Changing the code of ethics to force the disc…

If someone hadn’t leaked information that the CR17 campaign, set up to lead President Cyril Ramaphosa’s 2017 campaign for the ANC presidency, had raised and spent a huge amount of money (the figure exact remains in dispute) to get him elected as head of the ANC. gone, most voters couldn’t have known better. Until that time, little was known about the ANC’s internal election financing, despite persistent allegations of vote buying at ANC provincial and national conferences.

This is not surprising as there is currently no overarching legal requirement for people running for office within their party to disclose how much money was raised for their respective campaigns, what were the sources of funding and how the money was spent. The ANC had previously imposed no obligation on candidates in internal elections to disclose information about their campaign funding and how it was spent.

While the Code of Ethics for Members of the Executive required that members of the national executive and of the various provincial executives disclose the financial advantages granted to them in a “personal” capacity, this obligation could easily be circumvented by so that someone other than the candidate receives and spends the “donations”. (as the CR17 campaign would have done), or using only cash (rumors of bags full of cash being handed out at ANC conferences from the trunks of cars have long been the round) 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 cabinet) or one of the provincial executives (the prime minister and his MECs), which means that candidates who do not sit on the executive had (and still do not have) a legal obligation to disclose even donations received in their personal capacity.

Learn more in Daily Maverick: “You should have the right to know who owns the party you are voting for”

It should be noted that parliamentarians are also bound by a code of conduct which obliges them to declare certain financial interests and other registrable interests, including “any other benefit of a material nature”. In 2016, Parliament’s Ethics Committee found AD leader Mmusi Maimane guilty of breaching the code for not declaring contributions to his campaign for AD leadership, but after a successful legal challenge, the case was referred to the ethics committee, where he appeared to have died a quiet death. At best, it is unclear whether the Code would apply to situations where a candidate in an internal party election creates a structure similar to that of the CR17 campaign to fund his candidacy.

It is in this context that the judgment of the Constitutional Court this week in AmaBhungane Center for Investigative Journalism NPC v President of the Republic of South Africa (authored by Justice Steven Majiedt), can be seen as an important but limited victory for the transparency of internal party election financing. The Court upheld that the current Executive Code of Ethics is unconstitutional and invalid insofar as it does not require members of the executive branch to disclose donations made to campaigns for positions within political parties. This means that the Code will now have to be amended to require the disclosure of funding – even where the funding is handled by a separate campaign, as would have been the case in the CR17 case.

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Ironically, Section 2(1) of the Executive Ethics Act requires the President to issue (and therefore also amend) a code of ethics “after consultation with Parliament”. The Court suspended his disability order for 12 months, which now gives Ramaphosa one year to make the required changes. But there is also an urgent need for parliament to change the law as it currently assumes the incumbent president will always be beyond reproach and does not provide for a situation where a complaint of breach of the code is directed against the president.

Why transparency is necessary

The Ama Bhungane judgment reminds us why transparency about political campaign (and political party) financing is so important. Noting that “politics and money make disturbing companions,” the Court posits two separate but interrelated reasons why transparency is necessary.

Learn more in Daily Maverick: “On the money: Transparency in political finance will make it easier to fight corruption”

First, secret donations can be used to corrupt politicians, especially those in executive positions. Disclosure is therefore necessary to limit situations in which members of the executive “place themselves in compromising positions that could impair their ability to perform their duties without undue influence, which includes accepting contributions undisclosed financials.

But the problem is not only that secret funding can be used to corrupt individuals in government, it is also, secondly, that it could corrupt the entire political process, giving wealthy individuals or corporations deep-pocketed inordinate influence over the political process and the policies and actions of members of government and political parties and their non-government leaders. Quoting from his My vote counts judgement, Judge Majiedt underlined the fact that:

“Private funders are not content to waste their resources recklessly. They do it for a reason and quite strategically. Some contribute their resources because the policies of a particular party or independent candidate resonate with their worldview or ideology. Others do so in the hope of influencing the political direction of those they support to advance their personal or sectoral interests. Money is the tool they use to gain special favors or selfishly manipulate those who are bound to serve and treat all citizens equally.

Money can buy political influence over elected officials and members of government on a scale that no ordinary voter could ever attain. It shifts power from ordinary voters to wealthy donors. Even when donations are made without corrupt intent, they can therefore corrupt the democratic process in ways that are not easily corrected. But transparency can limit the damage by requiring the disclosure of donations, thereby providing voters with important information they need to make sense of exercising their right to vote. Quoting from My vote countsthe Court warned that:

“Political parties and independent candidates should not be left free to choose what information should be ‘held’, preserved and disclosed to those who depend on it to determine in whom to entrust their future, that of the nation and that of posterity. All information necessary to enlighten the electorate on the abilities and reliability or not of candidates for public office must not only be compulsorily entered and kept, but also made reasonably accessible.

Separate legislation

Although the judgment deals only with the Code of Ethics for Members of the Executive, the Court suggested that the legislature may have a duty, both under the South African Constitution and under international law obligations South Africa to enact new legislation “to regulate candidate funding”. and political parties through legislation”. What we really need is a separate law or amendments to the current law on political party funding, to regulate the disclosure of funding by candidates running in internal party elections, which whether they are members of the legislature or the executive or not.

Learn more in Daily Maverick: “Have all political parties in South Africa been sincere about their funding?”

But changing the Executive’s Code of Ethics and passing more comprehensive legislation requiring disclosure by party election candidates may not have much effect unless the rules are vigorously enforced and enforced. effectively, and that those who break the rules are sanctioned appropriately. But given the gigantic scale 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 bleak. It might help if political parties themselves demand transparency of funding from their members running for office (as the ANC decided to do for its December elective conference). But that assumes that candidates will abide by their party’s transparency rules, an assumption that may not be true. DM