important for parliament to go back to that bill and amend it to ensure that the judgement is reflected in the new piece of legislation.
TDV: Will this ruling be in effect in time for the 2019 general elections?
PD: The Con Court [left it to] parliament to enact the judgement and bearing in mind that we’re about 17 months from next year’s elections, arguably if parliament works according to the time frames established by the Con Court it might be in time for next year’s elections.
Editor’s note: Interview has been edited for brevity.
Featured image via Wikimedia.