By Matthew Kruger
First published on the Helen Suzman Foundation website
In South Africa, the events that generate political debate are always aplenty. In the space of three days in late September, we were all especially blessed. First, the US Securities Exchange Commission alleged that Hitachi, a foreign company, had a corrupt relationship with Chancellor House. Chancellor House is an ANC-controlled company that funds the political activities of the ANC. This relationship, the SEC alleges, secured for Hitachi contracts relating to the Medupi and Kusile power plants.
Two days later, the Constitutional Court handed down judgment dismissing an application by My Vote Counts (MVC), which had sought an order declaring that Parliament had failed in its duty to enact legislation giving effect to the right of access to information. Later that day, citizens, civil society organisations and various political bodies came together to march in opposition to corruption. This is a lot to digest. The SEC allegations, the MVC decision and the protest marches, however, all share a common feature: corruption.
Most people agree that corruption is a bad thing. Most also agree that there is no single and simple means by which to prevent and combat corruption. Any successful strategy will have to embrace a plurality of persons, parties and programmes. We must be open to all possibilities. None of this is very controversial – what is likely to be controversial, though, is how we should go about confronting corruption. The means to our desired ends, especially when these means may have unintended consequences, will always generate debate. Sometimes the debate will even be intractable.
This brief considers one particular means by which corruption can be prevented and combated: How, if at all, should we regulate the disclosure of the source of political party funding? Disclosure is a means that has and will continue to generate heated debate. To explain why, I begin with a brief summary of the details of and problems with the MVC decision.
The MVC decision: details and problems
According to MVC, Parliament failed to fulfil its duty to enact legislation giving effect to the right of access to information. MVC cited the absence of a legal requirement for political parties to disclose publically information pertaining to the source of their funding. In a 7-4 split, the majority dismissed the application. The majority held that MVC had proceeded in the wrong way and in the wrong court. Since the application was dismissed on procedural grounds, the majority refused to consider the merits of the application.
There are a number of difficulties with the majority decision, both as a matter of interpretation and as a matter of consequence. I will avoid the interpretative issue, since it cannot be done justice in a brief of this length. An apparent consequence of the decision, though, is that a constitutional mechanism by which citizens can hold Parliament accountable has effectively been removed. Parliament can, so it seems, defend an allegation that it has not fulfilled its duty to pass legislation giving effect to various rights by simply gesturing at legislation that purports to address an aspect of these rights. This cannot have been the intention of the drafters of the Constitution. It is not consistent with the values that underlie an open and democratic society.
Despite this unfortunate result, hope remains. This is because the majority did not address the main question before it. So, we must ask: Are political parties required to disclose regularly and publically the sources of their funding?
Confronting a difficult question
There is no easy answer to this question. To be more precise, there is no easy answer to the various issues packed into this question. The difficulty is not with whether the effective exercise of political rights depends on citizens having access to information. Conceptually speaking, this is clear. It is almost as clear that such information includes details relating to the source of political party funding. The difficulty is also not with whether secrecy fosters the conditions in which corruption can occur. Empirically, this is trite. Rather, the difficulty is whether, despite the importance of such information to the exercise of political rights, we should limit access to this information.
Why is this question difficult? Well, with all matters constitutional there are other values and rights in play. We value our privacy, welfare and security. These values might be undermined by a legal duty requiring public disclosure. We have rights to privacy and association. We have freedoms of thought, belief and opinion. And we have freedoms of trade, occupation and profession. These rights and freedoms might also be adversely affected by a regime requiring disclosure of this type.
Since other values and rights may be implicated in this way, we must reformulate the question that was posed at the end of the previous section. We must now ask: How do we balance the conflicting interests that these values and rights reflect and embody?
A suggested answer to a difficult question
Let me sketch my own preliminary answer to this question.
Political action is by nature public, involving engagement between citizens. As citizens, we exist only in the public realm. As such, secrecy is by its nature antithetical to political action. This fact about politics has important implications the question at hand.
First, the right to privacy is not implicated by disclosure. At most, it is minimally implicated. This is because the funding of a political party is by nature a public act. If it is to be truly political in the way that it purports to be, the act of funding must be disclosed.
Second, the freedom to associate is not hindered by disclosure. Rather, it is only realised through disclosure. Again, this is because political association is by nature public. It requires disclosure.
Third, the freedoms of thought, belief and opinion are not implicated by disclosure. We can think, believe and opine about what we want. For our thoughts, beliefs and opinions to be political, however, they must be disclosed. The political aspects of these rights require disclosure.
We are then left with concerns regarding welfare, security and economic prosperity. Might these private and social concerns outweigh the political importance of disclosure? Might these warrant a diminished form of politics that is more private than public in nature? The answers in part turn on whether disclosure could lead to physical and economic persecution. This is possible. We must not ignore the risk. But, it must not be overestimated. We must not forget that we have political and legal structures that aim to prevent and laws that aim to remedy such abuses.
So, what is my answer to the difficult question? Given the importance of our political rights, I think disclosure is constitutionally required. Others will disagree. To resolve this disagreement, or at least for us to come closer together, we must debate honestly and openly the question of how we should balance the conflicting interests that disclosure of political party funding implicates. In other words, we must debate the means to what is clearly a desirable end.
The MVC decision is a set-back in the fight against corruption. This cannot be denied. There is hope, however, that the decision sparks a debate about the importance of political rights, relative to other values and rights. There is hope that this debate includes consideration of how we should regulate, if at all, the disclosure of information relating to political party funding.
There is hope, in fact, that Parliament will act on this important question before the Constitutional Court inevitably orders it to do so. Until we have this debate and until Parliament acts, allegations of corruption relating to political party funding and protest marches about political and private corruption will only increase in frequency and intensity.
• Matthew Kruger is z legal researcher at the Helen Suzman Foundation.