Elections

EC’s new filing fees unconstitutional – Prof. Kweku Asare

A Ghanaian Law Professor based in the United States is asking political parties to challenge in court the 2016 presidential and parliamentary filing fees announced by the Electoral Commission.

Professor Stephen Kweku Asare, says the EC, should not be allowed to violate the constitution by imposing “performance tax” on candidates in the name of filing fees.

The EC with three months to go for the crucial 2016 elections announced a GHC50,000 and GHC10,000 filing fees for presidential and parliamentary aspirants respectively.

Per CI 75, the presidential aspirants get a full refund if they get at least 29% of the votes cast in the presidential election while the parliamentary aspirants get a full refund if they get at least 12.5% of the votes cast in the constituency.

Even though the EC has not officially explained the sharp rise in the filing fees, it has been suggested, that the fees are to discourage people, who for the fun of it, would contest the positions without any gravitas.

The announcement of the fees have left some candidates heartbroken with a near possibility of many filing out of the contest.

Some of the parties, including the PNC and CPP have roundly condemned the fees describing it as an attempt by the EC to sell the presidency and house of Parliament to the highest bidders.

Rather than criticizing the EC in the media, Prof Stephen Kweku Asare, would rather have the parties take the matter up in court.

In a Facebook post, the University of Florida lecturer said by insisting on this exorbitant fees, the EC, is violating sections of the constitution which give every Ghanaian the right to vote and be voted for without being financially restricted.

“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,” he stated.

He said the EC has “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.”

Prof Asare, popularly referred to as Kweku Azar, chided Parliament for sleeping on the job and allowing Regulations 6 and 42 to be passed as part of CI 75.

It is based on these regulations that the EC announced the new filing fees. But Kweku Azar says the EC must drop the deposit requirement it has imposed on the aspirants.

The following is the full Facebook post

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 GHC50,000 ($12,505) while parliamentary candidates deposit GHC10,000 ($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.

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