Political parties question the legality of electoral commissioner’s decision

5 August 2012

The decision of Sierra Leone’s electoral commissioner to increase the nomination fees for candidates contesting the forthcoming local, paramount chief and presidential elections, has been criticised by all political parties, with the exception of the ruling APC.

In a joint communiqué signed by most of the opposition parties in the country, the legal and constitutional basis of the commissioner’s decision was called into question.

This is what the communiqués says:

“At a joint meeting of eight of the leading opposition parties at the PPRC Secretariat, on Friday 3rd August 2012, representatives of the SLPP, PMDC, NDA, UNPP, PDP, CDP, UDM and PLP roundly condemned the recent increment of Nomination Fees announced by the National Electoral Commission (NEC) on Monday 30th July 2012, as unconscionable, exorbitant and bear no connection with the present deplorable state of our economy and the grinding poverty that is apparent throughout the country.

Even more amazing is the fact that Sierra Leone where the least paid of West Africans are resident, is attempting to impose the highest Nomination Fee for both Presidential and Parliamentary Candidates for elections in the ECOWAS region.

Moreover, contrary to the categorical statement made by the Chairperson of NEC, the Fee she announced bears no resemblance to international best practice.

In the West African region for example Ghana has nomination fee of Cedis 500 (US$ 300) for Parliamentary and Cedis 5,000 (US$ 3,000) for Presidential.

In the Gambia the nomination fee for Presidential Candidates is Dalasi 10,000 (US$333) and Dalasi 500 (US$17) for Parliamentary, for Mayoral candidates and Chairmen of Local Councils, the Nomination Fee is Dalasi 3,500 (US$117) and for Councillors Dalasi 1,250 (US$ 42).

In Liberia the Nomination Fee is US$ 2,500 for Presidential Candidates, US$1,500 for Vice Presidential Candidate, US$750 for Senators and US$500 for Members of the House of Representatives.

In Nigeria the Independent National Electoral Commission (INEC) charges no Nomination Fee though an internal fee is levied by some political parties.

Outside of West Africa the United Kingdom charges the equivalent of US$750 as Nomination Fee for Parliamentary candidates while in Federal United States Nomination Fee for Senators stands at US$ 3,480 while Congressmen pay a mere US$1,740.

These are the fees paid by candidates for elections in two of the world’s greatest democracies and best performing economies.

The Nomination Fee announced by the National Electoral Commission has no legal force under the laws of Sierra Leone.

The power to prescribe Nomination Fee is vested in Parliament as evidenced in sections 45 (5) and 31 (1) of the Electoral Laws Act 2002.

As seen in those provisions of that Act, it was Parliament that prescribed the Nomination Fee and this was done by way of express provisions in the sections referred to above.

Under those sections the Nomination Fee for Presidential elections was stipulated to be Le.1, 000,000 whilst that for Members of Parliament was specified as Le.100, 000.

The question now is: under the new Public Elections Act 2012, in whom is the power to prescribe such fee vested? The answer is unclear.

Under sections 46 (1) and 60 (5) of the said Act, a candidate whether for the Presidency or for Parliament is not entitled to participate in the elections unless he has paid “a non refundable election fee of such amount as may be prescribed”.

The Act does not identify the authority that has the power to prescribe such fee.

Compared to the 2002 Act, Parliament was the authority that prescribed the fee. That Act has since been repealed by the 2012 Act.

So therefore, the fee that prevailed under the 2002 Act no longer applies.

In the circumstances, there are no new fees prescribed in the Public Elections Act 2012 and there is no express delegation of authority to NEC to prescribe such fees.

By the same token, by the Public Elections Act 2012, repealing the Electoral Laws Act 2002 in section 168 thereof, the old Nomination Fees of Le. 1,000,000 for Presidential candidates and Le.100, 000 for Parliamentary candidates are no longer valid.

Consequently it is our view that there is a lacuna in the law insofar as the prescription of Nomination Fee is concerned.

Only Parliament can now remedy this lacuna by enacting a new amendment of the Public Elections Act 2012 and by following the hallowed practice of prescribing the Nomination Fee in the body of the legislation; it is too great a power to be vested in a subordinate body.

Such express provisions in the enabling legislation are also the sub-region’s best practice.

We therefore unanimously resolve as follows:

• That in view of the prevailing economic hardship in the country and in order to preserve and uphold our fragile democracy we call on NEC and Government to cancel the present increment announced on 30thJuly 2012 and to revert to the prescribed Nomination Fees contained in the 2002 Electoral Laws Act.

• We equally call on our Legislators to annul any Statutory Instrument laid before Parliament that seek to ratify the increment announced by NEC.

• We also call on the International Donor Community and Civil Society Organizations to exact pressure on NEC to reconsider their proposal in view of both our nascent democracy and to promote wider political participation.”

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