Image courtesy: Dr. Hage Geingob / Facebook
A claim by Namibian president Hage Geingob about the disclosure of donations received by political parties has attracted much discussion on social media.
In short, president Geingob claimed that the ruling party, until 18 November 2019, had been under no legal obligation to comprehensively declare or publicly disclose donations received up until then. The claim is true.
The president’s claim was part of a statement made at a media briefing on Sunday, 12 July 2020, in the context of responding to allegations of the ruling Swapo Party having benefited financially from the Fishrot fisheries corruption scandal.
The media briefing was held at the ruling party’s headquarters in Windhoek on the Sunday afternoon, and with regard to donations to political parties, president Geingob read the following from his prepared statement:
“In terms of section 141(2)(a) and (b) of the Electoral Act 5 of 2014 (“the ECN Act”), a registered political party which has received domestic donations, in an amount more than a prescribed amount, in a financial year from a Namibian person or institution, must disclose to the public within a period, and in the manner prescribed in the ECN Regulations. The prescription of the prescribed amount (the upper limit) in this context is to be done by Regulations made and published by the ECN in the Government Gazette.
– President Hage Geingob
Because of the prolonged consultation since the coming into effect of the new Electoral Act and other bureaucratic processes required before coming up with the ECN Regulations on the prescribed maximum total amount for political donations, I understand that the process was unfortunately only completed during 2019. Therefore, until 17 November 2019 the ECN Regulations required under the ECN Act, to fix a maximum donation threshold were non-existent.
Consequently, political parties that may have received donations between 2014 to 17 November 2019 would not have been under statutory obligation to publicly disclose donations as the prescribed donation amount beyond which donations must be publicly disclosed did not exist at the time. Resultantly, both recipients of political donations, and donors, were under no obligation, until 18 November 2019, to make public disclosure of donations beyond the fixed threshold amount.”
What was the legal status of political donations until late November 2019?
The Electoral Act (5) of 2014 states the following in section 141(2)(a) and (b):
However, while the law is clear, up until late November 2019 the regulations that spoke to section 141, and other sections concerning political financing and funding issues, had not been gazetted. This meant that, as president Geingob claimed, that registered political parties had legally been able to sidestep the provisions of section 141.
As to why this situation had been allowed to persist for so long, in August 2019, in response to questions for an Institute for Public Policy Research (IPPR) Democracy Report briefing paper on the topic of political financing and funding, the chief electoral officer at the Electoral Commission of Namibia (ECN), Theo Mujoro, stated:
“In terms of the Electoral Act, “prescribe” means prescribe by way of regulations. Both section 139 and section 141 of the said Act refer to a “prescribed form” as well as a “prescribed amount”. In order to facilitate this, the Electoral Commission held a workshop and several consultative meetings with political parties to enable the parties to agree on this “prescribed amount” as referred to in section 141. This was agreed upon during this year and a draft of the regulations is currently with the Directorate: Legislative Drafting in the Ministry of Justice and will only be gazetted after it has been approved and certified by them. Therefore, sections 139 and 141 are not currently in operation. Since the Act provides that the Commission will determine when it will come into operation, the Commission will consider the issue once the Regulations are gazetted.”
– Theo Mujoro, chief electoral officer, Electoral Commission of Namibia
The regulations – Government Gazette No. 7053 – giving force to various sections of the Electoral Act of 2014 were only gazetted on 18 November 2019, as president Geingob pointed out on 12 July 2020.