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Opinions of Tuesday, 22 November 2011

Columnist: Asare, Kwaku S.

Equal Citizenship: A Constitutional Bedrock under Imminent Threat and Danger

S. Kwaku Asare

In this article, I present equal citizenship as a fundamental principle animating the 1992 Constitution. I also argue that the principle is under imminent threat and danger. The purpose of the article is to call for a united and sustained effort to protect the principle and to avoid becoming a society of unequal citizens. I start by defining equal citizenship and describing its constitutional foundations. This is followed by a discussion of areas where equal citizenship is currently under severe attack.

Briefly, the areas are: (1) some citizens are banned from holding certain unelected public offices; (2) some citizens are banned from holding certain elected public offices; (3) some citizens’ votes count more than others; (4) some voting laws are not enforced with the sole purpose of disenfranchising some citizens. I conclude with strategies that the citizens under attack must pursue to win this war on equal citizenship. What is Equal Citizenship? The Constitution addresses citizenship from two perspectives: In chapter 3, it focuses on citizenship as status and delineates who is a Ghanaian citizen. In chapter 7, it focuses on citizenship as a bundle of rights and delineates the rights that accrue to only and all citizens. Thus, citizenship status and citizenship rights are inseparable and represent different sides of the same coin. This is an extremely important concept because it highlights that except as severed by the Constitution itself, any actions to separate status and rights are presumptively unconstitutional. In Chapter 3, the Constitution stipulates the various ways that one can become a Ghanaian. These include grandfathered citizenship (those who were citizens before 1992), blood citizenship (anyone born anywhere to at least one Ghanaian citizen), child citizenship (children who are less than 8 years and found in Ghana or less than 16 years and adopted) and marriage citizenship (anyone married to a Ghanaian can apply to become a citizen). In Chapter 7, the Constitution stipulates that citizens have the unfettered right to vote. This right has several derivative rights, including the right to be registered, the right to participate fully and equally in the political process, the right to cast a ballot, the right for the ballot to be counted, the right for the ballot to be weighed equally, the right to run for elected office, the right to hold unelected public office, and the right to finance a candidate.

In some rare instances, the Constitution itself severs status and rights. For instance, only 18 year olds can vote (but notice here that it is assumed their parent or guardians will participate on their behalf). Only those of sound mind can vote (but notice here it is because it is assumed that they lack the capacity to participate in the political process). Those who commit high crimes or tax crimes or those who are bankrupt (and have not been discharged) cannot hold certain elected and unelected public office. However, 2 notice this is a restriction based on serious criminal actions or those that raise questions about a citizen’s ability to be trusted. Thus, equal citizenship means every citizen, as defined by Chapter 3 of the constitution, is entitled to the same rights, as defined in Chapter 7. By embracing the doctrine of equal citizenship, the Constitution and people of Ghana rejected a Caste system that varies a citizen’s rights based on social, economic, political, religious, ethnic, resident, or other citizenship status. In effect, in Ghana, except where the constitution itself curtails these political rights, the rights cannot be disturbed. Equal citizenship affirms that whatever their inequalities of wealth, status, and power in the everyday activities of civil society; citizenship gives everyone the same status as peers in the political public. It is not hard to understand why equal citizenship was such an important concept to those who framed the 1992 Constitution. The 4 th Republic emerged from a period where “the Provisional National Defence Council (PNDC) had polarized Ghanaian society into “Citizens” (“the professionals,” the relatively well-off”) and “People” (the working classes, very junior officers, and the unemployed). The “citizens” were presumed to be corrupt, and many were put before the National Investigations Committee and Citizens Vetting Committee to explain how they came by their wealth. Soldiers were positioned behind such persons undergoing interrogation, and administered slaps, beatings and military drills, often under orders from civilian personnel.” Class warfare was something that the new Republic had to avoid. Threats to Equal citizenship The doctrine of equal citizenship is being violated in four areas: (1) some citizens are banned from holding certain unelected public offices; (2) some citizens are banned from holding certain elected public offices; (3) some citizens’ votes count more than others; (4) some voting laws are not enforced with the sole purpose of disenfranchising some citizens.

