An outspoken Ghanaian law professor, Stephen Kwaku Asare, has raised a red flag over the charging of nomination fees from persons who put themselves up for election as president and parliamentarians.
He argues although Regulations 6 of CI 75 gives the Electoral Commission the mandate to charge those fees, the country’s 1992 constitution does not give the Commission the power to tax either voters or candidates for elections.
Prof. Asare thus wants the EC to renounce the GHC50,000 and the GHC10,000 it announced as new filing fees for presidential and parliamentary candidates in this year’s elections respectively.
“I need not remind you that the Constitution delineates your functions and does not vest you with the power to tax voters and candidates for elections,” he said
He blamed parliament for illegal charges by the Commission, noting, “…no self-respecting Parliament would have allowed CI 75 to pass without striking out Regulations 6 and 42.
“Be that as it may, it is beyond dispute that Parliament may not delegate its taxation power nor lawfully acquiesce to violating the Constitution,” he said.
Read the full letter below
Dear Electoral Commission Ghana:
I write to alert you that you have no power under the Ghana Constitution to impose a performance tax on candidates. It is not part of your remit to discourage so-called “non-serious” candidates anymore than it is your remit to subsidize “serious” candidates.
I am aware of Regulation 6 of CI 75, which empowers you to determine an amount of money that candidates must deposit with you subject to the refund rules of Regulation 42 of the same CI.
I am also fully aware that it is pursuant to the combined effect of those Regulations that you have decided that for the 2016 general elections a presidential candidate must deposit ₵50,000 ($12,505) while parliamentary candidates deposit ₵10,000 ($2,501).
Further, under the regulations the former gets a full refund if she gets at least 29% of the votes cast in the presidential election while the latter gets a full refund if she gets at least 12.5% of the votes cast in the constituency.
I need not remind you that the Constitution delineates your functions and does not vest you with the power to tax voters and candidates for elections. As such, no self-respecting Parliament would have allowed CI 75 to pass without striking out Regulations 6 and 42. Be that as it may, it is beyond dispute that Parliament may not delegate its taxation power nor lawfully acquiesce to violating the Constitution.
Elections are mandatory quadrennial events, which require citizens to participate as voters and/or candidates. Those who wrote the 1992 Constitution understood that democracy and good governance thrive well when citizens can fully participate in the process, unrestricted by their financial status.
They affirmed that whatever their inequalities of wealth, status, and power in the everyday activities of civil society, citizenship gives everyone the same status as peers in the political public.
This is why Chapter 7 of the Constitution stipulates that citizens have the unfettered right to vote. This right has several derivative rights, including the right to be registered, the right to participate fully and equally in the political process, the right to cast a ballot, the right for the ballot to be counted, the right for the ballot to be weighed equally, the right to run for elected office, the right to hold unelected public office, and the right to finance a candidate.
In my mind, the constitutional right to be voted for cannot be fettered by a means test. Nor is it dependent on the probability of being a successful candidate.
Your high office, with all due respect, does not come with the power to set performance standards and impose a tax on candidates who do not meet those standards.
If X is a good legislator who cannot afford the deposit and Y is a bad legislator who can afford the deposit, a system that disqualifies X cannot be democratic or functional.
Nor should your high office compel X to raise funds only for him to engage in corrupt activities, when elected, to pay his sponsors.
It is because of the forgoing reasons that I have found it necessary to have intercourse with your office on this day and to request, as a matter of urgency, that you repudiate the deposit requirement that you recently announced.