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Opinions of Monday, 4 June 2012

Columnist: Asare, Kwaku S.

The Supreme Court’s Pronouncements on Dual Citizenship in Ghana

S. Kwaku Asare


The Supreme Court recently made several important pronouncements on dual citizenship that has statutory, regulatory, and travel implications. The pronouncements render inaccurate and obsolete information posted on the website of many of our embassies. I discuss the pronouncements and their implications, especially for travelling as a dual citizen.

In 1996, the First Parliament of the 4th Republic amended the 1992 Constitution by enacting Act 527. Act 527 repealed Article 8(1) of the Constitution and substituted a new Article 8(1), which provides that: “A citizen of Ghana may hold the citizenship of any other country in addition to his citizenship of Ghana.”

Act 527 also inserted a new Article 8(2) that did not exist in the 1992 Constitution. Specifically, Article 8(2) sought to exclude dual citizens from holding the following offices: (i) Ambassador or High Commissioner; (ii) Secretary to the Cabinet; (iii) Chief of Defense Staff or any Service Chief; (iv) Inspector General of Police; (v) Commissioner, Customs, Excise and Preventive Service; (vi) Director of Immigration Service; and (vii) Any office specified by an Act of Parliament.

With the new power granted by Act 527, Parliament, in 2000, enacted Act 591, which expanded the offices that dual citizens could not hold. The Act 591 exclusions include (i) Chief Justice and Justices of the Supreme Court; (ii) Commissioner, Value Added Tax Service; (iii) Director-General, Prisons Service; (iv) Chief Fire Officer; (v) Chief Director of a Ministry; (vi) the rank of a Colonel in the Army or its equivalent in the other security services; and (vii) any other public office that the Minister may by legislative instrument prescribe.

Further, in 2001, the Citizenship Regulations mandated that a citizen of Ghana who holds the citizenship of another country must apply for the grant of Dual Citizenship by paying the equivalent of $200. She must provide a cover letter, evidence of Ghanaian citizenship, evidence of parents’ citizenship, naturalization certificate, and four passport sized photographs. The application forms must be sealed. If satisfied, the Hon. Minister of Interior would issue the citizen of Ghana a signed Certificate of Dual Citizenship (Form 11) at a statutory fee, which now stands at about $20.

Naturally, the constitutionality of these exclusions and administrative burdens were challenged at the Supreme Court (the panel included Atuguba (Presiding), Akuffo, Brobbey, Date-Bah, Ansah, Owusu, Anin, Yeboah, Gbadegbe, and Akoto-Bamfo). After written and oral arguments, followed by supplementary briefings, the Supreme Court, per Justice Date-Bah, provided the following answers to the following eight (8) pointed questions. Justice Atuguba wrote a separate concurring opinion but it does not add much and is not discussed. Justice Sophia Akuffo wrote an opinion, concurring in part and dissenting in part. The dissent is discussed because of its importance.


