The Electoral Commission announced a few days ago: “The Commission is appointing an investigative board to investigate all the cases brought to its attention about alleged breaches to the Financing of Political Parties law (Chapter 554). The composition of the board members shall be announced in the coming days as soon as the relevant persons are appointed.”
Neither the composition nor the remit of this board have yet been made public.
From a review of the Financing of Political Parties Act, the an-nouncement raises grave doubts on the remit of the Commission to pass on investigative powers to a board. It does not seem empowered to delegate its investigative powers to an investigative board to carry out the functions which should be investigated by it alone in terms of law.
Article 45 of Part V of the Act states: (1) “For the purposes of the execution of its functions under Parts III and IV the Commission shall appoint one or more auditors who shall assist it in the execution of the said functions. (2) Both the said auditors and the Commission shall be bound by the duty of confidentiality with regards to the information received by them by virtue of this Act which shall not have been made available for the information of the public.”
So, the most the Commission is empowered to request is assistance in the execution of its functions and this only from a specified category of technical persons. This is in line with the financial nature of the investigations which the law gives to the Commission.
It is important to note that the law expressly provides for an audit review and not for an investigation in the general sense of the word and that the nature of its findings are by law defined as confidential.
This in itself excludes any use of persons other than those mentioned in the law.
The Act states that “auditor” shall have the same meaning assigned to it in article 2 of the Accountancy Profession Act.
The Commission will still face issues of being considered at one and the same time as investigator, judge and jury even if it composes this undefined investigative board
All this is very much to the point since the questions on donations fall under Part IV of the Act which concerns the “Control of donations to registered parties”. Part III is entitled “Accounting Requirements”.
These are the facts:
The Act only envisages only one other organ to be involved in the workings of this act, namely the First Hall of the Civil Court. The Electoral Commission is empowered to fine an offending party “administrative fines” the imposition of which, strange but true, are to be carried out in terms of regulations issued by another political figure, namely the Minister of Justice.
Article 39 (4) provides: “Where the First Hall of the Civil Court, is satisfied on an application made by the Commission, that any failure to comply with any such requirements in relation to any donation to a political party or an independent candidate…. the Court may order the forfeiture in favour of the government by the political party or independent candidate of an amount equal to the value of the donation.”
Political parties and other interested persons may contest the findings of any breach of the provisions of this Act and the infliction of administrative fines and sanctions by the Commission in the First Hall of the Civil Court.
The expenses of any audit carried out by an auditor appointed by the Commission including the auditor’s remuneration, shall be recovered by the Commission as a civil debt, from the funds of the political party concerned.
So, the Electoral Commission has been given by the Financing of Political Parties Act the power of imposing a number of fines most of which are rather hefty and which go beyond the administrative nature from the human rights perspective.
These may easily be defined by the European Court of Human Rights as being of a penal nature which in turn bring into question the full guarantees of a fair trial.
This means that the Commission will still face issues of being considered at one and the same time as investigator, judge and jury even if it composes this undefined investigative board.
The answer is clear. If truth is to be ascertained fast, there needs immediate legislative intervention on at least two levels to regularise this serious human rights anomaly.
The first is to ‘constitutionalise’ the functions of the Commission in this field of party financing by including it in article 60, 61 and 61A of the Constitution at the two-thirds level and, secondly, to legislate a proper separation of the Commission’s decision-making powers from the investigative part through the introduction of a proper independent investigative structure which needs to be set up by law, not by the Commission, to prevent doubts on the fair trial guarantees.
Austin Bencini is a constitutional lawyer.