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Opinions of Sunday, 19 July 2020

Columnist: Abdul Razak Wumpini Mohammed

NDC vs EC , AG: Is a birth certificate a prima facie evidence of citizenship?

The Supreme Court of Ghana The Supreme Court of Ghana

The answer is a categorical yes, and I respectfully disagree with the honourable Supreme Court on this contrary reasoning as espoused by Kotey JSC.

If a birth certificate is not prima facie proof of citizenship, what else is and what distinguishes that or those? In fact, has the Constitution, 1992, laid down any document(s) as proof of citizenship to the exclusion of a birth certificate? Does the non-disclosure mean we should not search for any rebuttal documentary proofs of citizenship?

While I may not point to a law especially case law in support of my disagreement, I doubt if the challenge of a birth certificate as proof of citizenship is an old and settled one in the Supreme Court’s jurisprudence. This might well be the first of its peculiar kind.

However, one thing is clear in the SC judgement and it is the point I have made from day one: exercise of discretionary power. What the EC decided as proof of citizenship this time, to the exclusion of a birth certificate, was sustained by the force of law because the EC within its constitutional mandate said so. Now, think about what the court would have said if the EC had decided the reverse - that a birth certificate was a rebuttable proof of citizenship...

Do you think the court would have clamped down on the EC’s decision? I doubt so! So I think it’s an example of the Supreme Court, heeding then Chief Justice Archer’s warning in NPP v AG (31st December case), not to “behave like an octopus stretching its eight tentacles here and there to grasp such jurisdiction” where none is provided for it in the constitution.

Much to my disappointment, the Supreme Court could have either accepted this challenge to give a more logical and legal reasoning on a birth certificate as prima facie proof of citizenship or simply refuse jurisdiction to save itself from this confusion and these hullabaloos.

Respectfully, nothing stopped the court from declaring the “prima facie” and presenting the more logical position that while a birth certificate is a prima facie proof of citizenship the court is not in the business of running the EC’s operations from the bench and so will not compel the EC to or injunct it from doing a thing that is constitutional in favour of an alternative approach to carrying out the same task as reasoned in the Abu Ramadan cases.

This is another opportunity that befell the court but missed like it did before to properly present a legal, logical and coherent reasoning for their decision in Sallah v Attorney-General (on the effect of a coup on constitutional regime) or more seriously in my respectful view in Ekwam v Pianim (on the effect of the spirit of the constitution), considering the spirit summoned in the celebrated Tuffuor v AG case and applied admirably in NPP v AG (31st December case) - a decision I feel has since virtually thrown Article 3 (Defence of the Constitution) of the 1992 Constitution to the dogs.

Especially that the Supreme Court of Ghana wields one of the great powers among its peers in the world, the apex court has “yaande” (to wit: again) missed another glorious chance to develop the common law on proof of citizenship in Ghana.

God bless our homeland Ghana and make our nation great and strong.

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