Campaign Finance Bill violated RTI Act, Supreme Court rulesView(s):
The Supreme Court in its ruling on the first-ever Regulation of Election Expenditure Bill criticised a clause that provided for the Elections Commission to preserve returns and declarations on expenditure only for six months and ruled that it was contrary to the Right to Information Act.
Further observing that ‘introducing legislation only to regulate the expenditure of individual candidates would adversely affect the sovereignty of the people,’ the Supreme Court also ruled that the Bill violated Articles 3, 4 and 12 (1) of the Constitution in failing to regulate the expenditure of political parties.
In its three-judge determination communicated to the Speaker, the Court advised that the Bill must be ‘suitably amended’ so that conditions regarding contributions and donations received as well as expenditure incurred, must apply to ‘individual candidates, political parties, and independent groups contesting at an election.’ Otherwise, the Bill must be referred to the people at a Referendum apart from being passed with a special majority in Parliament, it was said.
The Court ruled that Clause 7(3) of the Bill was contrary to the Right to Information Act, Act No 12 of 2016 (RTI Act) in that, it provided for the Elections Commission to preserve returns and declarations on expenditure only for six months before destroying the documents. Section 7(3)(b) of the RTI Act prescribes that new records which are created after the Act came into power, must be preserved for a period of not less than twelve years.
Accordingly, referring to Section 4 of the RTI Act which provided that the provisions of the RTI Act shall prevail over any other ‘written law’ in the event of any inconsistency with the same, the Court pointed out that Clause 7(3) of the Bill ran contrary to Section 4. The RTI Act is the ‘applicable law’ in terms of Article 14A of the Constitution which secures the right to information of citizens as ‘provided by law,’ the judges said.
At the hearing before the Court, the Attorney General undertook to delete Clause 7(3) at committee stage.
Examining other clauses in the Bill, the Court also stated that, the calculation of the ‘authorised amount’ beyond which the incurring of election expenditure becomes an illegal practice, has to be determined by stipulated criteria. Moreover, not only direct but also ‘indirect’ donations and contributions from, inter alia, government departments, foreign governments, incorporated companies or ‘any person whose identity is not disclosed’ must be prohibited.
These amendments were also agreed to, by the Attorney General along with extending the time frame to allow sufficient time for the filing of election petitions for the alleged committal of an ‘illegal practice.’
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