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Feature Article of Thursday, 16 August 2012

Columnist: Asare, Kwaku S.

Judge Quist aids in the Persecution of MP for Bawku

In “Travesty of Justice” and “Comedy of Errors,” Judge Quist aids in the Persecution of Adamu Sakande, MP for Bawku

By S. Kwaku Asare

In 2008, Adamu Sakande left his family in the United Kingdom and returned to Ghana to serve his country and his people. He contested the Bawku Central Parliamentary seat and resoundingly defeated Mahama Ayariga (53.4% to 46.1%), the then incumbent NDC Member of Parliament (MP).

The Bawku Central constituency is the home of some of the most sophisticated voters in the country. Since the inception of the 4th Republic, they have voted for an independent (Hawa Yakubu, 1992), NDC (Fati Seidu in 1996 and Mahama Ayariga in 2004) and NPP (Hawa Yakubu in 2000 and Adamu Sakande in 2008) candidates. It is reasonable to assume that these voters know how to screen their candidates and that their decisions must be respected by all, including defeated candidates and the courts. But something disturbing and terrifying happened after the 2008 elections: the government abused its prosecutorial powers and brought criminal charges against Adamu Sakande. The essence of the government’s case is that Adamu Sakande is not a Ghanaian and by offering himself for an election, he had violated sections 248 (making false declaration for officer or voting), 251 (deceiving a public officer) and 210 (perjury) of the criminal code. The offences in sections 248 and 251 are misdemeanors while perjury is a second degree felony.

According to Section 211, “a person is guilty of perjury, if in any written or verbal statement made or verified by him upon oath before any Court, or public officer, or before the President or any Committee thereof he states anything which he knows to be false in a material particular, or which he has no reason to believe to be true.

In other words, one is not guilty of perjury merely by making a statement that is proven to be false. One has to also know that the statement one is making is false. Similarly, both sections 248 and 251 require an accused person to know that a declaration is false before he can fall afoul of the law. This case, however, is not about whether Adamu Sakande unknowingly declared that he is Ghanaian. He is, indeed, a Ghanaian, born to Ghanaian parents and a product of Bawku secondary school. Bawku resident will quickly and easily attest to his being a Ghanaian and I am reliably informed that he is even related to Mahama Ayariga, the defeated NDC candidate.

What then is the Government’s evidence that proves beyond reasonable doubt that Adamu Sakande is not a Ghanaian and, if indeed, he is not a Ghanaian, he knows that he is not a Ghanaian?

According to Judge Quist, “the prosecution had been able to establish that the MP was not a Ghanaian but a Burkinabe who was using a British passport.” The Judge noted that “the MP had applied in the United Kingdom as a refugee and wondered how a Ghanaian who was then in the UK could seek an entry visa before coming entering Ghana.” Judge Quist notes that “the MP could not convince the court over the assertion that he was not a British national as his documents produced before the court to debunk prosecution’s case was not authenticated or stamped. For example, the court noted that Daramani did not produce his birth or baptismal certificates to buttress his case.” The Judge further raised questions “pertaining to different names used by Daramani over his Ordinary and Advance Certificates which bore the names Andy Adamu Daramani and Adamu Sakande.” In effect, the Judge relies on the MP’s possession of Burkinabe travel documents, British passports, visa to Ghana, use of different names and failure to produce birth or baptismal certificate to conclude that the MP is not a Ghanaian.

With due respect to Judge Quist, none of these facts, individually or cumulatively, establish that the MP is not a Ghanaian (and knew that he was not a Ghanaian). It is easy to see why by referring to the definition of a Ghanaian in our citizenship laws. According to the Constitution,

(1) Every person who, on the coming into force of the 1992 Constitution, is a citizen of Ghana by law shall continue to be a citizen of Ghana.

(2) a person born in or outside Ghana after the coming into force of the 1992 Constitution, shall become a citizen of Ghana at the date of his birth if either of his parents or grandparents is or was a citizen of Ghana.

(3) A child of not more than seven years of age found in Ghana whose parents are not know shall be presumed to be a citizen of Ghana by birth.

