My Vote Counts and the Transparency of Political Party Funding in South Africa
Publication Type:
Journal ArticleSource:
Law, Democracy, & Development, Volume 22, p.1–11 (2018)Abstract:
Transparency and opacity are mutually supported and nurtured within a constitutional democracy. From such a perspective, the decision of the Constitutional Court of South Africa in the My Vote Counts case represents one interpretation of constitutional authority to enforce the right of access to information. The case is a lost opportunity to begin a respectful dialogue between the judiciary and the legislature over the shape and content of information security and disclosure laws. The right of access to information is best read in its original context with a Schedule item of the interim Constitution to provide for a once-off duty to pass information disclosure legislation of some type, and thereafter to continuously signal the degree of deference due to Parliament by the judiciary in reviewing Parliament’s legislative choices in enforcing the right of access to information. In this view, with regard to the right of access to information and the right to just administrative action, the judiciary owes Parliament a degree of deference with regard to its legislative choices especially on the matter of appropriate institutional design (the enforcement mechanism) to give effect to the rights. Instead, the My Vote Counts majority too quickly adopted an interpretation mandating the passage and maintenance of a field-covering and exclusive piece of national legislation in order to give effect to the right of access to information, understandably reasoning from existing administrative law jurisprudence. While such a choice may be appropriate with respect to the mandated exclusive judicial review mechanism in administrative law in part for reasons of constitutional structure, such a choice would not be appropriate in the field of access to information where Parliament has made a different choice. It does not make good institutional and pragmatic sense that disclosure of information occur only through a request for information made in terms of the national access to information legislation; and the Constitution mandates no structure – such as the courts – to underpin such a rule. In conclusion, two other avenues of enforcement of the right of access to information – horizontal application and provincial enforcement through legislation – are explored.
Law and Personhood
The assembling of a new set of South African and global citizenships has taken on new urgency and a new plurality twenty years after the supposed advent of freedom. Categories make persons and persons make categories, as Jones and Dlamini have recently pointed out. In the South African constitutional text – where the phrase ‘categories of persons’ is written – race is but one of sixteen categories on the formal list. The Constitutional Court has added more. Indeed, the effort of desegregating publics now takes place without the freshness of new symbols and with potentially stale institutions. In the public sphere, some responses to this era of citizenship reformation harken back to earlier times – either to times of forward-thinking, to times of social-making, or even to times of separating. Other responses rest in a consumptive present or appear as mere promised rhetorical bridges into the future. In this project WISER will examine the new questions that scholars in law, society and the humanities are posing themselves and others. What are the complex fashions in which bounded enclaves and social categories are fraying and unravelling or reforming? How, if at all, are persons remaking themselves as citizens? At the same time that these questions pose themselves, new fields of play are emerging with the changing audiences of the fashion shops and the sports terrains as well as the changing forms and formats of affluence and the new middle class. The very concept of a person as well as their categorical boundaries may shift with the movement of blood, organs, and self-awareness.