1. Did the 1992 Constitution recognize any class of dual citizens?
Yes, the 1992 Constitution recognized a class of dual citizens. In so holding, the Court rejected the Attorney-General’s major argument to the effect that “the Ghana Nationality Act, 1971 (Act 361) which governed citizenship or nationality issues in Ghana is the existing law and for that matter all citizens of Ghana who were citizens of Ghana and at the same time citizens of other countries were deemed not as citizens of Ghana.” In contrast, the plaintiff had insisted that dual citizens who had acquired that status by marriage or by an involuntary act or who had not attained the age of twenty-one years were recognized under the Constitution.
This is an extremely important and consequential holding because if the 1992 Constitution recognized dual citizens, then it also provided a model of how those dual citizens should be treated. To the extent that the 1992 Constitution did not subject them to public-office holding exclusions, any subsequent effort to subject them to such exclusions must be subject to the highest level of judicial scrutiny.
The Attorney General was well aware of the importance of this issue to the Republic’s case, hence the insistence that no dual citizens were recognized by the 1992 Constitution. Plaintiff knew that if the Court answered this in the affirmative, then he had won the case as any public-office holding exclusions against these dual citizens will be deemed unconstitutional, unless some extraordinary reasons can be used to justify the interference.
Both the plaintiff and the Attorney General were in for a surprise, as revealed by the subsequent questions and answers.
2. If the 1992 Constitution recognized any class of dual citizens, did it ban them from holding any unelected public offices?
The answer is an incontrovertible no. There is no language in the 1992 Constitution that comes even close to excluding dual citizens from holding any unelected office.
3. Is Act 527 unconstitutional to the extent that it curtails the rights of dual citizens?
The answer is no, in fact, the Act it improved their rights. Justice Date-Bah did an outstanding job of trying to justify this answer, perhaps because he anticipated that this answer is controversial and will be subject to intense scrutiny, given the Court’s holding that dual citizens recognized by the 1992 Constitution were not subject to Act 527’s public-office holding exclusions. Appropriately, he starts by explaining why the exclusions are lawful, as applied to the dual citizens who suddenly find their right to hold some public offices curtailed by the 1996 amendment. According to Justice Date Bah, we need not worry about the rights of the pre-amendment dual citizens because there are only a few of them, or at least they are dwarfed by the number of citizens who lost their Ghanaian citizenship. Rather, the focus should be on the “many” pre-amendment “citizens” who had lost their citizenship as a result of acquiring citizenship of other countries. Then he introduces a strange citizenship calculus: whether these “citizens” are better off “not being citizens of Ghana” or “being admitted as citizens, at the pain of Act 527’s office-holding exclusions.” According to Justice Date-Bah’s citizenship calculus, these many “citizens” are better off under Act 527 than the status quo, when they were not considered “citizens.” “I consider that reform [Act 527] to be an advance toward greater equality, not the opposite. To insist on comparing only the rights of those who remained Ghanaian citizens, whilst ignoring the fact of the loss of citizenship from an act of a former citizen would be to present a distorted picture of the equality among citizens under the law prior to the enactment of the challenged statute.”
Clearly Justice Date-Bah is trying very hard to strike a proper balance but his answer is a curious and an unsatisfactory one that, in my opinion, constitutes fundamental legal error. First, the learned Justice does not point to any demographic data to support his conclusion about the number of dual citizens who were recognized by the 1992 Constitution. Second, the Court never sought help from the parties on this demographic data (as an aside, I suspect that most citizens who acquire the citizenships of other countries do so through marriage and involuntarily, especially during the PNDC days). Third, but even if the 1992 Constitution recognized only 1 dual citizen, it does not follow that whatever rights this solitary hypothetical person enjoys deserve no protection. On the contrary, the Supreme Court should be highly protective of the rights of our solitary friend, precisely because of his solitary status. It is trite sociology that minorities are frequently the target of discriminatory practices and laws. Fourth, why should our solitary person, or any other person, give up his rights as a condition precedent to restoring the citizenship of the “many” citizens” who had previously lost their citizenship? What in our Constitution or our values will justify trampling on the rights of the “few” to accommodate the rights of the “many,” where the right in question is an opportunity to hold public office? Fifth, why are the “few” dual citizens eligible for holding the specified public offices but the “many” dual citizens ineligible to hold the same offices?
Justice Date-Bah does not explore these important issues, except for saying “there was accordingly little need to impose the exclusions from office on these few dual nationals. The fact remained, though, that the majority of those who acquired a nationality other than the Ghanaian would lose their Ghanaian nationality and, to me, this was a worse deprivation of rights than the exclusions from office complained by the plaintiff.”
Somehow, Justice Date-Bah believes that “partial equality” is better than “total inequality” and the solution to “total inequality” is to create "lesser" forms of inequality. But even this “unequal conception of equality” is based on a constitutional fiction: that the Constitution treated “citizens” of Ghana who were deemed to have lost their citizenship as “unequal citizens.” As a matter of law, however, there were no such “unequal citizens;” and those who lost their citizenship under the 1992 Constitution had no claim under the equality clause, although admittedly they could have and did have a claim under other substantive grounds (a matter that was of no interest to the plaintiff and was never argued in Court).
In sum, the Court created a new and bad law, which justifies the curtailment of the fundamental rights (right to equality, at a minimum) of a few citizens as long as a new class of citizens, with limited rights, is created. Under this new jurisprudence, all is well because newly admitted citizens are better off as citizens, excluded from holding various public offices, and we need not worry about trampling on the rights of the pre-amendment dual citizens because of their small numbers! This reasoning, sadly, will be an “Akoto” moment for this Court!
4. Does the Supreme Court have jurisdiction to strike down a provision in an Act amending the Constitution, which is inconsistent with an entrenched provision of the constitution?
Yes. In so holding, the Court rejected the Attorney General’s argument that the Supreme Court cannot strike down as unconstitutional an Amendment Act, such as Act 527, that is regularly enacted in accordance with the right procedure. The Court sided with the plaintiff and held that “where a provision has seemingly been validly introduced into the Constitution in accordance with Article 291, but the provision is inconsistent with an entrenched clause of the Constitution, this Court has the jurisdiction to declare that provision null and void.” This is an impressive holding because it says that the Court will not hesitate to interrogate so called amendments of the Constitution that dilute or interfere with the operation of entrenched provisions.
5. Whether Act 527 public office holding exclusions are inconsistent with the entrenched constitutional provisions on equality (Article 17), dignity (Article 15) and political participation (Article 55(10))?
No. The Plaintiff had argued that the public office holding exclusions is discrimination on grounds of social status, which is not permissible, under Chapter 5 of the Constitution, unless the Republic can show that there is a compelling interest for the discrimination and it has chosen the least restrictive means to pursue the interest. The Attorney General raised issues of loyalty and fidelity. He invited the Court to ponder over these two hypothetical cases. “How can the loyalty of say a Colonel in the Ghanaian Army be guaranteed if there is a war between Ghana and Nigeria and the said colonel holds both citizenship of Ghana and Nigeria? How can one be sure of the commitment and loyalty of Ghanaian High Commissioner to UK if there is a diplomatic row between Ghana and UK when the same Ghanaian High Commissioner holds a British citizenship as well?” The plaintiff strongly challenged the loyalty and fidelity argument. In particular, plaintiff questioned whether there is any guarantee that a Colonel or for that matter anyone in the military who holds only the citizenship of Ghana will be committed to Ghana in case of the war with Nigeria. He observed that all those who have engaged in treason by overthrowing the constitutionally empowered government of this country were all single citizen Ghanaians. He asserted that there is no single evidence of disloyalty and infidelity by any dual citizen.
Justice Date-Bah conceded that the plaintiff’s argument is “cogent.” However, surprisingly, he said “I do not think a Court has to be persuaded by the cogency of the rationale for a legislative purpose before it can see its way clear to enforcing that purpose. A Court may not necessarily agree with the logic or coherence of a particular purpose sought to be achieved by the legislature, but that is no justifiable basis for refusing to enforce the legislation that seeks to implement this purpose.” Accordingly, the Court held “the legislative purpose implied in the impugned Article 8(2), namely, the devising of a putative framework for loyalty is not irreconcilably in conflict with the letter and spirit of Article 17, whether or not that framework is logically flawed.”
In effect, the Court set a new and rather low standard for enforcing fundamental human rights. All that the Republic has to show in disturbing a fundamental right is some interest, which need not be even rational. As an example, the Court will enforce a statute, which imposed office-holding exclusions on Catholics (Muslims) if the legislative purpose is to put in place a framework to exclude those who might be loyal to the Pope (Saudi Arabia) rather than the Republic. Of course, the Court does not explain why loyalty and fidelity are legitimate interests after the enactment of Act 527 when they were not issues before for the dual citizens recognized by the 1992 Constitution. However, I suspect the answer lies in the numbers (few then versus many now!)
Justice Date-Bah discussed the concept of dignity and concluded that it is often intertwined with the concept of equality. As a result, he is “not inclined to give a definitive exhaustive interpretation to Article 15” and is also “not prepared to hold that the exclusions from office contained in Article 8(2) are incompatible with the dignity provided for in Article 15.” This is very good because Justice Date-Bah would probably have used the facts of this case to offer a very narrow interpretation of dignity.