Some citizens are unlawfully banned from holding certain unelected public offices In 1996, Parliament repealed Article 8(1) of the Constitution, and substituted Article 8(1) Constitution, (Amendment Act), 1996 (Act 527). The substituted Article states, “A citizen of Ghana may hold the citizenship of any other country in addition to his citizenship of Ghana.” The effect of this amendment is that the Republic now extends dual citizenship to a broader class of citizens. This is not a problem. Parliament has the express power under Article 9(1) of the Constitution to make provision for the acquisition of citizenship of Ghana by persons who are not eligible to become citizens of Ghana. Further, Article 8(1) was not an entrenched provision of the 1992 Constitution. Therefore, Parliament had the power to amend it using the ordinary amendment procedure specified in Article 291 of the 1992 Constitution.3 At the same time, Act 527 sought to disqualify dual citizens from holding several specified public offices by inserting Article 8(2) into the Constitution.

Article 8(2) states “[W]ithout 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 clause if he holds the citizenship of any other country in addition to his citizenship of Ghana

• Ambassador or High Commissioner; • Secretary to the Cabinet • Chief of Defense Staff or any Service Chief; • Inspector General of Police; • Commissioner, Customs, Excise and Preventive Service; • Director of Immigration Service; and • Any office specified by an Act of Parliament.”

Subsequently, the Citizenship Act of 2000 expanded the number of public offices and granted the minister of interior the power to exclude more offices. The new list reads as follows:

• Chief Justice and Justices of the Supreme Court; • Ambassador or High Commissioner; • Secretary to the Cabinet; • Chief of Defence Staff or any Service Chief; • Inspector-General of Police; • Commissioner, Custom, Excise and Preventive Service; • Director of Immigration Service; • Commissioner, Value Added Tax Service; • Director-General, Prisons Service; • Chief Fire Officer; • Chief Director of a Ministry; • the rank of a Colonel in the Army or its equivalent in the other security services; and • Any other public office that the Minister may by legislative instrument prescribe

In addition, the Citizenship Regulation 2001 requires dual citizens to carry dual citizenship certificates. Under those regulations, the person must apply for Form 11 (Dual Citizenship certificate) by filling Form 10 at a cost of 200 GHC. She must have a Cover letter; Evidence of Ghanaian citizenship, Evidence of parents’ citizenship, Naturalization Certificate and 4 passport-sized Picture.

A notary public, High/Circuit Judge or Head of Ghana’s Mission Abroad, must seal the Form. If satisfied, the Minister would issue the Dual Citizenship Certificate (Form 11), at a statutory fee, which is now 20 GHC.4 Act 527 is unconstitutional because it creates a class of citizens with fewer rights, in violation of the doctrine of equal citizenship and the Constitution. Specifically, by banning dual citizens from holding the specified offices, Act 527 curtails their right to participate fully and equally in the political life of the country. This recreates the caste system that the 1992 constitution sought to avoid. Further, Act 527 discriminates against dual-citizens and violates their dignity in violation of their fundamental human rights recognized in Chapter 5 of the constitution.

It is easy to see how Act 527 discriminates against dual citizens. But the violation of their dignity requires additional elaboration. Based on case law from South Africa and other jurisdictions, human dignity is said to be violated where groups are marginalized, ignored or devalued; where minorities are excluded from decision-making processes that affect them; or where individuals are treated as objects. Clearly, the exclusions in Act 527 treat dual citizens as objects; devalues and dehumanizes them; and exclude them from decision-making processes that affect them.

A potentially elegant but incurably flawed argument to support the ban is that Act 527 is an amendment of the Constitution; hence it cannot be constitutional. Simply stated, what is in the constitution cannot be unconstitutional!

While it is apt to argue that a provision of the Constitution cannot be said to be unconstitutional, it is also true and even more important to realize that provisions must be put in the Constitution in only the constitutionally permissible ways. The constitution provides 2 different paths to its amendment. Article 290 provides the path for amending entrenched provisions and Article 291 is the path for amending provisions that are not entrenched.

