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South Africa court: political parties must disclose sources of private funding

[JURIST] The Western Cape High Court in South Africa on Wednesday ruled [order, PDF] that parliament must amend the Promotion of Access to Information Act (PAIA) [text, PDF] to compel political parties in South Africa to disclose the sources of their private funding.

The plaintiff in this case was a nonprofit organization named My Vote Counts (MVC) [advocacy website] that sought a declaration that "information about the private funding of political parties is reasonably required for the effective exercise of the right to vote" per § 19(3)(a) of South Africa Constitution [text, PDF] and that the PAIA is "inconsistent" with the constitution because it fails to achieve the targeted goal of "continuous and systematic recordal and disclosure of private funding information of political parties."

The court analyzed and discussed the issue in three parts: 1) right to information and right to vote, 2) the need for information on private funding as it relates to the right to vote, and the 3) the constitutional implications and international agreements in the context of the country's duty to prevent corruption. The court ruled in favor of the plaintiff on all of these points and rejected the defendant's contention that "private funding disclosure would deprive donors of the choice as to which parties to associate with" due to fear of reprisal by the ruling party.

The case was initially filed with the Constitutional Court of South Africa, which dismissed the case stating that the plaintiff should have approached the High Court. While that Court's majority did not consider the merits of the case, its minority opinion discussed the merits at length, which was subsequently quoted by the high court with approval in ruling for the plaintiff:

§ 19(1) of the Constitution envisages that every citizen is free to make political choices. ... It also includes, of course, the freedom to choose one's leaders. But that choice, like all others, is valuable only if one knows what one is choosing. ... Does this include knowing the private sources of political parties' funding? It surely does. Private contributions to a political party are not made thoughtlessly, or without motive. They are made in the anticipation that the party will advance a particular social interest, policy or viewpoint. And political parties, in turn, depend on contributors for the very resources that allow them to conduct their democratic activities. Those resources keep flowing to the extent that they meet their contributors' and funders' expectations. There can be little doubt, then, that the identity of those contributors, and what they contribute, provides important information about the parties' likely behavior.

In ruling the PAIA unconstitutional to the extent it restrains the people from making an informed vote, Judge Yasmin Shenaz Meer gave the parliament 18 months to rectify "inconsistencies" in PAIA. MVC national coordinator Janine Ogle welcomed the ruling and acknowledged [News24 report] that the parliament has already begun the process to rectify the defects in PAIA.

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