Regarding the right to political participation, Justice Date-Bah held that “the disqualification of dual citizens from holding the offices of (i) Ambassador or High Commissioner; (ii) Secretary to the Cabinet; (iii) Chief of Defense Staff or any Service Chief; (iv) Inspector General of Police; (v) Commissioner, Customs, Excise and Preventive Service; (vi) Director of Immigration Service does not constitute such a denudation of their political rights as to infringe their right, pursuant to Article 55(10), to participate in political activity intended to influence the composition and policies of the Government. What gives me cause for concern is the power given to Parliament under Article 8(2) to specify any office from which dual citizens will then be disqualified from holding. In my view, the spirit of the Constitution imposes a limit on the legislative discretion thus conferred. For instance, if Parliament were to enact a law specifying that dual citizens are disqualified from all public office, that would be an unconstitutional infringement of Article 55(10).”
As is obvious, this holding raises questions about the internal consistency of Justice Date-Bah’s decision. If Parliament does not need a cogent reason to exclude dual citizens from holding public office, why then does Parliament not have plenary power to exclude them from holding any and all public offices? What exclusions are permissible and what is impermissible? Justice Date-Bah does not say!
6. Whether the additional office holding exclusions specified by Parliament in Act 591 (pursuant to its authority under Act 527) are unconstitutional?
No. According to Justice Date-Bah, “I do not consider that the exclusion of dual nationals from those particular posts is a sufficient derogation from their right to participate in political activity as to lead to unconstitutionality. The weight of the posts from which dual nationals are excluded, compared to the range of public posts for which dual nationals remain eligible, is such that, on balance, I am not able to come to the conclusion that the right of dual nationals to participate in political activity has been infringed. Moreover, the posts in question are not even political, although it has to be admitted that the holders of them can affect the policies of government.”
In other words, Parliament, without going through amendment procedures, has the power to exclude dual citizens from a “few” but not from “many” offices. This, again, is questionable jurisprudence.
Justice Sophia Akuffo took the question more seriously and disagreed strongly with her colleagues. In a separate opinion, she reiterated that Citizenship connotes the enjoyment of a bundle of rights, which can be curtailed by following clear legal provisions. Agreeing with the plaintiff, she reasoned that the power given to Parliament to add to the list of public office holding exclusions under Act 527 is an unlawful hijacking of the process for amending the Constitution. Further, when Parliament excluded dual citizens from holding additional offices under Act 591, Parliament unlawfully amended Article 8(2) of the Constitution. Accordingly, she held that Article 8(2)(g) was unlawfully inserted into the Constitution and is unconstitutional. She also held that Act 591, Sections 16(2)(a), (h) – (l) was unconstitutional (these are the additional offices proscribed by Parliament in 2000). In her words, “to hold otherwise would be very dangerous and make a mockery of constitutional provisions such as Article 8(2), which particularized specific matters, thereby eventually reducing the Constitution to the status of an ordinary statute, as evidenced by what Parliament has attempted to do in section 16(2) of Act 527.”
She is correct!

