Political Party Funding
The murky waters of endemic corruption in which a large part of the body politic of South Africa swims are seldom as revealing as they briefly became when a call for donations to the ANC, addressed to contractors to his municipality by the Mayor of Hessequa, Christopher Taute, was made public on 31 January 2011.Despite his denials of misconduct on his part, the wording of the request for funding attributed to him leaves it beyond doubt that the thin ice on which he was skating can not support the thrust of his claims of innocence. There is no possible nor plausible innocent inference to be drawn from the words: "As you currently have contracts with our municipality - which were made possible by this ANC-run council, I would like to make a friendly request that you contribute a donation to the ANC for the election campaign, in order to continue building on your good relations with this ANC-run council" The vital dividing line between party and state is rubbed out in this single sentence.
There is, of course, no guarantee that Hessequa will still be an ANC-run council after the elections due in May; that is what elections are for: to test the popularity of the incumbents. The message in the passage quoted is unmistakeably that the addressee is being given a friendly warning that, in the absence of a donation, the existing good relations (in the form of more contracts from the municipality) with the ANC will come to an abrupt end, procurement rules and tender regulations notwithstanding.
In an appeal involving the nearby Overstrand Municipality, the Supreme Court of Appeal commenced a recent judgment with the words:
"As this court has recently observed, awards of tenders in the public sector are a fruitful source of litigation which has led to the courts being swamped with cases concerning complaints about the award of contracts."
It is small wonder that this should be so when the mayor can see nothing wrong with his fund-raising stratagem. The "liberation movement" to which he belongs does not see itself as a political party; this lies at the root of the irregularity of his request.
The backdrop to this unfortunate development is that very little has been done to regulate the funding of political parties in the new South Africa. This was noted when the African Peer Review Mechanism (APRM) came visiting in South Africa. In their book "Lessons from the Pioneers" Ross Herbert and Steven Gruzd observe at page 145:
"In South Africa, civil society, governing council members and the final country report all recommended that the country regulate private funding to political parties in line with African Union, United Nations and other anti-corruption codes to which South Africa was a signatory. Government simply ignored the recommendation along with about half of the recommendations put to it in the final country report."
Nelson Mandela, at the height of his powers, addressing the OAU in Tunis in June 1994, sagely observed:
"We must face the matter squarely that where there is something wrong in how we govern ourselves, it must be said that the fault is not in our stars but in ourselves. We know that we have it in ourselves, as Africans, to change all this. We must assert our will to do so - we must say that there is no obstacle big enough to stop us from bringing about an African renaissance."
Nothing has been done to address the regulation of political party funding. Parliament is due to debate the issue, a debate that is long overdue and has been repeatedly postponed due to the unwillingness of all parties, with the exception of the tiny ID, to have the identity of their big donors made public. This is understandable but not excusable. Especially so in the case of the ANC, following undisputed revelations by its former SCOPA member, Andrew Feinstein MP, that the 1999 ANC general election campaign was funded, at least in part, by some of the bribes, totalling about R2,1 billion, paid in the arms procurement scandal. The DA, being an opposition party in all but one province, one city and some municipalities, is in its turn fearful that its donors will evaporate in the morning mist if the law requires that their identities and the amounts of their donations have to be made public.
The litigious efforts of IDASA to bring the political parties to book on the regulation of funding have, over a period of several years, also come to nought. The outcome of the High Court case launched by IDASA was fudged by a promise that steps would be taken to legislate a regulatory framework that would ensure the "free and fair" elections which citizens are entitled to under our progressive Constitution. The promise has not been kept, no suitable draft legislation has been introduced, let alone made law.
The right of the public to participate in free and fair elections is at the heart of our new multi-party democracy under the rule of law. It is a right guaranteed to all citizens in the Bill of Rights. It is not a right to be trifled with by political parties more interested in their own agendas and in covering up their own wrongdoing. No election can be fair if the parties contesting it are not doing so on a reasonably clean, level and well watered playing field. When the area of contestation in elections turns into a moral marshland of cronyism, extortion and corrupt contracts; then no good can emerge from the electoral process. Democracy debased is democracy denied.
This is not what Madiba had in mind in Tunis all those years ago. It is quite remarkable that the mayor of Hessequa can see nothing wrong in what he has contrived to do. This is a measure of the endemic nature of the culture of impunity that has taken root in the regulatory vacuum around the issue of properly regulating political parties when they go fund-raising. The mighty mandarins in Luthuli House got away with funding the party with the illicit proceeds of the arms deals, now the far away mayor of Hessequa thinks that he can do the same type of fund-raising himself, with equal impunity. This just won't do; not in a constitutional democracy under the rule of law. Furthermore, the activities of the ANC investment machinery known as "Chancellor House" (ironically named after the building in which the well respected firm of attorneys called Mandela and Tambo once practiced law) are questionable as they involve collusive dealings, conflicts of interest and inconsistency with the Constitution.
It is accordingly important that the mayor be brought to book whether before the criminal courts or the electoral court of the land. The fragile elements of our new found democracy can not be allowed to be trampled by the unconscionable and extortionate fund-raising methods that have been adopted in Hessequa.
Civil society has to bring pressure to bear on politicians of all persuasions to clean up their act when it comes to fund-raising. Ours is essentially a transparent and accountable constitutional order in which responsiveness to the needs of ordinary people is a foundational value. Corrupt and closed methods of political party funding have no place in such a society. The sacred and onerous constitutional duty of the Independent Electoral Commission to "ensure" free and fair elections is challenged in any place in which the type of request made by the mayor is replicated. The sheer irregularity of the mayor's request could also be drawn to the attention of the Public Protector for remedial action.
Paul Hoffman SC
2nd February 2011
