AmaBhungane Comments on Political Party Funding Act No.6 2018 - Regulations

1. AmaBhungane Comments on Political Party Funding Act No.6 2018 - Regulations Presentation to the Independent Electoral Commission Karabo Rajuili, Advocacy Coordinator AmaBhungane Centre for Investigative Journalism 01 August 2019

2. Background on amaBhungane

3. Background on amaBhungane • AmaBhungane is an independent, non-profit media company founded in 2009. • Develops investigative journalism to promote a free, capable and worthy media and open, accountable and just democracy. • We make our submissions as part of our advocacy mandate, which is to help secure the information rights that investigative journalists need to do their work.

4. Our interest in the draft Regulations • Strengthening the legislation, to allow for the free flow of information necessary for the media and investigative journalists to inform the public. • Supporting the constitutional right to information and media freedom. • Enabling media, civil society and oversight bodies – Parliament and the IEC – to monitor compliance and exert accountability.

5. Issues raised in our submission Adequacy of the disclosure provisions: • Section 1: General Provisions – Part A, Interpretations • Cl 2 (7) Definitions ; Cl 5 Multiparty Democracy Fund; Cl 8(3) and Cl 8(5) Disclosures by Political Parties ; Cl9(1) and 9(4) Disclosures by Juristic Persons ; CL 10 Publication of donations • Section 2: General Provisions – Part B, Forms, Declarations and Requests (Documents) • Additional comments on areas of disclosure

6. Part A. Definitions • Cl2(7) defines a contributor to mean any person who makes a donation as contemplated in terms of Section 3(3)a of the Act. Section 3(3)a of the Act reads: (3) Subject to subsection (4), the Commission must credit the account contemplated in subsection (2) with— (a) money received from any private source whether from inside or outside the Republic; • Unclear whether person in cl2(7) includes donors who may be juristic person/s. • We recommend that the definition be amended to clearly include natural and juristic persons, to remove any uncertainty. Proposed NEW wording 2(7) “Contributor means any Person [including juristic persons] who makes a donation as contemplated in terms of Section 3(3) a of the Act”

7. PART A. DISCLOSURE OF CONTRIBUTIONS TO THE MULTI-PARTY DEMOCRACY FUND • Cl4(5) provides the circumstances under which the Commission must decline request for nondisclosure. • Anonymity makes use of the Fund susceptible to “laundry” of improper contributions. • To strengthen this section and ensure constitutional values of transparency and accountability are adhered to, we recommend: • Insertion of a public interest consideration as a new (5)(c) of this section. Proposed NEW wording suggestion: [5 (c )Notwithstanding (a) and (b) above, the Commission must refuse a request for non-disclosure if: (a) the disclosure of the record would reveal evidence of- (i) a substantial contravention of, or failure to comply with, the law; or (ii) an imminent and serious public safety or environmental risk; and (b) the public interest in the disclosure of the record clearly outweighs the harm contemplated in the request for non-disclosure.]

8. PART A. Disclosure of donations received by Political Parties in terms of section 9 • Cl8(3) provides an important anti-circumvention clause to avoid donation splitting below the prescribed threshold. • We make proposals to strengthen the intention of the provision.

9. PART A. Disclosure of donations received by Political Parties in terms of section 9 Proposed NEW wording for Clause 8 amendments 8(3) The Accounting Officer must ensure that all Donations received from the same Person [including juristic persons] in any Financial Year which aggregate exceeds the Disclosure threshold are disclosed to the Commission, notwithstanding that the individual amounts donated in any Financial Year by such Person, may on its own, be less than the Disclosure Threshold [The same Person including a juristic person are defined as, but not limited to: i. A company and its subsidiary; ii. A natural person and a juristic person of which the former is a shareholder, a beneficial owner, a trustee, a director or a partner; iii. Husbands and wives; and iv. Parents/guardians and minor children/wards. When a contribution/donation is made via a third party, the original source of the contribution/donation must be declared to the party which receives it, and the party must declare the original source for the purposes of disclosure. Failing to do so must be an offence. Splitting a contribution/donation between different persons or into different twelve-month reporting periods with the intention of circumventing disclosure must be an offence.] …….. 

