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Yesterday President Ramaphosa assented to the unconstitutional Electoral Matters Amendment Bill (EMAB). The Bill was introduced in December 2023 and was necessary to amend several pieces of legislation to allow independent candidates to contest national and provincial elections. But the Bill was also used opportunistically by the ANC to undermine political party funding laws.

What is wrong with the Electoral Matters Amendment Bill?

In the submissions that MVC and many others made to both houses of Parliament as part of the public participation process, we warned that the EMAB, in relation to the Political Party Funding Act (PPFA), was deeply flawed and unconstitutional for the following reasons:

It places too much power in the position of the President to determine the upper limit of donations and the reporting threshold in the PPFA. This arrangement essentially allows the President to set rules that could disproportionately benefit their political interests, creating an unequal playing field for other political entities. It is also irrational to vest these powers in the President.

It creates a lacuna in the PPFA. Unless the President simultaneously proclaims the regulations governing the upper limit of donations and the reporting thresholds there will be NO limits and NO reporting requirements. This means that parties will be able to take donations, of any nature and amount, and not have to make this public. This is the type of environment that enabled State Capture.  

The public participation process on the EMAB in Parliament was flawed.  

You can read MVC’s submissions made to the Portfolio Committee on Home Affairs on 25 January 2024 here. On 19 March 2024, with other members of civil society, we wrote to the Select Committee on Security and Justice (read here) raising these issues.  

Parliament and the President ignore submissions

In addition to warnings from civil society, opposition parties, and a Parliamentary Legal Advisor voiced concerns in parliamentary hearings on the constitutionality of the EMAB. Despite this, on 1 March the Portfolio Committee adopted the EMAB and on 26 March the Select Committee adopted it. Following this, it was sent to the President for consideration and signing.  

On 27 March, MVC wrote to the President, urging him to not sign the EMAB into law. We urged him to exercise his powers and refer the EMAB back to Parliament for reconsideration and remedy.  

In April, opposition parties in Parliament petitioned the President to not sign the EMAB, citing its unconstitutionality.  

Also in April, the President received advice from the National Anti-Corruption Advisory Council (NACAC). The Council, that was set up by the President, advised the President on the dangerous impact the EMAB will have on transparency.

On 3 May, at a special meeting of the National Assembly Programing Committee, parliamentary legal advisor, advocate van der Merwe, admitted that there was a problem with the EMAB. She is quoted as saying that, ‘There will be a gap in the law once the Electoral Matters Bill has been assented to, because there will not be any upper limits for donations or a disclosure limit until the president makes those regulations. And the president can only those regulations, upon a resolution of the Assembly…So, we are sitting a bit between a rock and a hard place’. Her proposal was that the National Assembly makes a resolution, and the President would then make regulations based on that resolution.

Despite this, the President has defied the spirit of the Constitution and signed the EMAB.

Where to from here?

MVC’s understanding is that the State Attorney is aware of the problem that would arise if the commencement date for the EMAB is not parallel to the proclamation of limits. This explains the recent proposal in Parliament to pass a resolution on the limits. Our understanding is that the key limits – the disclosure threshold (currently at R100k) and the upper limit (currently at R15m/year) – will remain unchanged or close to what they are currently.  

This, of course, will avoid the creation of a lacuna in the law. However, the entire legal mess could have been avoided, at multiple junctures, if Parliament had done its job, and if the President sent the EMAB back to that institution.  

This does not, however, deal with the underlying issue – that the EMAB, in relation to the PPFA, is unconstitutional. Vesting all the power with the president to make a final determination of the two limits is open to abuse. We should not be forced into a situation where there is a lack of clarity on such an important issue and be concerned that every time these limits are amended, there could be a conflict of interest.  

A year ago, MVC launched an application at the Western Cape High Court, challenging aspects of the PPFA. We argue that the law, in its current form (before the EMAB tinkering) is unconstitutional because it does not go far enough to promote transparency in party funding. The efforts to weaken the PPFA through EMAB will be dealt with as supplemental matters in our court case, which is set to be heard in August this year.  

Conclusion

The media statement alerting the public that the EMAB had been assented to ends with a quote from the President: ‘In a year in which voters are presented with the greatest diversity of electoral choice, the legislation that is now enacted constitutes tangible, material support for a vibrant, competitive, open and equitable electoral system and democratic culture.’

This political spin has little to do with democracy or the electorate or enhancing our electoral system. There was no need to amend the PPFA in the way it has been.  

As of now, the EMAB (that legally needs to be in effect before the 29 May elections) is not currently law, and the PPFA remains unamended. The President needs to set a date for commencement, at which time it will become operational. If the limits are proclaimed simultaneously, this will avoid the lacuna, and if the limits are the same, or close to what they are currently, the impact of this specific amendment, for now at least, will be limited.

MVC will be closely monitoring developments. If the need arises, we will take legal action to protect the gains we have made as a country on political funding transparency.  

Issued by My Vote Counts