The previous brief set out amaBhungane’s challenge to the constitutionality of the Executive Ethics Code (the Code)[i] on the basis that it does not require members of the Executive to disclose donations made to their campaigns for positions within political parties. This brief seeks to show that amaBhungane’s case is an important one, but that more work needs to be done in order to achieve transparency from all politicians. This brief also shows, with reference to the donations made to President Ramaphosa’s campaign for his candidacy for the Presidency of the ANC (the CR17 campaign), why it is crucial that disclosure of campaign donations be made, rather than remaining ignorant of donor identities.
The Wisdom And Limits Of Amabhungane’s Challenge
Three years ago, in June 2018, the Constitutional Court (CC) in My Vote Counts NPC v Minister of Justice and Correctional Services[ii] ruled that the Promotion of Access to Information Act[iii] was inconsistent with the Constitution because it did not allow for the “recordal, preservation and reasonable disclosure of information on the private funding of political parties and independent candidates”.[iv]Though the CC was dealing with parties and independent candidates, its statement that “[s]ecrecy enables corruption and conduces more to a disposition by politicians that is favourable towards those who funded them privately once elected into public office”[v] is equally applicable to amaBhungane’s case.
The argument could be made that funding for an internal party campaign only enhances the politician’s standing within the party and will not necessarily result in an election to public office. This was indeed the CC’s reasoning for why the CR17 donations did not need to be disclosed.[vi]
It must be admitted, though, that greater standing within a party will affect a politician’s prospects of attaining public office. And once in public office, it is very possible that the donor who aided the politician’s rise to success will come knocking. Further, as amaBhungane points out, “win or lose, the candidate may feel beholden to the benefactor of his or her campaign”.[vii]To prevent this, donations to internal party campaigns must be disclosed.
However, a major limitation is that amaBhungane’s challenge relates only to the Executive Ethics Code, and members of Parliament will be under no obligation to disclose who aided their eventual seat in government. The need for consistency was raised by President Ramaphosa in a question session in Parliament when he said “all candidates [should be] held to the same requirements of disclosure and transparency” and that the disclosure of internal party funding is also not required by the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members (Parliamentary Code).[viii]Despite this, amaBhungane’s case is an important first step in demanding more transparency from government.
Importance Of Amabhungane’s Challenge Contextualised
It is important to note that amaBhungane does not seek to force President Ramaphosa to disclose the donations made to the CR17 campaign. Rather, amaBhungane’s challenge to the Code is a prospective one, aiming to curb potential corruption in the form of kickbacks being granted to private donors who had funded politicians’ political campaigns.
It may be argued that corruption may also be combatted by politicians being kept ignorant of who their donors are, to eliminate the risk of conflicts of interest arising. This was the route that President Ramaphosa said he had opted for in the CR17 campaign. In his submissions to the Public Protector (PP), the President stated that donations had been made to the CR17 campaign on a confidential basis and that he had agreed with the CR17 campaign managers that they would not tell him of donations received from anybody.[ix]
However, politicians claiming they are being kept at an arm’s length from donors does not necessarily protect against corruption. Most obviously, there is a risk that the ignorance of donor identities is imperfect. In the CR17 campaign, for example, emails relied on by the PP seem to show that the President had been actively involved in the fundraising,[x] and that he had been consulted by his campaign managers regarding plans to approach various donors.[xi] Once this knowledge is acquired by a politician, any benefit accrued by a campaign donor becomes suspicious. For example, there have been reports that CR17 donors (whose identities had been leaked) had “been elevated to board memberships in various state-owned entities”.[xii] These appointments may have been completely legitimate, but the fact that their donation to the campaign was kept secret casts a cloud of scandal over it. Had their identities been public knowledge, no such aspersions would have been cast either on the donors or on the President. The disclosure of the identity of donors is thus arguably in the interest of both the politician and the donor.
