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Opinions of Tuesday, 14 July 2015

Columnist: Asare, Kwaku S.

Clarifying the Law on Dual Citizenship to Expose the Irrationality of the Law

S. Kwaku Asare, GIMPA

Clarifying the Law on Dual Citizenship to Expose the Irrationality of the Law on Office-Holding Exclusions

I write again on the law on dual citizenship to clarify what I have found out and consider as widespread misunderstanding of or confusion about the nature of dual citizenship.

I have recently read, to my utter chagrin, theories about how one has to do something to activate one's citizenship or to pass a test of allegiance as a condition precedent to dual citizenship, etc. Most of these theories have been but forth in relationship to a child born of parents of two nationalities (e.g., Ghana and Nigeria). These theories have been proposed to suggest that one cannot become a dual citizen without taking an affirmative action, such as acquiring a passport of another country. The theories are not just false and misleading but utterly and fatally so.

Each country determines her citizenship laws. In general, citizenship is acquired either at birth or through naturalization. To keep the discussion short, I only focus on citizenships at birth. Some countries, like USA, follow the jus soli doctrine while others, like Ghana, follow the jus sanguinis doctrine. Jus soli simply means citizenship is determined by the soil on which you are born. Jus sanguinis simply means citizenship is determined by your parents’ blood.

Because each country determines her citizenship laws, it has long been recognized that many people will be born with 2 citizenships. This is why many countries now accept dual citizenship as a fact of life and while progressive countries have buried ancient and archaic views (e.g., questioning their loyalty) about such dual citizens.

As a concrete example, both Ghana and Nigeria follow the doctrine of jus sanguinis (citizenship by blood). As such, a child born to a Ghanaian/Nigerian couple is automatically, without doing anything, a dual citizen at birth and will remain so unless the child, as an adult, affirmatively renounces one of the citizenships and even so only if the country allows such renunciation. Nigeria, for example, “worships” Nigerians at birth and do not allow them to renounce their citizenships easily or disqualify them from holding any office, including the Presidency, even if they hold 30 other citizenships.

To make it more interesting, let us assume that the child is born in USA where citizenship is based on the jus soli doctrine. This poor child will come to the world with 3 citizenships. He does not have to know it, do anything about it, claim it, write about it, acknowledge it, etc. He is born a dual citizen and remains so until he affirmatively renounces one or more of those citizenships. This is not a problem at all and happens routinely everyday. But notice that no country can confer dual citizenship on a person. A country can only determine her citizenship law but cannot confer dual citizenship on anyone. What a country can decide is whether or not to permit her citizens to hold the citizenships of other countries.

So it is completely false to say one has to “activate citizenship before one can claim it” or pass an allegiance test or apply for a passport as a condition precedent to dual citizenship by birth.

One becomes a dual citizen at birth by the operation of the citizenship laws in 2 or more countries. This is exactly why the Supreme Court struck down the requirement of a dual citizenship certificate in Asare v. Attorney General (2012) where the Court said one does not have to do anything to become a dual citizen. If one is a citizen in 2 or more countries, one is a dual citizen. No card is necessary to show this anymore than one needs a card to show that he is a "single citizen." This is why the dual citizenship certificate issued by the ministry of interior was a useless piece of paper (albeit sold at $200), although it is still being sold unlawfully to unsuspecting dual citizens.

One does not become a Ghanaian or a citizen of any country (at birth) by a test of allegiance or by activating a citizenship or by getting a passport or by getting a dual citizenship card.

One becomes a citizen at birth automatically whether one knows it or not, claims it or not, accepts it or not, etc.

You may not like being a Ghanaian but if you are born a Ghanaian then you are a Ghanaian unless you renounce your citizenship but even here on terms decided by Ghana, not by you. And you are Ghanaian if either of your parents are Ghanaians, no matter where you are born!

This is why a Ghanaian father can obtain both a USA and a Ghanaian passport for his child, born in USA, if he so desires. In fact, some Ghanaian ministers of State have travelled to USA to deliver their children. These children automatically are dual citizens.

A passport is a travel document. It is not a test of allegiance or a condition precedent to citizenship. In fact, it is the other way round. That is, one has to prove their Ghanaian citizenship to obtain a passport. There are many Ghanaians who do not have or need a passport. It does not say anything about their allegiance to Ghana. And there are many Ghanaians who have a passport. It has nothing to do with their allegiance. They just need it to travel.

When people support laws that exclude dual citizens from holding some positions, they think they are “going after” those who carry USA, UK, or other western passports in addition to being a Ghanaian (these people won't admit this agendum though).

But the law, as they have written it, casts a very wide net, has a substantial reach and is now beginning to devour people born to a Ghanaian and another parent from a neighbouring country, such as Nigeria. There are MANY dual citizens born in Ghana and elsewhere everyday because of mixed marriages (between Ghanaian and Nigerian, Togolese or other ECOWAS couples).

There are many people who are dual citizens and were born so. A dual citizen is not just a Ghanaian with an American passport. A dual citizen is anyone born to a Ghanaian and another parent from a country whose citizenship laws follows the jus sanguinis doctrine (or anyone born to a Ghanaian in a country that follows the jus soli doctrine).

Ms. Charlotte Kesson-Smith’s case exposes the flaws in the dual citizenship law. Our discriminatory and irrational dual citizenship law has trapped her. But it should not.

I DO NOT think her parentage and dual citizenship by birth status alone should disqualify her. It will be a tragedy if it did just as it was a tragedy when Adamu Daramani was sent to jail for being elected MP while a dual citizen.

What do progressive and honest nations do when confronted with Ms. Charlotte Kesson-Smith's dual citizenship dilemma? They rethink the problematic law not deny the obvious and incontrovertible fact that she is a dual citizen by birth.

On the other hand, Ms. Kesson-Smith must feel proud of her dual citizen heritage not deny her roots! She must not be compelled to choose between her parents’ countries and reject something that she has carried from birth, knowingly or not!