Although the Constitutional Court judgment on the executive ethics code has been welcomed as a victory for access to information and transparency in South Africa, electoral system advocacy organisation My Vote Counts has warned that this is the beginning of a long and complicated process of amending the code and making it into law.
The apex court upheld a high court ruling that the executive ethics code is unconstitutional and invalid in that it does not compel members of the executive to disclose donations made to campaigns for positions within political parties, and gave Parliament 12 months to amend it.
The Constitutional Court held that the purpose of the wide-ranging provisions of the Executive Members’ Ethics Act was to ensure that executive government members do not place themselves in compromising positions that may impair their ability to discharge their duties without any undue influence, which includes the acceptance of undisclosed financial contributions.
The court said:
The new law will require all executive members, including the president, deputy president, ministers and deputy ministers, to disclose their funding, although though it won’t be retrospective, which the critics of President Cyril Ramaphosa are disappointed in as they wanted him to account for his the CR17 donations of 2017, for his candidacy for ANC president.
Sheilan Clarke, head of communications and stakeholder management at My Vote Counts, said the judgment was a victory in terms of transparency because it further solidifies what they have been fighting for, for years.
There are many processes to be followed till the amendment becomes a law.
“There will be a consultation process before it is sent to the president to sign. We all know that there are many things which are at the president’s desk.”
Clarke said it might take over two years to make the executive ethics code into law.
“If we don’t see where money comes from in our political sphere, how do we know that everything is fine? How do you know that politicians and political parties play towards the interests of the voter?” she asked.
Clarke said that, in principle, politicians should be accountable to the voters, not to political parties.
“So, it is a victory for voters. It is just another way in which we solidify the fact that access to information and transparency is crucial to make sure that democracy works or how it should work.”
Solly Malatsi of the DA said the party welcomed the judgment with regards to the declaration of financial interests by members of the executive, especially pertaining to internal party campaign funding.
“DA federal leader John Steenhuisen visited the Union Buildings earlier this year to assess the register of executive members’ interests and resolved that there needed to be far more transparency and accessibility surrounding this information,” Malatsi said.
He also said the DA was already compiling a private members’ bill to amend the Executive Members’ Ethics Act in this regard, and the party would include the findings of the Constitutional Court judgment in the proposed legislation.
The ruling comes after the amaBhungane Centre for Investigative Journalism challenged the executive ethics code, arguing that politicians could take advantage of gaps within the code to escape scrutiny.
The Public Protector’s office also welcomed the ruling, saying that the enforcement of the code was the exclusive domain of the Public Protector to the extent that it seeks to bring legal certainty.
In 2020, Public Protector Busisiwe Mkhwebane found that Ramaphosa had breached the code by not disclosing donations he received for his CR17 campaign, but her findings were was overturned by the courts.