Feature Article of Sunday, 26 October 2008
Columnist: Agyenim Boateng
By: Agyenim Boateng, Frankfort, Kentucky
This article is inspired by recent series of a articles authored by Mr. Kofi Boateng of New York City and Lawyer Georgette Djaba of London in which the authors eloquently argue, among others, that due to misreading or misinterpretation of certain provisions of 1992 Ghana’s Constitution, Ghanaians by birth who have also acquired the nationalities or citizenship of other countries (Dual Citizens) are being unjustly discriminated against . Evidence is rife about recent individuals either being denied appointments as deputy ministers and or were literally “forced” to renounce their acquired citizenship before allowed to run for Parliament in the country of their birth. There are thirteen listed top positions of the country’s public service which are denied to dual citizens, according to the Dual Citizenship Law of 2000 and a companion Regulation of 2001. While this article intensifies the debate on the topic its primary focus is to draw the attention of the policy makers and the Ghanain public both at home and abroad (GLA’s), one important aspect of the debate that has not being mentioned; the question of human right violations. Ghana as a champion of human rights for Africans and oppressed black people everywhere, from independence to 50 years of post colonial experience needs to clean its own house by wiping away any semblance or perception of discrimination against all of its citizens be they local residents or those with dual nationality (GLAs). Understanding the Constitution
The Constitution as the bedrock of constitutional democratic governance, according to a well known American jurist, is not self executing but its sustainability is based upon the collective effort of all stakeholders in investing, nurturing as well as utilizing the wisdom of its judicial interpreters the common sense of its people and as well as the pragmatism of the legislators, all playing the role to shape the form and content of the constitution for the present and future generations. In this sense all citizens are morally mandated to read and follow carefully its original meaning as the framers of the constitution intended rather than follow what our intuition or fancy calls for. In my opinion, a quick perusal of the various arguments being used by the opponents of dual citizenship debate may be their reading of the constitution that patently reveal flaws in their perception or understanding they assign to the meaning of the constitution. The present 1992 Constitution was inspired by and written during the time when the country was under a pseudo military rule of PNDC. At the completion of the draft by the Constituent Assembly, people were not given adequate time to study or debate the textual contents of the draft constitution in consequence of which it was hurriedly rushed to a referendum with its glaring inconsistencies in parts of the body of the constitution for approval. Even though Article 1 (2) and Transitional Provision clause of Article 30 authorized the President and Parliament to void any inconsistencies within one year of assumption of office so far, nothing has been done.
One remarkable development following the adoption, of the constitution through a referendum and immediately before the 1992 general elections, was the adoption by the PNDC regime PNDC Law PNDC/L284 ostensibly to whittle down the rights of some Ghanaians over 19 years of age the right to vote contrary to the provisions of Article 42 of the Constitution.
The PNDC/L 284 contained two specific features: One was the six month (6) residency requirement for all eligible voters in their various constituencies for registration, and , the other was a special carving out a provisions for Ghanaian diplomats, soldiers serving under U.N. command and government officials who could vote from their foreign based residency. The rest of Ghanaians living abroad (GLAs) who could not relocate to their constituency for six months were left out in the voting equation. In essence over two (2) million overseas Ghanaians were disenfranchised by the PNDC Law 284. This law was finally amended in 2005 by Parliament with ROPAA law 596 amidst a virulent protestation by the country largest opposition party (NDC) in Parliament. Getting to the terminal phase of the NDC government rule in 2000 a bill creating Dual Citizenship for Ghanaians who held citizenship of other countries was passed by Parliament. In 2001 the NPP government adopted the necessary legislative instrument or regulations Act 591 to enforce the dual citizenship law. It must be noted that no Diasporan community views were sought for during the debate on the Bills in Parliament, yet they hailed the law as a ground breaking legislation to incorporate them into the mainstream of citizenship. However, when the dust of euphoria settled down, and the textual content of the law was closely examined it was found out that the law in essence created second class citizenship status for Diasporans.