10. PART A. Disclosure of donations received by Political Parties in terms of section 9 • Cl8(5) provides the public access clause for the inspection of records held by the Commission. This is a commendable inclusion. • We recommend that this be strengthened to give meaningful right of access. Often the information is of such a nature that it can be properly studied over time only and by various people with the requisite know-how Proposed NEW wording 8(5) A record of all disclosures made as provided for in this Regulation shall be kept by the Commission. [Members of the public] shall have the [right to access and] inspection [either a)] during normal business house at the office of the Commission [b) by requesting certified copies of the documents and following payment of a prescribed fee per page within 5 – 7 workings days, or (c) electronically on request within 2 working days.

11. PART A. Disclosure of Donations made by Juristic Persons in terms of section 9(2) • Cl 9(1) provides that “Every Juristic Person or Entity who makes Donations to those Political Parties which in aggregate exceed the Disclosure Threshold in any Financial Year shall disclose Donations to Commission, in a prescribed form substantially similar to PPR6.” • The substance of what is considered ‘in aggregate’ should be given clarity in the Regulations to avoid risks associated with possible donation splitting. • At minimum a donation should be considered to come from the same juristic source or entity where there is a substantially close relationship.

12. PART A. Disclosure of Donations made by Juristic Persons in terms of section 9(2) Proposed NEW wording for Cl 9 amendments 9(1) Every Juristic Person or Entity who makes Donations to those Political Parties which in aggregate exceed the Disclosure Threshold in any Financial Year shall disclose Donations to Commission, in a prescribed form substantially similar to PPR6. [A donation from a juristic person or entity shall be considered to be from the same source, where there is substantially close relationship, such as: a) company and its subsidiary, or b) a juristic person who is a shareholder, a beneficial owner, a trustee, a director or partner. In such instances a donation/s should be considered as coming from the same source, and therefore count toward the in aggregate amount. When a contribution/donation is made via a third party, the original source of the contribution/donation must be declared to the party which receives it, and the party must declare the original source for the purposes of disclosure. Failing to do so must be an offence.]

13. PART A. Disclosure of Donations made by Juristic Persons in terms of section 9(2) • Cl 9(4) should be strengthened a similar fashion to our proposals of C8(5) to adequately enable public inspection rights. New proposed wording 9(4) The Commission shall keep a record of all disclosures made as provided for in this Regulation 9. [Members of the public] shall [have the right of access and] inspection [either a)] during normal business house at the office of the Commission [b) by requesting certified copies of the documents and following payment of a prescribed fee per page within 5 – 7 workings days, or (c) electronically on request within 2 working days

14. PART A. Publication of donations in terms of section 9(3) of the Act • Cl 10 prescribes the manner and form of publication for donations and is a vital accountability tool. • This is stated as quarterly via Gazette. • However, there not all members of the public have access to the Gazette. We therefore recommend that in addition to publication in the Gazette, the same information is also made available on the IEC website within 7 working days of publication.

15. PART B. Forms, Declarations and Requests (Documents) • Form PPR4 – Disclosure of Donations Received by a Political Party • To ensure potential conflicts of interest and corruption are identified where a legal entity is identified as company, the allocated section in the form should by default include information on shareholders and beneficial owners and nominee shareholder to assist the Commission and the public in identifying potentialconflicts of interest. • Aprovision has already been included where an entity is a Trust, Trustees must be declared. • The same principal of disclosure of information should apply to Form PPR6 – Donation by a Juristic Person; as well as Annexures PPR14 where legal status of a donor must be stated and the donor is a company.

16. Additional comments on areas of disclosure • Regulations pertaining to public disclosures of Chapter 5 enforcement processes • Transparency provisions for social media – the rise of political advertising on social media/use of influencers.

17. Q & A Karabo Rajuili amaBhungane Centre for Investigative Journalism karabor@amabhungane.org