Draft Bill On Political Parties (III)

Ghana's political parties will not be entitled to any cash subsidies from the State under the proposed Political Parties Bill. By withholding budgetary support for political parties, the Bill, in effect, compels political parties to depend exclusively on private sources of finance.

But, not all private sources of cash are permissible. Section 24 of the proposed law will prohibit any person who is not a citizen of Ghana from making a "contribution" to a political party. This provision is, of course, a restatement of Article 55, Clause 15, of the Constitution, which states that, "Only a citizen of Ghana may make a contribution or donation to a political party registered in Ghana." (As noted earlier, more clarity is needed in the Political Parties Bill as to what constitutes a "contribution".)

NOT ALL CITIZENS SHOULD BE ALLOWED TO MAKE PARTISAN CONTRIBUTIONS

The fact that non-citizens are barred constitutionally from making contributions to a political party does not mean, however, that every citizen of Ghana should be allowed to make political contributions or that it would be wrong or unconstitutional to disallow certain categories of citizens from making such contributions. Article 55, Clause 15, says only that every person who contributes to a political party must be a citizen of Ghana; it does not say that every citizen of Ghana must be allowed to make a contribution to a political party.

What this means is that, if there are compelling reasons to justify an exclusions, certain categories of Ghanaians may be barred by law from contributing to a political party without offending the Constitution. As currently drafted, however, the Political Parties Bill seems to adopt the position, implicitly, that every Ghanaian citizen is free to make a contribution to a political party.

On its face, such a position appears fair. However, there are compelling public interest, even constitutional, reasons why certain categories of citizens should not be allowed to make a contribution to a political party. For instance, members of the Electoral Commission, the Judiciary, the Armed Forces and CHRAJ, all of whose positions require a significant degree of detachment from partisan politics, should be precluded from making a contribution to any political party.

Also, since the Constitution precludes chiefs from participating in partisan politics, they should similarly be precluded from making a contribution to any political party.

Lastly, in the interest of checking the canker of corruption that has plagued the award of public contracts, the list of citizens who may not be allowed to contribute to political parties should include those who do, or seek to do, significant business with the government as contractors or suppliers. Political contributions from such persons are little more than bribes or extortion-money paid to secure or retain often-undeserved contracts from the State.

The cost of such contributions are inevitably added to the price of the contract or else included on the books of the contractor as tax-deductible expenses, thereby shifting all or part of the cost ultimately to the taxpayer. In short, holders of independent public offices, chiefs and contractors should be barred from contributing to the finances of a political party, whether in cash or in kind.

CONTRIBUTION BY COMPANIES?

Still on the issue of party financing, Section 25 of the proposed bill will allow a C4 company, partnership, firm or business enterprise" that is "legally registered or established under a law in Ghana" to contribute an unlimited amount of cash or other inkind donation to a political party. This provision is problematic for a number of reasons.

First, if our past or present experience is any indication, this provision will subject the Ghanaian corporate and entrepreneurial sector to needless political extortion and blackmail, especially at the hands of an incumbent party. Businesses that refuse or fail to "pay up" will likely be denied access to public contracts and other government-administered benefits for which they may otherwise be eligible. This, in turn, could distort competition in the private sector by making business success dependent less on corporate efficiencies and competencies and more on political connections and affiliations.

Secondly, the aforementioned provision of the Political Parties Bill will allow foreign-owned companies that are also registered under Ghanaian law to make contributions to political parties in Ghana. This obviously subverts the spirit of the provision in the Constitution barring non-citizens from contributing to political parties. In addition, because foreign companies are generally richer than their Ghanaian counterparts, allowing them to contribute financially to Ghana's political parties could unfairly disadvantage Ghanaian businesses that are in competition locally with such foreign companies. This is especially so since contributions from such foreign-controlled businesses would go predictably to the party in power.

CORPORATE CONTRIBUTIONS ARE UNCONSTITUTIONAL

The most significant objection to Section 25 of the proposed bill, however, is that political contributions by business entities (all business entities) are not permitted by the Constitution. As noted previously, Article 55(15) of the Constitution is emphatic that "only a citizen of Ghana" can make a contribution to a political party in Ghana. Is a business enterprise registered in Ghana a "citizen" of Ghana by law? The simple answer is "No".

Legally speaking, a business entity may be an "artificial person," which means that it may be able to enter into contracts, own property, enjoy certain legal rights and assume legal obligations as if it were a "natural person" (that is, like a human being). But, the term "citizen" covers only natural persons. That much is obvious from the citizenship provisions contained in Chapter 3 of the Constitution.

Since business entities can only be artificial persons (at best), and since artificial persons are not "citizens" by law, Section 25 of the proposed Bill is plainly inconsistent with Article 55, Clause 15, of the Constitution. In short, corporate contributions, whether from Ghana-owned businesses or from foreign- controlled businesses registered in Ghana, would be a clear violation of the Constitution. What this means is that Ghana's political parties must, in the end, depend exclusively on contributions from individual Ghanaian voters to finance their activities.

This result is eminently democratic because by precluding nonvoting entities (i.e., businesses and foreign nationals) from bankrolling political parties it prevents entities that do not have a vote from nevertheless using their money to distort the electoral process. More importantly, it makes Ghanaian voters the sole source not only of a party's electoral strength, but also of its financial strength. That, after all, is what popular sovereignty must be about.

In the last and final instalment of this article, we shall examine the enforcement provisions of the Political Parties Bill and why enforcement of any law regulating and affairs of political parties must be left in the hands of the Electoral Commission, instead of the Attorney-General.