Home affairs minister Aaron Motsoaledi has justified a proposal in the Electoral Matters Amendment Bill to change the formula for the allocation of funds to political parties.
The change is strongly opposed by small parties, which argue that they will be prejudiced by the change. The bill is now before parliament’s home affairs committee and the select committee on security and justice.
The proposed law was made necessary by the decision of the Constitutional Court that the exclusion of independent candidates contesting national and provincial elections was unconstitutional. This required independent representatives to share in the political funding provided for under the Political Party Funding Act.
In terms of the bill, the proportional allocation (based on seats obtained) of available funds will be raised from 66.6% to 90% and the equitable allocation reduced from 33.3% to 10%. Opponents argued at last week’s public hearings on the bill that if the allocation formula changed as proposed independent representatives and smaller parties would see their public funding decrease dramatically.
Elections expert Michael Atkins gave a breakdown of what each represented political party would get under the proposed formula, noting that the ANC’s share would go from 43.38% to 53.92% and the DA from 18.32% to 20.09%, while those of smaller parties would drop.
Motsoaledi said at a committee meeting on Friday that the constitution requires a proportional and equitable distribution of funds, and that the two-thirds and one-third split skews the application of this constitutional principle and results in unintended consequences.
“We are of the considered view that with the addition of independents, the usage of the two-thirds and one-third split will not amount to the allocation being proportional and equitable. The allocation should therefore be 90/10 [as this] split is the only way in which proportional and equitable allocation can be achieved.”
Insufficient participation
ACDP MP Steve Swart said in an interview that this proposal represents a "massive" substantive amendment, which is unnecessary was not necessary at this stage and will be fought tooth and nail by smaller parties as it will devastate them. A substantive amendment would require a more thoroughgoing public consultation process and not be rushed through as required for this bill by the general election.
Some participants in last week’s public hearings argued that the bill has been rushed with insufficient public participation, though parliamentary legal adviser Telana Halley was of the view that sufficient time had been allowed for inputs into the bill.
Though she believed the change to the allocation formula was a substantive amendment she said it was the prerogative of the executive to develop policy and for parliament to decide on it. She warned, however, of the danger of unfair discrimination against smaller parties or independent representatives.
Motsoaledi also defended a much-criticised clause in the bill that would allow the president to determine the minimum disclosure threshold for donations, the upper limit for donations, and the limit on donations from foreign entities. The law now requires a resolution by parliament for the president to make regulations to set these thresholds, but the bill will require only consultation with the committee on home affairs and the minister.
Critics said this gave “unfettered” power to the president who as head of a political party would have a conflict of interest.
Council for the Advancement of the SA Constitution (Casac) executive secretary Lawson Naidoo pointed out that there is a risk that the president may set the minimum disclosure threshold for donations so high “as to effectively exempt most donations from disclosure”, while being empowered to determine the upper limit for donations carries the risk that this would be made so high “as to render the purpose of imposing a limit superfluous”.
Plenary power
The risk of an unfettered presidential power to determine the limit on donations by foreign entities entails the risk that this was made so low as to deprive opposition political parties of in-kind donations received from foreign entities, or so high as to enable foreign interference in the electoral process.
Halley said this is a substantive amendment and cautioned the committees that it could be argued that the president has been assigned plenary power.
“Funding of political parties is fundamental to the promotion of a multiparty democracy. It could be argued that to place this power in the hands of the president, who carries many hats, may affect the principles of democracy enshrined by the constitution, hence rendering that provision unconstitutional,” Halley said.
However Motsoaledi said that there has been no indication in the past that the president has abused his powers in this regard or that there is a conflict of interest. The president would still have to consult parliament and be required to consider objective factors such as the actual fiscal contribution to public party funding, inflation, and the actual costs of running a party and running elections, as submitted by parties.
Independent Electoral Commission CEO of political party funding George Mahlangu said this proposal is substantive. He said the current provision must be retained “as the involvement of the legislative arm in the process does ensure that there is a multiparty participation in the eventual determination of the limits and thresholds”.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.