Abstract
LL.M. (Human Rights Law)
Current events have highlighted the need for better transparency in South Africa around the influence of money in politics, particularly findings of the Public Protector in her “State of Capture” report suggests a strong need for disclosure about private funding in the political arena. The need for disclosure in this context was also recently highlighted in Constitutional Court matter of My Vote Counts NPC v Speaker of the National Assembly and Others (CCT121/14) [2015] ZACC 31 (30 September 2015). As the majority of the court in that matter dismissed the application on other grounds, it never engaged the question of whether there is a constitutional basis for requiring the disclosure of information about private funding of political parties in South Africa. This dissertation therefore examines firstly whether this information is in fact, currently, accessible in South Africa, and, secondly, whether the Constitution requires that it should be accessible. I find that the information is in fact not currently accessible. The dissertation then shows that the principle of subsidiarity requires that reliance be placed in the circumstances on the right to vote, rather than on the right of access to information directly. Out of international law obligations and content given to the right to vote by the legislature and the Constitutional Court three strong arguments for the recognition of a right of access to information about political party funding as part of the right to vote are highlighted. The three arguments include the international law obligation to combat corruption through transparency about political party funding, the international law obligation to ensure the exercise of the right to vote is meaningful and the need to counter-balance inequality of access to politicians. The dissertation establishes that a legislative provision that would ensure access to such political party funding information would infringe on donors’ and political parties’ rights to privacy. However, such an infringement would be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The dissertation therefore recommends that Parliament ought to be required, in line with its duties in terms of section 7(2) of the Constitution, to make the necessary amendments to the electoral legislation to give effect to the right of access to information about political party funding as part of the right to vote.