Filing Fee Saga: Open Letter To EC Chairperson

Dear Chairman Mensa:

Congratulations on completing the voters’ registration exercise during a very challenging period. I am writing today to ask you to reconsider and rescind your recently announced filing fees for the impending elections. I do so on several grounds and will highlight a few here.

First, while it is called a filing fee, in actual fact it is a fine imposed on political parties and independent candidates who do not meet a certain threshold in the general elections. Since the threshold is set arbitrarily high (obtain over 10% percent of the valid votes cast in both Parliamentary and Presidential elections), the primary, if not the sole, effect of the fine is to penalize the smaller parties and the independent candidates. Put differently, the achieved, if not intended, effect of the fine is to promote and perpetuate the well-known political duopoly.

This is unnecessary, quite apart from being unlawful. All the Political Parties are registered under the law. As part of that registration, several burdens are imposed on them. For instance, their internal organization must conform to democratic principles; their national executive must be regionally balanced; they must have branches in all the regions; they must be organized in not less than two-thirds of the districts in each region; they must have a founding member in each district; they must publish audited financial statements; etc.

In return for this burden, they have a constitutional guarantee to participate fully and equally in all elections. Furthermore, it is a crime for any person to suppress their lawful political activities, including denying them access to the ballot.

Your website lists over 20 Parties that have met the registration burden and the case for imposing a fine on them for doing what you have registered them to do escapes me completely. If, in your estimation, some of them are not meeting the registration requirements then the proper action is to delist them, not impose a penalty on them for participating in the general elections. In my opinion, this back-end and veiled attempt to limit their access to the ballot is a frontal assault on the Constitution and the Political Parties Law.

I must add that the small parties’ value proposition to the political process should not be measured by the number of votes they are able to garner in the general elections. These Parties bring to the public square issues that are important to their membership and allow such issues to be taken into account whether or not they are successful in the general elections. When they are denied access to the ballot, they are also denied the opportunity to raise these issues that are important to their membership.

What is true of the Political Parties is also true of independent candidates. The Commission imposes several burdens on them, including being nominated by voters in each district. Under the Constitution, nobody is compelled to join a Political Party. Thus, weeding out independent candidates, as this fine is intended to do or does, is an indirect way to compel them to join a major Political Party.

In effect, both political parties and independent candidates have to meet a high lawful burden, which assures their “seriousness” and guarantees their access to the ballot. The imposition of penalty, styled as filing fees, on some election candidates is therefore a suppression of lawful political activity and is per se unconstitutional.

As far as I know, the Commission is fully funded to manage elections. I am unaware of any laws, supporting the charging of the filing fees. Nor have I seen any evidence that the announced filing fees comply with the Fee and Charges Act (Act 983). What I also know is that the Commission is entitled to charge a registration fee under the Political Parties Law. It remains unclear to me why your fully funded Commission will want to dabble in fees and fines. Why not focus on the core mission, which incidentally includes assuring financial transparency by the Political Parties?

To be sure, this is not the first time a fee has been imposed. It has always been with us, but it has always been a token amount. For instance, the Presidential Filing Fee was set at ₵500 for the first general election under the 4th Constitution. It remained so for 4 election cycles. The Commission then understood the importance of not impeding access to the ballot and it will serve the Commission well if it returns to those good old days.

The argument that the economy has undergone some shocks that justify the announced filing fees is not availing to the Commission because the taxpayers underwrite the full expenses of the Commission, taking into account the current economic conditions.

I am, of course, unimpressed by those who argue that a serious candidate should be able to raise the ₵100,000 filing fee. The issue here has nothing to do with fundraising skills. On the contrary, I question the seriousness of candidates who handover that amount to the Commission without interrogating the constitutional and legal significance of the transfer. If they won’t fight for what they have fundraised, why should I expect them to be a good steward of the public purse? If they cannot protect their own right to access the ballot, why should we expect them to protect our other rights?

Commissioner Mensa, money is becoming too important in our politics. It is corrupting our democracy and as it does so, our institutions become weaker and less able to control corruption. In the not too distant future, we will achieve our hearts’ desire and elect a bona fide rich criminal to run our affairs. The Commission must be on the side of perfecting, not corrupting, our democracy.

I am equally distressed by the Commission’s insistence on charging the Political Parties to organize their primaries. This charge and the impugned filing fees go to increase the cost of elections, which of course, ends up with elected candidates who are more interested in recouping their investments than in public service. There is no rational basis for fining people for wanting to do Public Service!

We must always keep in mind that the requirements to be an election candidate are directly linked with the exercise of the right to vote and to be voted for. Putting forward candidates enables voters to choose and, at the same time, it permits citizens interested in access to elected office to be elected. Putting monetary barriers on ballot access therefore interferes with the right to vote.

It is utterly important that the Commission understands its role as that of a neutral election management body. Your job must always be to act as an umpire whose actions do not penalize or advantage any of the players. Even the slightest hint of favoring some of the parties does damage to the Commission’s reputation. It is worst if the favoring contributed to corrupting our democracy.

It is based on the preceding grounds that I humbly suggest that you throw some light on the legal basis for imposing this discriminatory fine and rescind same.

Warms Regards, Naa Adukwei.

Truly Yours,

Prof. S. Kwaku Asare