Professor S. Kwaku Asare
The New Patriotic Party (NPP) recently announced a fee schedule for its impending parliamentary primary elections, which will select parliamentary candidates for the 2012 general elections. Under the announced fee schedule, the fee to be paid depends on whether the aspirant is an incumbent member of parliament (MP) and the aspirant’s gender. Specifically, a male aspirant is assessed a penalty of ¢10,000 for contesting against an incumbent MP. The penalty for a female aspirant who competes against an incumbent MP is ¢5,000. In addition to this penalty, all male aspirants must pay a filing fee of ¢6,000 compared to female aspirants who must pays ¢3000 each. In effect, a male aspirant who competes against an incumbent MP must pay a total of ¢16,000. A female aspirant who competes against an incumbent MP must pay a total of ¢8,000. An incumbent male MP or a male aspirant running in an orphan constituency (i.e. a constituency whose current MP is not from the NPP) must pay a total of ¢6000. Lastly, an incumbent female MP or a female running in an orphan constituency must pay a total of ¢3,000. This fee schedule is (i) patently discriminatory and plainly unlawful; (ii) excessive, therefore, perpetuates the cycle of corruption; (iii) irrational because it serves no legitimate purpose; (iv) devalues women by assuming they lack the ability to raise funds; (v) and only cements, albeit mistakenly, the myth that the NPP is an anti-people, pro-elitist party.
The fee schedule, outlined above, creates four classes of citizens and is therefore discriminatory. However, the mere fact that a policy or in this case a fee schedule is discriminatory does not make it unlawful. The government and political parties make policies and set fees that discriminate all the time. For instance, different socio-economic groups face different income tax schedules. Thus, the important question is whether a particular discriminatory act is permissible under the law. The Constitution of Ghana provides a framework for answering this question.
First, under the Constitution, any discriminatory act that affects the enjoyment of a very important right is impermissible. The Constitution enumerates these important rights in Chapter 5 and labels them fundamental human rights. Second, discrimination on the basis of some specified classifications are impermissible. The specified classifications include gender, race, colour, ethnic origin and religion. The Constitution prohibits discrimination based on this classification because of the belief that members of these groups, if unprotected, are likely to be subject to discrimination with potential destabilizing impact on the Republic. Following convention, I will refer to these groups as the “suspect class.” In sum, under the Constitution any discriminatory action by government or other creatures of the Constitution, such as political parties, that interferes with the enjoyment of a fundamental right or discriminates on the basis of one of the suspect classes is putatively impermissible unless the discriminating agency can justify the discrimination on grounds of national security, public safety or public order. The limiting clause, for good reason, sets the bar so high that almost always any such discriminatory acts would probably be held unconstitutional.
Therefore, to determine whether NPP’s parliamentary fee schedule is unlawful, one has to determine whether it interferes with the enjoyment of a fundamental human right or whether the action discriminates against a suspect class. Under the Constitution, the right to freely participate in the political process is guaranteed and fundamental. Article 21 (3) states that “[A]ll citizens shall have the right and freedom to form or join political parties and to participate in political activities subject to such qualifications and laws as are necessary in a free and democratic society and are consistent with this Constitution.” The right to freely participate in the political process endows each citizen with the right to vote, the right to be voted for, the right for each vote to be weighed equally, the right for each vote cast to be counted equally, the right to unfettered political speech, and the right to peacefully assemble.
Clearly, the NPP members would be justifiably outraged if the Electoral Commissioner was to announce a fee schedule that imposed a penalty on any Presidential candidate who intends to contest against the current President. But what bars the Electoral Commissioner from setting such a discriminatory fee? It is the fact that such a discriminatory fee will run afoul of the right to freely participate in the political process that bars the Commissioner from setting such a discriminatory schedule and that protects the NPP from such actions. Similarly, the electoral commissioner is barred from setting a different fee schedule based on any classifications. But if NPP would find such an action by the government or the electoral commissioner offensive to the Constitution, why does NPP not see that it too cannot do what is impermissible for the government and the electoral commission? For the same reasons, it follows that gender discrimination in matters pertaining to participation in the political process is also impermissible both because it implicates a fundamental human right and because it triggers a suspect class analysis.