Dual Citizenship Act 2001
The Dual Citizenship Law, in essence, discriminates and denies dual citizen Ghanaians their equal opportunity or access to public and elective offices as guaranteed to all citizens of Ghana by the Constitution. The following questions emerge as one ponders over the Dual Citizenship law: Was it the intent of the Parliament to create two classes of citizenship? On one hand, a class which is entitled to all the privileges and immunities the constitution grants to all citizenship and, the other hand , a special class of citizenry who can only vote in an election and be issued with a citizenship certificate and a Ghanaian passport? What happened to the equal rights and protection the constitution (Article 17) grants to all citizens? What is the benefit of voting if the same citizens can not run for an elective office or contribute to the manpower development and capacity building by joining the country’s public service due to the fact he or she is a dual or second class citizen? The amendment to P/NDC law 284 by Parliament and the passage of ROPAA, ACT 699, 2006 ( not implemented yet) theoretically leveled the playing field as far as voting rights are concerned. The one issue left sticking out like a sore thumb is the constitutional mandated discrimination against diasporas in terms of access to public service and running for Parliament as found under Article 94 (1) and (2) of the Constitution which is also reflected in the 2001 Dual Citizenship Act 591, Article 16(1) respectively.
Let us now look at the relevant article of the Constitution which is reflected in the Dual Citizenship Act. Under Article 94(2) a citizen of Ghana who holds citizenship of another country is prohibited from running for Parliament. Under Section 16 (1) of the Dual Citizenship act of 2001 Act citizen of Ghana may hold the citizenship of any other country in addition to his citizenship of Ghana. However, the same statue ironically prohibits the citizen from being appointed to any position in the country’s public services. Here are the details of the Article. To wit
Without prejudice to Article (94 (2) (a) of the Constitution, no citizen of Ghana shall qualify to be appointed as a holder of any office specified in this subsection if he hold the citizenship of any country in addition to his citizenship.
(a) Chief Justice and Justice of the Supreme Court
(b) Ambassador or High Commissioner
(c) Secretary to the Cabinet
(d) Chief of Defense Staff or any Service Chief
(e) Inspector General of Police
(f) Commissioner, custom, Excise and Preventive Service
(g) Director Immigration Service
(h) Commissioner, Value Added Tax Service
(I) Director0 General, Prison Service
(j) Chief Fire Officer
(k) Chief Director of Ministry
(l) The rank of Colonel in the Army or its equivalent in the security services, and Any other public office the security services, and Any other public office the Minister may by legislative instrument prescribe.”
Human Rights violations
How do these provisions and their implementation affect the rights of dual citizens Ghanaian as equal citizens of a country? Its implementation make overseas resident Ghanaian as second class citizens not withstanding the remedial effect of ROPAA in giving them equal say so in the election of the members of their representative government. Further, it may also be argued that Parliament by creating such statutory prohibition (Act 591) against the rights of Diasporans from accessing the country’s public service was unlawfully intruding into the constitutional rights of the citizens, as it did by the passage of Public law 284 as amended by ROPAA. The courts in the American jurisdiction have held that the legislature cannot go beyond the area of constitutional protected rights. When it attempts to do so, it is in violation of the rights preserved to her citizens under. The American Courts stated that the legislatures have their sacred duty to protect citizens against unlawful legislative intrusion upon their constitutional rights along line of case., including Happy v. Erwin, KY 330 S. W2d 412, 2959, Saylor v. Hall Ky., 497 SW2d 218 (1973) and Cound v. O’Bannon, Ky 770 S. W 2d 220 (1989). Thus, the Dual Citizenship Act is a classic example of such legislative intrusion into the civil liberties as well as human rights of GLA’s.
Again, one may ask how these statutory and constitutional schemes against Diasporas adversely impact on the demands of UN treaties on Human Rights and Ghana’s own Constitution? In other words, what is Ghana’s obligation towards her overseas citizens under both 1992 Constitution and the various international treaties which Ghana has signed as a member? No doubt, there are human right violations if one examines the aforesaid carefully within the parameters of the inconsistencies of what the constitution actually says, the action of the policy makers and the mandate of UN treaties on human rights. Article 40 of Ghana Constitution mandates the Government of Ghana to adhere to the principles, or ideals and objectives of the principles embodied in all treaties, charters and conventions which Ghana is signatory. Therefore looking at various international treaties and conventions such as :the UN Declaration of Human Rights Articles 7, 21, and 30., UN Covenant on Civil and Political Rights, Articles 2, 25 and 26; UN Millennium Declaration Clause 5 and the African Union Declaration one finds a positive of the law. It also, among others, enjoins all governments to allow all citizens and are entitled without any discrimination to the equal protection of the law. It also, among others, enjoins all governments to allow all citizens the right to participate in the government and the public service and the enjoyment to tap on much ignored resource and human development of all its citizens is encouraged in view of the challenges and demands of globalization. For Ghana to survive in the 21st century she is obligated to utilize all her resources. This must also include its human capital in talents, skills, and experiences of all her citizens the various treaties UN and African Union have promulgated Nigeria’s experience