(4) A child of not more than sixteen years of age neither of whose parents is a citizen of Ghana who is adopted by a citizen of Ghana shall, by virtue of the adoption, be a citizen of Ghana.

Thus, having alleged that Adamu Sakande was not a Ghanaian (and knew that he was not a Ghanaian), the proper burden of the prosecution was to prove beyond reasonable doubt that Adamu did not fit under any of the 4 criteria stipulated above. Since the prosecution failed to provide any evidence on these matters, the Judge should have dismissed all charges without requiring Adamu to open his defense. That is Adamu could be a Ghanaian and still have different names, a Burkinabe travel document, a British passport, and an entry visa to Ghana. Judge Quist also waded in on matters that should have been deferred to the Supreme Court. According to the Judge, “a person who has dual citizenship could not contest an election at the level of a Member of Parliament.” The Judge is probably relying on Article 94(2)(a), which provides that “A person shall not be qualified to be a member of Parliament if he owes allegiance to a country other than Ghana.”

There is a vast difference between “owing allegiance to a country other than Ghana” and being a dual citizen. Dual allegiance is a state of a person’s mind, characterized by simultaneous loyalty to two or more countries. Dual citizenship, on the other hand, arises as a result of a concurrent application of the different laws of two or more countries. A single citizen can owe dual allegiance. For instance, you do not have to be a citizen of USA to join the USA military. However, those joining the USA army affirm an allegiance to the USA. Thus, a Ghanaian who is a permanent resident in the USA and in the USA military will have dual allegiance without being a dual citizen.

On the other hand, one could be a dual citizen and not even know that one is dual citizen, let alone owe dual allegiance. For instance, a child born to a Ghanaian parent in USA is a dual citizen involuntarily. This happens because Ghana’s citizenship laws are rooted in the doctrine of jus sanguinis (right of blood) while the USA’s laws are rooted in the doctrine of jus soli (right of soil). This child may grow up in Ghana, unaware of his dual citizenship status. It is highly likely that this child does not owe dual allegiance even though he is a dual citizen. Indeed, this is why some countries make a distinction between an “oath of citizenship” and an “oath of allegiance.”

The important point is that dual citizenship is not the same thing as dual allegiance and is a fundamental legal error for the Judge to equate the two, especially in a criminal matter, where the rule of lenity requires that any ambiguity be resolved in favor of an accused person. In the case of Adamu, there is evidence that he attempted to renounce his British citizenship, raising the question of when allegiance ends, assuming, for purposes of argument only, that renouncing citizenship is the same as renouncing allegiance. Here again, I believe the judge erred in holding that allegiance continues until such time that the British authorities accept the application for renunciation.

As argued, allegiance is a state of mind. It is independent of what the British authorities decide to do. Thus, once Adamu filed his renunciation papers, his allegiance effectively came to an end. Again, it is easy to see why. Suppose Britain has a policy that frowns upon renunciation and seldom grants it, as is the case in many countries. In such a case, an application for renunciation could take a life time. In this case, conditioning Adamu’s allegiance on the action of the British authority leads to an obvious absurdity. The allegiance-based disqualification now becomes about the actions of the British authority rather than the state of mind of Adamu.

In any event, it is the height of silliness for us to assume that an otherwise disloyal and dangerous person who is unfit to serve in our Parliament becomes fit overnight by merely renouncing his citizenship. However, this is another matter that is not related to the errors of Justice Quist.

The Judge was also unduly harsh in sentencing Adamu to 2 years of imprisonment for each of the 3 counts where two of the counts were misdemeanors and were lesser included offences in the second degree felony. There is no justification in sending anyone to prison for 4 years on misdemeanor charges, especially where, as here, there is no evidence that Adamu knowingly made any false declarations and attempted to renounce his British citizenship, even though the Ghana Supreme Court is yet to interpret Article 94(2)(a).

To conclude, the Adamu Sakande case is a travesty of justice. The MP must be released immediately on bail and an Appeal Court must quickly set aside this fundamentally flawed judgment. Further, Parliament must repeal section 94(2)(a), which has now become a vehicle for some politicians to do to their political opponents what they are unable to do at the ballot box.

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