It is almost impossible to think of a good reason why the NPP wants to impose a penalty for contesting against incumbents (pro-incumbent subsidy). After all, MPs who have performed well need not fear competition. The pro-female subsidy (anti-male penalty), on the other hand, appears easier to justify because women are underrepresented in Parliament. While I too would very much want to see more female legislators, I fail to see how a pro-female subsidy addresses the problem of underrepresentation of women in Parliament. First, nobody has established that women are underrepresented in Parliament because they face hardships in paying filing fees, which was ¢500 in 2008. On the contrary, our women are very resourceful and can compete with anyone in matters of fundraising. Ironically, a policy that suggests that women seeking to become legislators are not resourceful enough to raise the filing fee is paternalistic and devalues women. We have had too many successful women in our politics, education, business, and in our lives to countenance such a poorly conceived supposition. Second, I cannot see any connection between a pro-female subsidy and primary election outcomes. That is, how does the fee schedule assure that women are elected as NPP Parliamentary candidates? Third, even if the fee schedule somehow assured that many females are elected as NPP Parliamentary candidates, how does that assure that they are elected to Parliament? The outcome of the parliamentary race is going to be decided in a contest among NPP candidates and candidates from other political parties and the discriminatory fee schedule only remotely, if at all, can affect this contest. It will seem that the optimal strategy for NPP is to elect the best men and women from each constituency to enter this competition. Because the pro-female subsidy is not logically related to the outcome sought, I find the subsidy to be irrational.
The fee schedule is excessive and is not calibrated to the average earning power of citizens in the country. Very few people in the country can legitimately raise that fee within the one month window for filing nominations. As I recall, the filing fee in 2008 was ¢500. What is the justification for this astronomical increase in filing fee in 4 years? By way of comparison, the average expenditure of a parliamentary candidate in UK’s 2010 general election was a mere ?6,259 (see this link http://www.electoralcommission.org.uk/party-finance/party-finance-analysis/campaign-expenditure/uk-parliamentary-general-election-campaign-expenditure3), much less than the NPP filing fee alone. It is important for NPP and all stakeholders to keep in mind that excessive fees are a formidable barrier to fair participation in the political process and can derail our democratic train.
Quite apart from the ballot access problems posed by the excessive fees, I also believe that the fees perpetuate the needless, endless and vicious cycle of corruption that has engulfed our politics. In private communications, one MP who was justifying the fee schedule argued that “anyone who aspires to stand on the Party’s ticket cannot expect somebody else to finance them. It is an investment that can potentially yield good returns for him/her. It is a matter of rational self interest.” Alas, NPP’s excessive fee schedule do very little to get rid of such MPs and their bankrupt view of politics. Rather, it appears to me that by its fee schedule, the NPP seems to be extracting a down payment from the aspirants in anticipation of the positive return on their investment. It is not surprising that delegates who vote at the primaries have little interest in hearing ideas, choosing to extract whatever rents they can get from the aspirants. I am reliably informed that some aspirants spend as much as $200,000 campaigning for parliamentary seats, with most of that expenditure going into side payments to delegates and voters. As one delegate confided in me, “it is our cocoa season.” What does one expect from an MP who goes into public office having paid rents to the party, delegates and to voters? This is not a sustainable democratic model. The madness must end!
Finally, the excessive fee schedule is not a winning political strategy. The objectives of the fee schedule are not likely to be realized for the simple reason that the demand to run as an NPP Parliamentary candidate is very elastic. Good NPP candidates who cannot get ballot access because of the fee will simply run as independent candidates. Moreover, the excessive fee will only galvanize opposition to incumbents. That politics is a game of inclusion and not of exclusion is a lesson that we should have learnt from 2008. Rightly or wrongly, NPP is perceived as an elitist party that is only interested in riding the back of the masses to political power. Of course, this perception is inaccurate as evidenced by pro-people NPP policies such as the NHIS and the Capitation Grant. But let us not think that our economic policies are the criterion that will define us.
The NPP 2012 Parliamentary fee structure is excessive, discriminatory, unlawful, and cements the myth that this great party is an anti-people, pro-elitist party. I challenge the leaders to set aside the fee schedule and come out with a reasonable non-discriminatory fee schedule.