Why is President Ramaphosa delaying the implementation of the Party Political Funding Act?

This year most roads at the Zondo commission have led back to a metastatic cancer in our political system: using the awarding of tenders and government contracts as a way of getting kickbacks that will go towards funding the dominant political party (usually but not exclusively the ANC), be it at national, provincial or local level.

In the process of using tenders for party fundraising and patronage, it’s also evident that many of the politicians who seek to feed the party also sought to feed themselves.

Although we will still have to wait many months to read Deputy Chief Justice Zondo’s findings and recommendations on this, we already have an instrument to prevent state capture now and in future: it’s called the Political Party Funding Act (PPFA) 6 of 2018, which was passed by Parliament in 2018 and assented to by the president on 23 January 2019.

Signing the Act was one of Cyril Ramaphosa’s first actions as president. It was intended to send a signal. It did. But that was almost two years ago. Since then – silence.

The Act is vital to our democracy. 

The reasons why are set out in a recent article by former Cabinet minister Valli Moosa:

“The law prescribes which donors are allowed and which are not [foreign governments and SOEs are not]. It places upper limits on the size of donations [R15-million per year]. It requires public disclosure of donations received [above R100,000]. It places an obligation on parties to publish annual audited financials. It allows the Auditor-General to inspect the books of any party.” 

In many ways the PPFA sets standards for transparency that any institution engaging in politics and the public interest (be it an NGO, a newspaper or a political party) should follow. 

But given the pivotal role assigned to political parties by our Constitution – and the history of State Capture and the capture of individual elected political leaders by private interests such as the Guptas – it must be a non-negotiable when it comes to registered political parties.

Yet for some undisclosed reason, the great anti-corruption fighter President Ramaphosa has for two years delayed bringing this act into operation. 

With hugely important local government elections due in the middle of next year, it should not be delayed a minute longer.

What’s really going on?

On 21 January 2020, My Votes Counts, a civil society organisation whose campaign and litigation was crucial in forcing Parliament to develop this Act, together with 19 other prominent civil society anti-corruption organisations, wrote to President Ramaphosa requesting that he gazette a date for the implementation of the Act “without any further delay”.

The letter also counselled the president that the 2019 amendments to the Promotion of Access to Information Act (PAIA) fell short of the Constitutional Court’s order in the ground-breaking judgment of My Vote Counts NPC vs the Minister of Justice & Others. 

Civil society argued that the Bill would leave a window open for corruption, particularly concerning donations made to independent candidates (who may now stand for election), as well as donations below the R100,000 threshold (which do not need to be declared, according to the PPFA).

The letter did not receive a response.

Eleven more months have passed and President Ramaphosa has still not explained why he is delaying the act. 

This is a stain on his record. 

It suggests that he might be facing a conflict of interest between his duty to the country and the Constitution as our president, and his duty to the ANC as its president.

This charge is not made lightly. 

It is known that Paul Mashatile, the ANC’s treasurer general, Ace Magashule, the ANC’s secretary general and others have publicly stated that they want the Act to be amended and the threshold for disclosure and donations raised. 

This has been roundly criticised by ANC veterans like Mavuso Msimang.

But the ANC is not alone: they are supported by the other two largest political parties in Parliament, the DA and the EFF. 

Perversely, one of the arguments they advance is that the changes mandated by the Act should only happen when the economy is fine – which means, conveniently (for them), we are going to wait a long time.

Maverick Citizen asked the presidency what’s going on and last week Tyrone Seale, the president's spokesperson, told us that the reason the president had not signed was because “the Independent Electoral Commission (IEC) needs regulations amended and approved by Parliament and is not ready to implement the Act”. 

Seale also told us that “responsibility for introducing these regulations lay with the Department of Home Affairs (DHA)”.

However, Siya Qoza, spokesperson for the DHA, told us yesterday that the DHA had submitted draft regulations to Parliament in early October.

Whether amended regulations are even necessary – rather than being used as a delaying tactic – is another bone of contention. 

Seale, who had consulted legal advisers to the president before replying to our question, admitted he was not aware that in a statement issued earlier this month on its website, the IEC had said categorically that it “is ready to implement the legislation once the president announces its implementation date”.

The IEC statement acknowledged that:

“Some areas of potential clarification and enhancement in the legislation have come to light. This includes the probable impact of any amendments to the Electoral Act in respect of independent candidates in national and provincial elections.” 

However, it stressed that “as it is with any law, the Act will be subject to refinements born out of the realities of implementation. However, these do not directly affect the implementation or effectiveness of the Act” (emphasis added).

In other words, the IEC is ready to go.

Civil society discontent

Civil society was always at the forefront of calling for transparency in party political funding and, for good reason, is now expressing growing concern that something is amiss.

Time is running out… if the Act is to apply before the local government elections, allowing “we, the people” to see who’s really paying the pipers.

Time is running out… if the Treasury is to budget funds for the operation of political parties in the 2021/22 financial year. 

As a result, there are even rumblings about a court case to force the president to bring the act into operation. His failure to do so, two and a half years after 85% of MPs voted for it, is unconstitutional.

For all these reasons the country calls on President Ramaphosa to urgently explain what’s going on and set a date for implementation of the Act before the end of this year.

Failure to do so, sadly, suggests that once more it’s party – not country and Constitution – first.

Do the right thing, President Ramaphosa. DM/MC

Mark Heywood is the Editor of Maverick Citizen