Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Political campaign donations – merely changing the ethics code to force disclosure won’t cut it
Requiring members of the executive (including the President) to disclose any donations made to their campaigns for positions within political parties, is a welcome but inadequate step to deal with the corrosive effects of money on our democracy.
Had someone not leaked information that the CR17 campaign, created to run President Cyril Ramaphosa’s 2017 campaign for the presidency of the ANC, had raised and spent an enormous amount of money (the exact figure remains in dispute) to get him elected as leader of the party, most voters would have been none the wiser. Up until that moment, not much was publicly known about the funding of internal ANC elections, despite persistent allegations of vote buying at ANC provincial and national conferences.
This is not surprising as there is currently no overarching legal obligation on individuals running for office within their party to disclose how much money was raised for their respective campaigns, what the sources of the funding were, and how the money was spent. The ANC had previously also not imposed any duty on candidates in internal leadership elections to disclose any information about their campaign funding and how it was spent.
While the Executive Members Ethics Code required members of the national and various provincial executives to disclose financial benefits given to them in their “personal capacity”, this obligation could easily be skirted by arranging for someone other than the candidate to receive and spend the “donations” (as the CR17 campaign allegedly did), or by using only cash (rumours of bags full of money being dished out at ANC conferences from the boots of cars have long done the rounds) in order to avoid a paper trail that could later be used against the candidate.
The Code also does not apply to anyone who is not a member of the national executive (the president and his or her cabinet) or one of the provincial executives (the premier and his or her MECs), which means that candidates not serving in the executive did not (and still do not) have any legal obligation to disclose even those donations received in their personal capacities.
It must be noted that members of Parliament are also bound by a Code of conduct that requires them to declare certain financial and other registrable interests, including “any other benefit of a material nature”. In 2016, Parliament’s Ethics Committee found then DA leader Mmusi Maimane guilty of breaching the Code for not declaring contributions made to his campaign for the leadership of the DA, but after a successful court challenge the matter was referred back to the Ethics Committee, where it seemed to have died a quiet death. At best it is not clear whether the Code would apply to situations where a candidate for an internal party election creates a structure similar to that of the CR17 campaign to fund their candidacy.
It is in this context that this week’s Constitutional Court judgment in AmaBhungane Centre for Investigative Journalism NPC v President of the Republic of South Africa (penned by Justice Steven Majiedt), can be viewed as an important but limited victory for transparency about the funding of internal party elections. The Court confirmed that the current Executive Ethics Code is inconsistent with the Constitution and invalid to the extent that it does not require members of the executive to disclose donations made to campaigns for positions within political parties. This means that the Code will now have to be amended to require disclosure of funding – even where the funding is managed by a separate campaign, as was allegedly done in the CR17 matter.
Ironically, section 2(1) of the Executive Members Ethics Act places a duty on the President to publish (and thus also to amend) a Code of Ethics “after consultation with Parliament”. The Court suspended its order of invalidity for 12 months, which now gives Ramaphosa one year to make the required changes. But there is also an urgent need for Parliament to amend the act as it currently assumes that the incumbent President will always be beyond reproach, and does not provide for a situation where a complaint about a breach of the Code is against the President.
The AmaBhungane judgment reminds us why transparency about the funding of political campaigns (and of political parties) is so important. Noting that “politics and money make disquieting bedfellows’, the Court advances two distinct but interrelated reasons that transparency is needed.
First, secret donations can be used to corrupt politicians, specifically those who hold executive office. Disclosure is therefore necessary to limit situations in which members of the executive “place themselves in compromising positions that may impair their ability to discharge their duties without any undue influence, which includes the acceptance of undisclosed financial contributions”.
But the problem is not only that secret funding can be used to corrupt individuals in government, it is also, second, that it could corrupt the entire political process, giving wealthy individuals or businesses with deep pockets an outsized influence over the political process and the policies and actions of members of government and of political parties and their leaders not serving in government. Quoting from its My Vote Counts judgment, Justice Majiedt highlights the fact that:
private funders do not just thoughtlessly throw their resources around. They do so for a reason and quite strategically. Some pour in their resources because the policies of a particular party or independent candidate resonate with their world outlook or ideology. Others do so hoping to influence the policy direction of those they support to advance personal or sectional interests. Money is the tool they use to secure special favours or selfishly manipulate those who are required to serve and treat all citizens equally.
Money can buy political influence over elected representatives and members of government of a magnitude that no ordinary voter could ever achieve. It shifts power away from ordinary voters and towards wealthy donors. Even when donations are made without corrupt intent, it can therefore corrupt the democratic process in ways that are not easy to correct. But transparency can limit the damage by requiring disclosure of donations, thus providing voters with important information they need to make the exercise of their right to vote meaningful. Quoting from My Vote Counts, the Court warned that:
political parties and independent candidates should not be left to pick and choose what information would be ‘held’, preserved and disclosed to those who depend on information to determine to whom to entrust their future, that of the nation and posterity. All information necessary to enlighten the electorate about the capabilities and dependability or otherwise of those seeking public office must not only be compulsorily captured and preserved but also made reasonably accessible.
While the judgment only deals with the Executive Members Ethics Code, the Court did suggest that the legislature may have a duty, both in terms of the South African Constitution and South Africa’s international law obligations, to enact further legislation “to regulate the funding of candidates and political parties by legislative means”. What is really needed is a separate piece of legislation or amendments to the current Political Party Funding Act, to regulate the disclosure of funding by candidates running for internal party elections, whether they are members of the legislature or the executive or not.
But changing the Executive Code of Ethics and passing more comprehensive legislation requiring disclosure by candidates running for party office may not have much of an effect, unless the rules are vigorously and effectively enforced, and those who break the rules are appropriately sanctioned. But given the mammoth scope of such a task, and the limited resources that will be available to the body or bodies tasked with enforcing the rules, the outlook is grim. It might help if political parties themselves require funding transparency from their members running for party office (as the ANC decided to do for its December elective conference). But this assumes that candidates will abide by their party’s transparency rules, an assumption that may not hold true.