The Article 290 path is noteworthy because it requires that the amendments be submitted to a referendum held throughout Ghana. Further, the amendment can only pass if at least forty percent of the persons entitled to vote, voted at the referendum and at least seventyfive percent of the persons who voted cast their votes in favor of the passing of the bill.

Further, the constitution identifies those provisions that must be amended only via Article 290. The right to vote (Article 42); the right participate in political activity intended to influence the composition and policies of the Government (Article 55(10)). These two are entrenched because they are the pillars of equal citizenship. In addition, the anti -discrimination clause (Article 17) and the dignity clause (Article 15) are both entrenched.

Needless to say, any amendment of the Constitution that disturbs these entrenched provisions are void and of no effect unless the amendments are procured by following the path outlined by Article 290. And therein lies the problem with the argument that Act 527 is constitutional because it is in the Constitution! The argument is both too little and too much. It is too little because it fails to take into account the effect and implications of the purported amendment. It is too 5 much because we have an ordinary amendment of the constitution, that its extraordinary in the way it extinguishes fundamental rights, sweeping in its impact on the body politic, and revolutionary in the way it sets aside the doctrine of equal citizenship in favor of a caste system that many of us spent our lives fighting against during the PNDC days. Undoubtedly, Act 527 is an amendment. The more interesting question is what is the effect of the amendment and was the amendment properly procured? This is an important question because, as discussed, some amendments can only be procured via a referendum.

What then is the effect of an amendment of the constitution that creates a class of citizens who are excluded from holding certain public offices? In my opinion, the exclusions in Act 527 has the effect of amending the sections of the constitution that guarantee that all citizens can fully and equally participate in the political process. I also believe that the exclusions interfere with the right to vote, broadly and properly construed. In effect, the exclusions derail the concept of equal citizenship.

Further, Act 527 has the effect of amending the anti-discrimination and dignity clauses of the constitution. All four clauses being entrenched provisions, the government does not have the power to amend them by using the ordinary amendment procedures in Article 291. It is also important to note that disqualifying dual citizens from holding the specified offices serves no legitimate purpose. In the alternative, the disqualification is disproportional. That is, assuming that the ban serves a legitimate purpose, the government could seek less restrictive ways to achieve this purpose than an outright ban on dual citizens. One such way is to ask the dual citizens to take a special oath! The exclusions in Act 527 are problematic for another important reason. Specifically, the prohibitions are not consistent with our obligations under the International Covenant of Civil and Political Rights (Article 26), the African Charter on Human and Peoples’ rights (Articles 2 and 3), and the Universal Declaration of Human Rights (Article 7). Finally, the prohibition is counter to the emerging progressive jurisprudence worldwide, including Nigeria where the Courts have held that Nigerians by birth can stand for any office, including the Presidency, even if they are dual citizens.

In my opinion, the requirement to possess additional documentation that sole citizens are not required to possess is unreasonable, unnecessary, discriminatory and not constitutionally warranted and is therefore null, void and of no effect. What purpose is achieved by acquiring this document that is neither a travel document nor an identification card? Dual citizens ingress into Ghana with their Ghanaian passports and ingress into their other countries of citizenship with the passports of those countries. When egressing out of Ghana, a carrier might demand evidence that the dual citizen is admissible into the destination country and the dual citizen can 6 show the non-Ghanaian passport as evidence. The Dual Citizenship certificate is entirely worthless. In sum, the Amended Article 8(2) and the consequential legislation imposing public office-holding exclusions on certain citizens of Ghana is unconstitutional in that, the amendment has the obvious and intended effect (if not the express purpose) of discriminating against a certain class of citizens in violation of the Equality Clause of the constitution; devaluing and dehumanizing them in violation of the Dignity clause of the constitution; curtailing their right to participate equally and fully in the political process in violation of the Participation clause of the constitution; the grounds for the exclusions are not permissible grounds under the Equality, Dignity and Participation clauses of the Constitution; The Equality, Dignity and Participation Clauses of the Constitution being entrenched clauses of the Constitution, any purported amendment to those provision must be in conformance with the provision for the amendment of entrenched clauses spelled out in Article 290 of the Constitution;

The amendment in question, not having been procured in conformance with the provision spelled out in Article 290 for the amendment of an entrenched clause of the Constitution, cannot stand.