7. Whether the power granted to the minister to exclude dual citizens from holding additional offices is null, void and of no effect as it delegates excessive, unnecessary and unreasonable power to the Minister of Interior?
Yes. The power delegated to the minister to exclude dual citizens from holding additional offices is an unlawful delegation of power. Parliament has no mandate under Act 527 to delegate public office holding exclusionary powers to the minister. Thus, section 16(2)(m) of Act 591 is unconstitutional.
8. Whether the administrative requirement to obtain a dual citizenship card is discriminatory, unreasonable, burdensome, serves no legitimate constitutional purpose and thereby is null, void and of no effect?
Yes. The Republic cannot mandate dual citizens to obtain dual citizenship certificates. In siding with the plaintiff, the Court held that “any administrative procedures or practices or subsidiary legislation which seek to impose fetters or conditions on the exercise by dual nationals of their rights as citizens are unconstitutional.”
From a practical perspective, this means a citizen of Ghana who obtains the citizenship of another country becomes a dual citizen by operation of the law. There is no need to apply for a dual citizenship certificate, as advertised on the website of the embassies. When travelling to Ghana, be sure to have your Ghana passport, for ingress purposes, and your other passport, for egress out of Ghana and ingress into the other country. In other words, think of your other passport as the residence permit, you gave up for your new citizenship.
Conclusion
Justice Date-Bah should be commended for authoring an important decision that provides answers to some intriguing constitutional questions. His opinion is well structured, and he addresses all the key issues. I, respectfully, disagree with some of his reasoning but I believe he has, in very temperate judicial language, asked us to be better than our current approach to excluding dual citizens from holding public offices. He clearly does not buy the fidelity and loyalty argument but will prefer that Parliament undo the harm that has been done to dual citizens, especially those who were recognized by the 1992 Constitution.
Justice Akuffo has called Act 591 exclusions a mockery of the Constitution. The Court has struck out sections of Act 591 and the dual citizenship regulation. Justice Akuffo believes that Article 8(2)(g) is unconstitutional. To uphold the amendment, the Court unfortunately accepted that it was willing to disturb the rights of some Ghanaians, justifying it with “they are not that many.”
Parliament has no option but to go back to the drawing board, if for no reason, to bring the stricken down statutes and regulations in conformity with the Court’s decision. But I enjoin them to do better by repealing in its entirety Article 8(2) and the exclusions in Act 591. Our Presidential candidates cannot be mute on this key issue. Le them show leadership!