Again, drawing from the lesson of Ghana’s closest traditional neighbor Nigeria, her Constitution provides vivid contrast to that of Ghana on the definition or concept of citizenship. Nigeria does not wrestle with this problem of dual citizenship in as much as Ghana does. According to the Nigerian Constitution Article 25 (1) defines citizenship as Nigerian by birth, registration or naturalization. Under said article Nigerian Nigerian by birth has a pre eminent rights which cannot be abrogated if he even if he has other nationalities. Unlike Ghana which lumps all its categories of citizenship ( by birth, registration or naturalizations) together , a citizen of Nigeria who comes within the ambit of Article 25(1) enjoys all the privileges and immunities available to all citizens. These include running for any political office including President of the country, Governors, State, and Federal Parliament or be appointed to any of the higher offices in the Judiciary of Executive branch of government. The principle was reaffirmed by the Federal High Court of Nigeria In Re: Prof Isa Oddi Feb14, 07. See also Ogbeida Osula 12 November 12 856 which held that an attempt to deny a Nigerians by birth who are dual citizens , by the National Electoral Commissioner, the right to run for Presidency and vice Presidency of the Federal Republic was unconstitutional. However, Ghanaian by birth has no such recourse, he loses his citizenship “fort with” as soon as he takes on another nationality. It must be noted that the Dual citizenship Act 591 allows Ghanain to hold another nationality but still denies him the right to run for an elective office or be appointed to a higher public office. How does one reconcile these two inconsistent positions?
The framers of Nigerian constitution obviously felt that one cannot stop being a Nigeria because he is accorded a citizenship of another country in addition to his Nigerian citizenship. Nigeria and Ghana evolved from a similar colonial background and checkered post independent political history. However, Nigeria has prudently not jettisoned her overseas citizens but incorporated them into the main stream in order to tap all her human resources necessary for socio- politico and economic development of their countries. Therefore, what is the rational basis or compelling interest of the state for Ghana to deny equal rights or opportunity to her citizens who are also Ghanaian but hold citizenship of another country? The modern trends and practice in U.S., UK, South Korea, Mexico, Dominican republic, Canada and others is to allow their nationals to hold citizenship elsewhere without losing their original nationality. Therefore, Ghana must wake up to follow the civilized trend. The remedy for such unnecessary discrimination is for Diasporans to seek a declarative relief from the Supreme Court to declare those laws as unconstitutional. Alternatively for Parliament to pass a constitutional amendment to repeal those laws which are inimical to equality of citizenship. Based upon the experience and history of the passage of ROPAA, current Parliament may not have the political will to tackle such sensitive subject. Therefore, the Supreme Court is the logical and practical branch of government to resolve these crucial civil rights issues. It is anticipated that the next government , hopefully, to be headed by NPP’s Nana Addo Dankwa Akufo Addo will make the Dual Citizenship issue among his top legislative agenda to be enacted within 180 days after his assumption of the presidency.
In conclusion, the exclusion and discriminatory practice against Dual Citizens Ghanaians, as stated in Article 16 of the Dual Citizenship Act is grounded upon the misreading of the inconsistent clauses of the Constitution. Article (94(2) undermines the spirit of ROPAA where by a dual citizen can vote but cannot run for elective office such as Parliament.
The letter and spirit of the afore named provisions are inconsistent with our vision of developing a free market, constitutional democratic state. It is also inconsistent with the country’s attempt to addressing the problem of brain drainage by reversing it to brain gain. This is not a deed for pedestrian or academic arguments. The philosophy of public service is a time honored opportunity to serve the people. Our political leaders should exercise the courage, to smoothen the rough edges of our political system and level the playing field for all Ghanaians to serve the dear country.
Ghana has evolved from a past history of colonialism, one party dictatorship, military and pseudo military rules where by the rights of the citizenry were ignored or trampled upon. We are in the new era of democratic governance and challenges of globalization. Therefore, the civil and human rights principles should under gird the country’s attempt for the future political and economic development. The former Soviet Union attempt to by pass such principles in their political and economic development ended in its implosion. Their experience should be an eye opener to Ghanaians and policy makers.
By: Dr. Agyenim Boateng
Deputy Attorney General Kentucky, USA Member of G-CAG
You are invited to support a non-partisan group, Ghana Citizens Advocacy Group (G-CAG), that will be fighting for the interest of Ghanaians Living abroad (GLA’s). You may contact and join your local British Group e-mail:[email protected] or USA group: email: [email protected] for further details