The myth of the ban on holding elected public office According to Article 94(2)(a) “A person shall not be qualified to be a Member of Parliament if he owes allegiance to a country other than Ghana.” Remarkably, this provision is being used to prosecute and persecute dual-citizens. For instance, Adamu Sakande, the MP from Bawku, has been on trial since 2008, even though he has renounced his British Citizenship.

Let us be very clear that Article 94(2)(a) does not talk about dual citizenship. The framers of the 1992 constitution, when they wanted to talk about dual citizens did it in very clear and precise language. For instance, the pre-Amended Article 8(1) takes the form of “Subject to this article, a citizen of Ghana Shall cease forthwith to be a citizen of Ghana if, on attaining the age of twenty-one years, he, by a voluntary act, other than marriage, acquired or retains the citizenship of a country other than Ghana.” So Article 94(2)(a), if it were targeted at dual citizens would have read “a citizen of Ghana who acquires or retains the citizenship of a country other than Ghana shall not be qualified to be a Member of Parliament.”

But the framers did not use this language! And for the obvious reason, that the statement was not targeted at dual citizens, who were largely aliens under the pre-amended Article 8(1) regime.7 It is important to distinguish allegiance from citizenship. As a general rule, allegiance is owed to Kings and not to Republics. Allegiance is a relic of the common law, where subjects in England, had to trade their allegiance to the King in exchange for land. If one did a comparative study of the oaths that new citizens take in various countries, one would find significant variance in the content of the oaths. For instance, in USA, a new citizen makes oath that “I will support and defend the Constitution and Laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” Is this the same thing as owing allegiance to the USA?

Canada does it differently. Here a new citizen makes oath as follows “I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen.” Again, here the allegiance is to the Queen, as allegiances, under the common law has always been, in return for land from the monarch.”

The point is that it is not only incorrect to assume that Article 94(2)(a) addresses dual citizens, it is also undeniably wrong to assume that becoming a citizen of every country requires the same oath of allegiance. Thus, whether one owes allegiance to another country becomes a matter of fact, not a matter of assumption, as is being currently done in Ghana, especially by the political parties and in the Adamu case, where a perjury charge is being used to obfuscate the agenda against violating equal citizenship.

Who was Article 94(2)(a) targeted at? While answering this question is not necessary to demonstrate that it was not targeted at dual citizens, I believe it is important for me to provide an answer for those who might ask the question. I believe that Article 94(2)(a) was targeted at those single citizens who conspired with other countries to engage in activities deemed inimical to the interests of the Republic. Official concerns and unofficial rumors about agents of foreign governments are pervasive in our political landscape to have attracted the attention of the constitutional framers. A memorable instance of this problem is the swap between USA and Ghana, in the matter of Soussodis et al.

Some will no doubt disagree with my distinction between allegiance and citizenship. But even those who disagree with the distinction would probably concede that Article 94(2)(a) is hopelessly ambiguous. It is a widely understood and accepted principle of interpretation that ambiguous laws are not to be construed to deny people rights, here a right that is fundamental to citizenship.

No court has interpreted Article 94(2)(a). However, some political parties have opportunistically applied the provision to disqualify dual citizens or to intimidate them into renouncing their citizenship, a practice that subsequently robs the renouncer the ability to travel freely to the other country where she might continue to have interests, including family. In the Adamu Sakande case, the courts have entertained a writ from a civilian that essentially takes for granted that Article 94(2)(a) is directed to dual citizens.

