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Today you will vote on the Electoral Matters Amendment Bill (EMAB) and its related report. As members of civil society, we appeal to you to reject the Bill in its current form and send it back to the National Assembly for remedy because several of its proposed amendments are plainly unconstitutional.

If passed in its current form, amendments the Bill makes to the Political Party Funding Act (PPFA) will weaken transparency and accountability in our party funding legislation. While there is a legitimate need to amend certain pieces of legislation to bring independent candidates into the political fold, the attempts to fundamentally alter aspects of the PPFA are opportunistic and make it easier for all political parties to solicit private funding with less public scrutiny.

In our submissions to the Portfolio Committee on Home Affairs on this matter, we have already highlighted several amendments that impermissibly expand the President’s powers in determining key limits in the PPFA.  Likewise, below, we detail the constitutional problems associated with the EMAB.

Why the EMAB is unconstitutional?

The EMAB is plainly unconstitutional for inter alia, the reasons set forth below.

1. The EMAB, and specifically the amendments to regulation 7 and 9 of schedule 2 of the PPFA, provides that the President has the sole discretion to determine: (i) the upper limit of donations made by private parties in terms of section 8(2) of the PPFA; and (ii): the minimum amount required for political parties to disclose donations received from private parties, in terms of section 9(1)(a) of the PPFA. Entrusting the President with the discretion to establish these financial thresholds places a substantial amount of political influence within the grasp of one individual, who is a political actor and would typically be the head of a political party who would be disadvantaged or benefited by the changes. This is unconstitutional because the President, as the leader of a political party, inherently possesses a vested interest in the outcomes of such decisions. The ability to influence the financial dynamics of political competition, including the flow of private donations, can significantly impact the political landscape to favour the President’s party. This arrangement essentially allows the President to set rules that could disproportionately benefit their political interests, creating an unequal playing field for other political entities. The apprehension of personal and institutional bias is palpable and plainly gives rise to a subversion of the rule of law. It is also irrational to vest these powers in the President.
2. Moreover, there are not even meaningful guidelines provided for the exercise of this critical power by the President. It is a rule of law requirement, as underscored by several Constitutional Court judgments, that the law be free of vagueness and speak with clarity.  This is plainly not achieved by the EMAB.
3. Moreover, the EMAB is further unconstitutional given that it creates a lacuna in the law. In this regard, if the amendments to regulation 7 and 9 are adopted without the simultaneous proclamation of the upper limit and disclosure threshold by the President, there would be no upper limit (meaning that any amount may be donated) and there would be no disclosure requirement as a threshold had not been determined.  During this period, the core aim of the PPFA will be significantly undermined.  Without these critical boundaries in place, private entities are able to contribute unlimited amounts to political parties, and none of these transactions is required to be disclosed.  This lacuna essentially nullifies the intent of the legislation to bring transparency and accountability to political financing and indeed facilitates a climate of financial opacity.
4. The NCOP has stated that it does not intend to facilitate any further public participation in relation to what is one of the most important pieces of electoral legislation in South African history. We are aware of the position of Parliamentary Legal Services on this matter. We maintain that the question of whether the changes to the EMAB from the Portfolio Committee on Home Affairs process to the Select Committee on Security and Justice are material or not has not been fully tested.

The role of this Committee as a bulwark against political overreach cannot be overstated. The Portfolio Committee on Home Affairs made a grave error in adopting the EMAB and we appeal to you to reject the Bill or to make the necessary amendments and return it to the National Assembly.

We trust that this will support your deliberations.

Submitted by:

• Ahmed Kathrada Foundation
• Alliance of NPO Networks
• AmaBhungane Centre for Investigative Journalism
• Ambassadors 4 Change
• Centre for Civic and Democracy Education
• Centre for Good Governance and Social Justice
• Council for the Advancement of the South African Constitution
• Defend Our Democracy Movement
• Direct Democracy South Africa
• Media Monitoring Africa
• My Vote Counts
• Organisation Undoing Tax Abuse
• Progressive Tamil Movement
• Rising Stars Youth Development Network
• Sekunjalo Health and Poverty Alleviation
• South African Conversations
• The Southern African Institute for Responsive and Accountable Governance
• Westside Park Community Crisis Committee
• Youth Empowering Initiative Democracy

Issued by My Vote Counts