The second risk with opting for ignorance is that donations may be made by conflicted parties, or be the proceeds of illegal behaviour. For example, a donation of R500 000 had been made to the CR17 campaign by the Chief Executive Officer of Bosasa (now AGO), a firm which had had a contract with the Department of Correctional Services at the time donations were made,[xiii] and which has since been implicated in state capture.[xiv] Accepting a donation from an individual doing business with the state, or one implicated corruption, does not look good for an office-holder. It is no doubt for this reason that the President instructed the CR17 campaign managers to return the R500 000 donation to the CEO of AGO.[xv]
AGO is not the only campaign donor alleged to have been doing business with the state. The PP’s report stated that there was evidence that other donors ‘could have been doing business with the state’ and ‘stood to benefit substantial financial returns from such big government contracts’.[xvi] It is perhaps these allegations that led to Rampahosa ordering a review of all donations made to the CR17 campaign.[xvii] If the identity of private donors was an open process from the beginning, those in charge of managing politicians’ campaigns would be more circumspect about accepting donations from contentious donors, thus avoiding the necessity of repaying donors or ordering ex post facto reviews.
The call for a review seems to suggest an acknowledgement that donors must be identified, vetted, and disclosed. This, coupled with comments made by the President that Parliament should decide whether it is “necessary and desirable for funding of internal party contests to be disclosed and regulated”,[xviii] might have given one the expectation that the President would support amaBhungane’s challenge. It is unfortunate and puzzling, then, that the President is opposing amaBhungane’s case, especially given the fact that the case is NOT targeted at the revelation of CR17 donors.
In any event, the President’s lawyers have made a valid argument that, at best, what amaBhungane could establish is that there is a duty on Parliament to pass legislation regulating funding for internal political party campaigns, but that the Code is not necessarily the piece of legislation that must require such disclosure. As stated above, amaBhungane’s case fails to demand disclosure of the identities of persons who had donated to the political campaigns of members of Parliament. There is thus wisdom in the averment that the Code is the inappropriate instrument for requiring disclosure of funding to internal party campaigns.
The President’s lawyers also contend that the approach of the campaign was constitutionally compliant since it had taken steps to distance Ramaphosa from “direct benefit and control of campaign funds”.[xix] As explained above, deliberate unawareness of donors and a lack of involvement in a political campaign does not adequately safeguard against corruption. Instead, it is amaBhungane’s alternative– the candid disclosure by politicians of donations to their internal party campaigns – that properly combats corruption.
Conclusion
AmaBhungane has argued that the Code is unconstitutional because it does not require politicians to disclose donations they received in their internal party campaigns. The President’s professed ignorance of donor identities during his CR17 campaign led to the reception of donations from controversial persons and caused aspersions to be cast on the integrity of the President and the donors. For these reasons and, more importantly, to ensure that corruption does not occur, disclosure is essential. It is arguable, however, that attacking the Code is the wrong way of achieving this noble goal. In the next brief, I consider more appropriate bases upon which the Code, and the Executive Members’ Ethics Act, can and should be challenged.
Zeenat Emmamally
Legal Researcher
zeenat@hsf.org.za
[i]Government Gazette No 21399 of 28 July 2000, available here.
[ii]2018 (5) SA 380 (CC).
[iii]Act 2 of 2000.
[iv]See note ii.
[v] Ibid para 45.
[vi]Public Protector v President of the Republic of South Africa 2021 (9) BCLR 929 (CC)
[vii]Cherese Thakur “AmaB Advocacy: Internal political party campaign financing — all eyes on the high court” (9 September 2021), available here.
[viii] Daniel Friedman “If I must disclose my funding, everyone else must too, Ramaphosa tells Malema” (The Citizen, 22 August 2019), available here.
[ix]Report No. 37 of 2019/2020 on an investigation into allegations of a violation of the Executive Ethics Code through an improper relationship between the President and African Global Operations formerly known as BOSASA, available here. See pages 56 and 95.
[x]Note vi above, para 78.
[xi]Kyle Cowan and Lizeka Tandwa “Exclusive: Leaked emails reveal who Ramaphosa's CR17 campaign asked for money” (News 24, 3 August 2019), available here.
[xii] Bongani Hans “CR17 donor scores R1.5bn Eskom contract” (IOL, 14 September 2020), available here.
[xiii] Note ix above, page 62-63
[xiv] Qaanitah Hunter “Cyril Ramaphosa 'gives back' Gavin Watson's R500,000” (Times Live, 3 February 2019), available here.
[xv] Note ix above, page 44.
[xvi]Ibid page 97.
[xvii] SABC “‘Ramaphosa’s decision to pay back donation raises more suspicions’” (SABC news, 17 November 2018), available here.
[xviii] SABC News “MPs challenged on disclosure, regulation of internal party political funding”
(22 August 2019), available here.
[xix] Note vii above.