The Republic has built on this private frivolous writ to bring a perjury charge against the Member of Parliament.8 How are other emerging democracies handling the dual citizenship question? The most recent decision on the matter is the decision of the European Court of Human Rights (ECHR) in the case of Tanase and Chirtoaca v. Moldova. In that case, the applicants, both Moldovan nationals had challenged a 2008 amendment to the Moldovan Constitution, which barred Moldovans who held dual nationality from contesting for Parliamentary positions. The Grand Chamber of the Court held that the 2008 amendments were unlawful and disproportionate to any concern of loyalty the country may have. The Court held that- ‘...in a democracy, loyalty to a State did not necessarily mean loyalty to the actual government of that State or to a particular political party. There were other methods available to the Moldovan Government to ensure loyalty of MPs to the nation, such as requiring them to take an oath. Such measures had been adopted by other European countries.’ The archaic language of Article 94(2)(a), imported into the Constitution in 1992 when dual citizenship was not even recognized, does not affect dual citizens per se and the persecution of Adamu Sakande must stop. In the same breadth, I urge those dual citizens interested in running for office not to renounce their citizenship but to fight the war against equal citizenship.

Some citizens’ votes count more than others According to Article 47 (1) “The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota.” Here is another command form the Constitution that reinforces the doctrine of equal citizenship. By using the population quota to demarcate constituency boundaries, each person’s vote is weighed equally, consistent with equal citizenship. Yet, since 1992, the Electoral Commissioner has created boundaries that severely violate Article 47(1), justifying the violation by citing the variance provision of Article 47. The variance provision of Article 47, allows the Electoral Commissioner to create constituencies whose numbers “may be greater or less than the population quota in order to take account of means of communication, geographical features, density of population and area and boundaries of the regions and other administrative or traditional areas.” The variance provision is necessary because of various logistical realities and the difficulties of perfect division. However, it does not permit the Electoral Commissioner to create constituencies that are 10 times as smaller (or larger) as others. A close study of the post- 1992 electoral shows a clear tendency for the largest constituencies to be NPP strongholds and the smallest constituencies to be NDC strongholds. It is neither necessary nor useful to speculate on the reasons for this electoral map. What is clear is that it has resulted in gerrymandering, and has assaulted the doctrine of equal citizenship.

The Electoral Commissioner should simply set an interval that all constituencies should fall within. As an example, assuming, the population is 20 million and there are 200 constituencies. That leads to a population quota of 100,000. The formula for creating constituencies can be specified as the population quota ± 5%. This way, constituencies can range from 95,000 to 105,000, depending on the variance factors. I am happy that 9 this matter is now before the Supreme Court in Bortier and Quaye v Electoral Commissioner. It is my fervent hope that the Supreme Court’s decision will affirm the doctrine of equal citizenship.

ALL LAW BE LAW

The Supreme Court is to be commended on its recent decision on prisoners’ right to vote (Ahumah Ocansey et al. v The Electoral Commissioner et al.). The Court is right in upholding the doctrine of equal citizenship. Under Article 42, the right to vote is given in unqualified terms and is not forfeited by committing a crime. What is not so amusing is the rapid move by the Electoral Commissioner and the Mills Government to enforce the ruling compared to the snail pace in enforcing ROPAA. ROPAA must be enforced because ALL LAW BE LAW!

It is utterly inappropriate and incurably lawless for the Electoral Commissioner and the Government to use the lack of funds to selectively enforce voting rights and consciously undermine equal citizenship. Failing to act, citizens abroad must issue a writ of mandamus to compel the Electoral Commissioner to put in place mechanisms to allow them to vote in 2012. The Electoral Commissioner has an absolute duty to enforce ROPAA and has no discretion whatsoever.

Winning the War on Equal Citizenship

How do we win the war on equal citizenship? I see six steps. First, those who believe in the doctrine of equal citizenship must support and fund only candidates who commit to enforce the doctrine. Second, citizens abroad must engage with the Electoral Commissioner to seek ways to implement ROPAA for 2012. If Kenya and Ivory Coast can implement their “ROPAA,” why not Ghana? I think citizens abroad should come out with proposals for ROPAA to become self-financing, perhaps by paying a nominal registration fee of no more than $50 to a ROPAA fund. Third, more workshops are needed on equal citizenship. Fourth, we must establish a civil liberties union to fight in the courts. Finally, those who are affected by the war on equal citizenship must organize.

They are too divided and that makes it easy for laws to be made and applied in ways that are detrimental to their interests.