22 January 2024
Mr E Mathonsi
Portfolio Committee on Home Affairs
Parliament of South Africa
By email: Electoralmattersbill@parliament.gov.za
Dear Mr Mathonsi,
PUBLIC SUBMISSIONS: ELECTORAL MATTERS AMENDMENT BILL [B 42-2023]
The Inclusive Society Institute (ISI) is a Non-Profit Organisation that has as one of its objectives the promotion of democracy. The ISI therefore feels obliged to scrutinise legislation that impacts the proper functioning of the South African democratic dispensation. It does so by balancing the necessities of the political parties against the public interest.
The Institute’s departure point is that political parties need to be properly resourced and equipped in order for them to carry out their constitutional mandate. Ill-equipped and under-resourced political office-bearers will merely result in the semblance of democracy, whilst in effect allowing for a well-resourced Executive to act with impunity, and is inherently biased in favour of parties in government. Thus the ISI promotes meaningful public funding of political parties.
With regard to the public funding of parties, our studies have shown that where jurisdictions have high disclosure regimes, public funding is far more generous than in those that do not have high disclosures regimes. Thus a consequence of high disclosure requirements is the need for meaningful public funding lest the effective functioning of political parties be compromised. Recent research by the Inclusive Society Institute suggests that the current funding levels in South Africa is not entirely adequate.
That said, it is never a good idea for one to determine one’s own remuneration. This is the effect of the proposed amendment of Section 24 of the Political Party Funding Act, 2018 (PPFA). The President – the leader of a political party – and the Parliamentary Portfolio Committee, which is comprised of representatives of political parties, are to decide adjustments to the donation disclosure thresholds and the maximum annual limits that any one donor may make to a party. In other words, parties determine what the thresholds and limitations are to be. This in the knowledge that the likelihood of a higher number of donations increases the higher the disclosure threshold, since donors will not have to disclose. Similarly, should the maximum level of annual contributions by a single donor be set at too high a level, the original objectives of the PPFA will be undermined.
And whilst the President needs to take a number of factors – as stipulated in Section 26 of the Electoral Matters Amendment Bill - into account in determining the adjustments, there is a very real danger of falling prey to subjective decisions. It unquestionably constitutes a conflict of interest. Should the conflict of interest not be eliminated from the Bill, it will open the prospects for a legal challenge.
The Institute therefore proposes that the Independent Commission for the Remuneration of Public Office-bearers mandate be extended to include the provisions contemplated by Section 26 of the Electoral Matters Amendment Bill.
Should the aforementioned proposal not find favour with the Portfolio Committee, then the Institute is compelled to insist that the following minimum amendments be made:
That Section 26 of the Electoral Amendment Act be amended to include the Minister of Finance as a party to be consulted by the President when making the regulations for matters contemplated in section 8(2) and (5) of the Political Party Funding Act of 2018. This is necessary since, as previously alluded to, disclosure requirements impacts the level of public funding needed, and the Minister of Finance is best placed to weigh up the required funding of political parties against the fiscal affordability for the state.
That an additional factor that the President should take into account be objectively measurable norms and standards with regard to the public funding of political parties in other peer democratic jurisdictions. This will ensure that South Africa does not become an outlier, as it will introduce a measure of rationality into the decision-making process.
The Inclusive Society Institute understands the need for the Electoral Matters Amendment Bill and, in the main, supports the provisions thereof. In particular, it also understands the need for the Section 26 amendment. The Institute, however, is of the view that the current formulation has an in-built conflict of interest. The proposals put forward by the Institute aim to eliminate the conflict of interest, without compromising the substantive need for the amendment.
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VP Khanyile (Chairperson), Z Ndevu (Deputy Chairperson), K Millard, K Khoza, S Muller, D Swanepoel (CEO)