• The Electoral Matters Amendment Bill contains a clause that would give the president the power to determine the threshold for disclosures, and the cap for donations to political parties and independent candidates.    
  • A parliamentary legal advisor said this clause could be unconstitutional.  
  • Home Affairs Minister Aaron Motsoaledi defended this, claiming the proposed changes “are more or less the same thing” as the current legislation. 

Parliament’s legal advisors found the provision in the Electoral Matters Amendment Bill – which would give the president the power to determine the threshold at which political parties have to declare their donations and the limits of the amounts they are allowed to accept – could be unconstitutional.

Home Affairs Minister Aaron Motsoaledi, however, defended this provision, one which could lead to less transparency in private political funding, and which has drawn much criticism from civil society.

The main purpose of the Electoral Matters Amendment Bill, which was introduced in December, is to amend the Political Party Funding Act (PPFA) and other legislation to bring it in line with the Electoral Amendment Act, which allows independent candidates to contest provincial and national elections.

However, the bill also includes a controversial clause that could make it easier for political parties and independent candidates to receive more money from donors, with less transparency.

This provision takes a competency away from Parliament and its constitutionally required transparency and public participation and moves to the more opaque functions of the president.

Several submissions aired at a joint meeting of the National Assembly’s Portfolio Committee on Home Affairs and the National Council of Provinces’ Select Committee on Security and Justice on Tuesday, criticised this provision.

READ | Civil society critical of president getting powers to determine party funding thresholds

Organisations like the Inclusive Society Institute, My Vote Counts, the Council for the Advancement of the Constitution (CASAC) and People’s Legal Centre, said it would be a conflict of interest for the president to determine the cap and threshold. CASAC’s executive secretary, Lawson Naidoo, said the amendment would undermine Parliament’s authority and diminish adequate public consultation.

Trade union federation and ANC-alliance partner Cosatu accepts the need for flexibility on caps on donations, but provisions for thresholds below which donations need not be disclosed opened a massive and obvious gap for tenderpreneurs and other persons with criminal intent seeking to buy influence.

The PPFA currently allows the president to make regulations concerning the limits on donations parties may receive and the threshold of which donations they must declare to the Electoral Commission of South Africa (IEC), “acting on a resolution of the National Assembly”.

In other words, the president would have to be empowered by the National Assembly to change the limit or threshold.

The bill removes this provision.

Instead, it would allow the president to make regulations after consultation with the portfolio committee responsible for the PPFA – the Portfolio Committee on Home Affairs.

This would sidestep public participation, and the president would not have to heed the committee’s input.

The new bill would require the president to consider the following in determining his decree:

  • The amount of money previously appropriated by acts of Parliament for the Political Representatives Fund within the previous five financial years.
  • The effects of inflation on the value of money over time.
  • The costs associated with participating as a political party, independent representative or independent candidate in elections and the democratic process in South Africa.

Schedule 2 of the PPFA contains the provisions that donations of more than R100 000 must be declared (called the threshold), and parties may only accept R15 million from one donor per financial year (called the cap).

READ | Parliament to rush through bill giving president power to determine donation limits for parties, independents

Parliamentary legal advisor Telana Halley-Starkey cautioned the committees on Friday that, in this instance, it could be argued that bill would assign the president plenary power.

“The reasoning is that the formulation of regulations… affect the rights of political parties and now independent candidates, and that such decisions should be left to a multi-party forum, as opposed to the President of a ruling party – a resolution process would ensure this,” she said.

“Furthermore, the current draft provides that the drafting of regulations will take place by the President ‘after consultation’ – which is problematic, as there may be no agreement needed between the parties involved prior to the making of regulations. The Committee is therefore cautioned that the President could possibly consult with the Portfolio Committee and not take the advice or recommendations from the Portfolio Committee.”

She added that that does not recommend that a member of the executive does something in consultation with Parliament, “as you could reach a stalemate and there is no ‘ultimate’ power that can make a final decision one way or the other”.

She said:

Funding of political parties is fundamental to the promotion of a multi-party democracy. It could be argued that to place this power in the hands of the President, who carries many hats, may affect the principles of democracy enshrined by the Constitution, hence rendering that provision unconstitutional.

But Motsoaledi bizarrely claims the proposed changes “are more or less the same thing” as the current legislation.

He said the determination of the threshold and cap were placed in the regulations rather than the PPFA, so it doesn’t need legislative amendment to change it.

“And it said the president will exercise it with a resolution from Parliament, which means he was not given unfettered powers as has been claimed. He had to get a resolution from Parliament. Parliament must be convinced that the figures must be changed,” said Motsoaledi.

The concerns raised about the president being given “unfettered powers” relates to the proposed amendment, not the current act.

Motsoaledi continued:

Now, in the new proposal, we are [saying] more or less the same thing, except we are saying the Act must determine how the president does it.

He referred to the Portfolio Committee on Home Affairs’ deliberations for the Electoral Amendment Act on the percentage of signatures independent candidates had to get to register to run for elections, which were hotly debated and went through several changes before the bill was passed. The Constitutional Court eventually overturned that provision.

“So, there must be some kind of mechanism that we avoid that, because whenever you come to numbers, there will be as many proposals as there are numbers of people, or numbers of parties,” said Motsoaledi.

“So, you are finding a mechanism, and in this mechanism we are saying: in the past five years there has never been an inclination or indication that this power given to the president, with a resolution from Parliament, is being abused or showing a conflict of interest. It never did, we are hearing for the first time that.”

The concern about the provision being abused and a conflict of interest relates to the proposed amendment, so the fact that it hasn’t been raised over the past five years is moot.

“Even now, the president doesn’t have a blank cheque. We said he must do so after consultation with political parties,” Motsoaledi claimed.

“We chose after consultation with political parties. Both the president and political parties are working under a prescribed environment. In other words, even the parties are not given a blank cheque to determine.

“Now, we say both parliament and the president must be guided within confined rules.”

Motsoaledi said the National Assembly would be “very involved”.

READ | President should not say how much parties can receive in donations, says My Vote Counts

Motsoaledi also appeared outraged by the suggestion by the Inclusive Society Institute that an independent body determine the threshold and cap.

“I’ll argue very strongly, chair, unless somebody indicates to me otherwise, this story that political parties cannot determine their fate because they got a conflict, they are the ones who are running their everyday activities, how does somebody coming from outside just come and say: ‘This is good for you. This is not good for you?’ Who is this somebody, which political parties did not have power to appoint at all.”

When Motsoaledi first alerted the Portfolio Committee on Home Affairs in May that a bill dealing with consequential amendments for the Electoral Amendment Act was on the cards, he hinted that he would use the opportunity to make it easier for political parties to receive more money with less transparency.

He then proposed increasing the R100 000 cap on donations that did not have to be declared, exempting donors from declaring, and, tellingly, excluding parties’ earnings from investments, shareholdings and commercial activities from being declared.

The bill must be approved before the elections – hence, the portfolio committee from the National Assembly and the select committee from the National Council Provinces are processing the bill together. They will continue their work – which they intend to complete by the end of the month – this coming week.


Originally published on News24.