amaBhungane and the Constitutional Court: To disclose, or not to disclose, that is the CR17 question

Dario Milo is a partner and Lavanya Pillay a senior associate at Webber Wentzel. They acted for amaBhungane in the litigation.

Last week was a particularly significant one for the Constitutional Court and its determination on matters concerning our former and current presidents. On Tuesday, the court sentenced former president Jacob Zuma to prison for contempt of court (a decision he is now seeking to rescind); two days later, it set aside findings made by the Public Protector, Busisiwe Mkhwebane, that President Cyril Ramaphosa had acted unlawfully in various respects relating to donations made to his CR17 election campaign.

The court found that the Public Protector made several serious errors in fact and law in making the findings that the president had acted unlawfully, and acted outside the scope of her powers by investigating the funding of the CR17 campaign. In his majority judgment, Justice Chris Jafta stated that “the Public Protector, like all of us, is fallible and mistakes are to be expected in the course of the exercise of her powers. But what is troubling in this matter is the series of weighty errors, some of which defy any characterisation of an innocent mistake.”

A core issue in the dispute between the president and the Public Protector was whether the president was required by law to disclose donations made to his CR17 campaign (the Public Protector found that the president had acted unlawfully by failing to do so). The key legal instrument in dispute here was the Executive Members’ Ethics Code, which was passed pursuant to the Executive Members’ Ethics Act of 1998. The code provides a list of financial interests that members of the executive are required to disclose, including “benefits” and “sponsorships”.

The president argued that the code did not require the disclosure of donations made to the CR17 campaign, as these donations were not made to him personally, but rather to a political campaign. The Public Protector (joined by the Economic Freedom Fighters) argued that it did.

In Thursday’s judgment, the Constitutional Court held that the president did not have a duty under the code to disclose the donations made to the CR17 campaign as the president “did not personally benefit from the donations made to the CR17 campaign”. According to the court, the duty to disclose is only activated once a benefit is given to a member of Cabinet in his or her personal capacity.

It was in relation to this issue of the reach of the code that the amaBhungane Centre for Investigative Journalism had sought to enter the fray. amaBhungane did not take a view on whether the president or the Public Protector were correct about their respective interpretations of the code.

But it argued that to the extent that the court determined that the president is right — and, properly interpreted, the code does not currently require members of the executive to disclose donations made in support of their campaigns for positions within their respective political parties — the code was unconstitutional. This is because the public should have the right to know who has donated to the campaigns of members of the executive who contest for leadership of any political party – particularly where those campaigns eventually result in the politician taking high public office.

amaBhungane argued that the connection between private donations and the risk of corruption is clear. When private money benefits public servants, the risk of “buying power” and conflicts of interest necessarily arise. When these private contributions are not disclosed to the public, the risk of corruption grows considerably.

Transparency and access to information are vital in such circumstances. Voters ought to have access to the identity of political campaign donors in order to consider who is funding the messages they receive from politicians. In the absence of proper and full disclosure, citizens are unable to discern any potential hidden agendas and are unable to exercise their right to vote in a meaningful way.

As amaBhungane’s Sam Sole testified in his affidavit before the Constitutional Court, “politicians who use public office in the furtherance of the agendas of benefactors, at the expense of the best interests of all, are far more likely to be found out where there is transparency. The disclosure of information on the private funding of political players will thus keep voters better equipped to make out the real interests these politicians are likely to serve — and to deter politicians from serving those interests at the expense of the public.”

When the case was decided by Judge President Dunstan Mlambo and Judges Elias Matojane and Raylene Keightley in the Pretoria High Court in March 2020, it found that all of these issues raised by amaBhungane were critical to South Africa’s democracy but that the constitutional challenge against the code was not properly before it.

In its judgment on Thursday, however, the Constitutional Court — in a majority judgment handed down by Justice Jafta — overturned all of the high court’s reasons for not determining amaBhungane’s challenge to the code — and sent its challenge back to the high court for consideration.

The high court held that a challenge to the code without a challenge to the Executive Members’ Ethics Act is not permissible under the legal principle of subsidiarity. The Constitutional Court dismissed this finding on the basis that the subsidiarity principle had no application in this case. amaBhungane’s challenge has always been that if the code does not require disclosure of donations made to party campaigns, then it is invalid as it failed to meet the obligations imposed by both the Constitution and the Ethics Act.

The high court also held that amaBhungane’s constitutional challenge was precluded by the fact that the mechanisms under the Promotion of Access to Information Act (Paia) were available in order to obtain information on donations to political party campaigns.

But as Judge Jafta crisply puts it — this misses the point. Paia is legislation enacted for the purposes of fulfilling the right of access to information. The Executive Members’ Ethics Act and the code, however, were enacted to ensure that Cabinet ministers comply with their ethical obligations as required under the Constitution. Therefore, Paia does not stand in the way of amaBhungane bringing a constitutional challenge against the code, to the extent that it fails to properly give effect to the obligations imposed by the Constitution and the Ethics Act.

The high court also held that the relief sought by amaBhungane in its constitutional challenge would result in the courts prescribing the ambit of the executive’s duty of disclosure which would undermine the principle of separation of powers. This finding was also dismissed by the Constitutional Court: the courts could still determine the code’s validity and declare it invalid, without infringing on the separation of powers.

amaBhungane did not seek to prescribe precisely how the code should be amended to require disclosure of donations made to political campaigns. Instead, it merely sought a declaration of invalidity and then asked for a period of suspension for one year to allow Parliament and the National Assembly to correct the defect.

As the Constitutional Court stated, our courts are obliged to declare any law or conduct that is inconsistent with the Constitution to be invalid and thus the high court ought to have considered the merits of amaBhungane’s claim. It now has to do so — which could mean, if amaBhungane’s argument is correct, that the code should be declared unconstitutional and Parliament should fill the gaps.

Donations to political campaigns are not required to be disclosed under the new Political Funding Act, which came into force in April this year — that act only requires the disclosure of donations to political parties, but not to an individual member’s campaign for leadership positions within those parties.

It is, however, in our view essential that the public is aware of who donated to political campaigns and in what amounts. Secrecy carries with it the potential for those in power to favour those who fund their election campaigns in the dark. In the fight against corruption, transparency and openness are essential, particularly where private money may be used to improperly influence those elected to public office.

We are not suggesting that any misconduct has taken place as a result of any donations to political campaigns within any particular political party, but the law should provide for maximum disclosure and transparency, as it now does in relation to political parties. This logic should be carried through to internal political leadership campaigns.

The high court is now seized with determining whether the code falls short of the standards of the Constitution — and amaBhungane lives to fight another day. DM