‘Grave threat to our democracy’ — Parliament passes controversial electoral legislation

12 Mar 2024

The National Assembly passed the Electoral Matters Amendment Bill on Tuesday, opening the door to litigation before the crucial general election.

The National Assembly passed the Electoral Matters Amendment Bill during a hybrid plenary on Tuesday.

The Bill seeks to amend the Political Party Funding Act of 2018 and align various pieces of legislation with the Electoral Amendment Act of 2023, which enables independent candidates to contest in elections for seats in the National Assembly and provincial legislatures. It also makes provision for independent candidates to declare their funding sources.

Read more in Daily Maverick: Elections 2024

Home Affairs Minister Aaron Motsoaledi introduced the Bill in December to regulate the private and public funding of independent candidates and representatives. It will now be sent to the National Council of Provinces for concurrence.

The legislation controversially changes the funding formula of how political parties and independents represented in legislatures receive allocations from state coffers.

Read more in Daily Maverick: Controversial election legislation rushed through Parliament may head to court if proposed 11th-hour talks fail

The Bill proposes a change to the funding formula, which will allocate 90% of funds based on proportional representation and 10% on an equitable basis. The Political Party Funding Act currently allocates 66.6% of funds on proportional representation and 33.3% on an equitable basis, meaning the new law would allocate more funds to the parties with the most seats while small parties’ allocations would decline.

The National Assembly passed the Bill with 240 votes in favour and 90 against. The ANC, EFF and NFP voted in favour, while the DA, IFP, FF Plus, ACDP, UDM, Good party, Cope and PAC voted against it.

Motsoaledi told Parliament on Tuesday, “Most of the amendments are technical in that the words ‘independent’, ‘candidate’ or ‘independent representative’ are inserted in the Act, alongside the words ‘political party’.

“The original formula that was used when the Political Party Funding Act was passed was done when there were no independent candidates; now that we have independents, we strongly believe that the formula cannot be the same.”

The parliamentary spokesperson, Moloto Mothapo, said the Bill also made it an offence — punishable by a fine, imprisonment or both — for donations to be made to gain political influence and favour.

“It makes it an offence to donate to a political party, a member of a political party, an independent candidate, or an independent representative in the expectation that the party, member, representative or candidate concerned will influence the awarding of a tender, licence, approval, consent or permission, or the relaxation of a condition or restriction.”

Mothapo said the Bill prevented the Electoral Commission from accepting donations for the Multi-Party Democracy Fund if there was reason to believe they were the proceeds of crime.

“The commission can also suspend the payment of money to a represented political party, independent political party, or independent representative if it is satisfied on reasonable grounds that the represented political party or independent representative has failed to comply with the Act.”

Challenges likely

The Bill is likely to be challenged in court due to what opposition parties say is an attempt by the ANC to increase its share of funds and concerns about how it regulates the disclosure threshold and annual upper limits. Under current laws, parties must disclose donations above R100,000 and cannot accept more than R15-million a year from a single donor.

The portfolio committee rejected a proposal to allow the President to determine the disclosure threshold and upper limits, with critics saying it would give the President too much power.

Under the Bill, the National Assembly will still decide when the President can amend the regulations on the disclosure threshold and upper limits, but according to the non-profit organisation My Vote Counts, it’s created a legal void.

“The adopted version of the Bill repeals the regulations that regulate how these two vitally important limits are determined,” My Vote Counts said.

“Therefore, there will be a legal void if the [Bill] is signed into law, without a simultaneous proclamation by the President of the disclosure threshold and the upper limit. If this transpires, there will be no disclosure threshold or upper limit in place, completely undermining key objectives of the [Political Party Funding Act].”

The new legislation must be in place before the 29 May elections.

Adrian Roos, a DA MP and Shadow Deputy Minister of Home Affairs, said the Bill was a crude attempt at directing more public and donor funds into the coffers of the ANC to help it try to cling to power.

“The Bill in its current form will change how party funding is allocated and create the possibility of a period of time where there will be no upper limit on party donations, nor threshold for when a party must disclose a donation. These clauses have nothing to do with the inclusion of independent candidates.”

He added that under the new Bill, an extra R50-million will go to the ANC in the next year alone, while smaller parties’ allocations would be more than halved.

The ANC’s alliance partner Cosatu welcomed the Bill, but said that one critical amendment was needed and should be effected by Parliament.

“Whilst accepting the need for flexibility on caps on donations, the provisions for thresholds below which donations need not be disclosed opens a massive and obvious gap for tenderpreneurs and other persons with criminal intent seeking to buy influence, to legally circumvent the progressive transparency and accountability objectives and provisions of the Act. This is reckless and dangerous.”

My Vote Counts argued that passing the Bill was consistent with the ANC’s “ongoing campaign to undermine the Political Party Funding Act (PPFA) by expanding its reporting threshold and annual funding limits.

“A year ago, the ANC instructed its MPs to use parliamentary processes to give life to this campaign. It is clear that these amendments in the Electoral Matters Amendment Bill are plainly unconstitutional and a grave threat to our democracy.” DM

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Challenges likely