By Joel Bregman
The unanimous judgment handed down on September 20 by the Constitutional Court, declaring the Executive Ethics Code unconstitutional, has the potential to deepen transparency and accountability in our politics.
Confirming a judgment made by the full court of the Gauteng Division in December last year, the apex court found the code unconstitutional for failing to require disclosure of “donations made to campaigns for positions within political parties”. The case was brought by investigative journalism organisation, amaBhungane.
The court has given the president 12 months to remedy the defects in the code. When the updated code is in effect, it will require the president and deputy president, ministers and deputy ministers, premiers and MECs to disclose the types of donations. It is likely that the additional disclosures will be made in the Annual Register of Members’ Interests.
The new code will not be retrospective, meaning that only once it is signed into law, will the changes be enforced. It is unclear exactly what level of disclosure members bound by the new code will be obligated to make.
For example, the Political Party Funding Act has a threshold amount over which donations need to be disclosed. However, the wording of the code and the related Executive Members’ Ethics Act suggests that all donations related to internal campaigning will need to be disclosed.
Until now, members of the executive bound by the code had to make annual disclosures covering a wide range of financial interests. However, it was not a requirement for them to disclose donations they received, or that others received on their behalf, for internal party battles. It is important to note that the code is specifically for members of the executive and does not apply to ordinary MPs or MPLs.
The rationale to require these types of donations to be declared is simple: campaigning for intra-party positions is an arena where private interests and capital can buy power and influence and create situations where politicians are beholden to the private interests.
Consider the following scenario: An individual contests for a position within their party, receives donations and financial support to win, takes a position within a party and then within the government in an executive capacity. This person is now in an extremely powerful position, with the ability to influence policy and decision-making at the highest levels of the national and provincial government.
And so, an ethics code is required to, among other things, ensure that the person carries out their duties in the interests of the public and does not act in a way that might unduly benefit those whose contributions assisted them in getting to that position of power.
Central to the objectives of the code is to ensure that members of the executive do not place themselves in positions that might impede their ability to discharge their duties without any undue influence. The court’s judgment confirms that accepting undisclosed financial contributions can place members in such positions and therefore disclosure is required.
When we know who has funded the members’ internal campaign contests, this develops another layer of accountability and a vehicle to mitigate against corruption.
The judgment, building on the My Vote Counts 2018 judgment where the court found that the Promotion of Access to Information Act was unconstitutional as it did not allow for the disclosure of private political funding information, is a recognition by our highest court, of the nexus between money and politics and the need for transparency.
The information also provides the electorate and the public with essential information to make informed political choices. As the Political Party Funding Act and the amended Promotion of Access to Information Act regulate and provide access to information about private political funding to parties, the addition of intra-party campaigning to our oversight framework is of great importance.
However, as Professor Pierre de Vos cautions, unless there is proper oversight and sufficient resources to ensure compliance with the new code, its impact will be limited. He also argues that the development – while welcomed – is an “inadequate step to deal with the corrosive effects of money on our politics”.
What is needed, he argues, are other laws or amendments to the Political Party Funding Act to regulate disclosure for all candidates running for internal party positions, regardless of whether they are members of legislatures or the executive.
At present, and even when the new code is in effect, one may argue that the real power to ensure we have greater transparency for internal party campaigning lies with political parties.
They have the power, through the development and adoption of intraparty rules, to insist that all their members who receive financial support for these contests make these types of disclosures. This is what the ANC has chosen to do for its upcoming December elective conference.
While one might view the decision as politically expedient as the governing party seeks to save itself and rebuild its integrity, it is a step in the right direction and one that all parties should follow. Despite the reservations, the new code, if properly implemented and enforced, has the potential to provide another crucial layer of accountability and openness to our politics.
It is a critical element of the solution needed to mitigate the devastating impact that unchecked private interests and capital mixed with unscrupulous politics can have, and has had, upon our country.
* Bergman is a Senior researcher at My Vote Counts