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Opinions of Thursday, 29 July 2021

Columnist: Dawda Eric

The biblical theory of allegiance and the position of the law

The 1992 Constitution of Ghana The 1992 Constitution of Ghana

I have heard a lot of people argue that it is unconscionable to disallow Ghanaians who hold dual citizenship the opportunity to occupy sensitive positions in Ghana.

The argument is hinged on the fact that those living in the diaspora whose umbilical allegiance is tied to the country where they live actually pay remittances to the Republic of Ghana and hence must be allowed to even represent their constituents in Parliament.

Some Members of Parliament we are told are getting prepared to sponsor a bill to have that provision of the 1992 constitution reviewed to allow our brothers the long yearning opportunity to also serve their country(Mother Ghana).

In 2012, Professor Kwaku Asare went to the Supreme Court for an interpretation particularly in respect of Articles 94(2), 95(1) and 96(3) of the Constitution of the Republic of Ghana. The Court gave a powerful ruling which directed the Plaintiff to the sound wisdom of that provision.

It must be understood that issues of allegiance are a jealous principle that had its roots in the Holy Book. In fact, the recommendations by the committee of experts proposal on the draft of the 1992 Constitution actually took inspiration from the Bible before proposing that aspect of the law which has now become the subject of debate today.

For emphasis, I will like to reproduce the position of the Bible for purposes of clarity. It reads and I quote " A classic example of the dangers of dual loyalty is given in the First Book of Samuel Chapter 29, verses 1 to 11:

When the Philistines Rejected David in preparation for a battle with their enemy, the basis for that decision was on dual loyalty.

The Philistines brought all their military units together at Aphek while Israel was camped by the spring in Jezreel. As the Philistine leaders were passing [in review with their units of] hundreds and thousands, David and his men were passing [in review] behind them with Achish.

Then the Philistine commanders asked, “What are these Hebrews [doing here]?”
Achish answered the Philistine commanders, “That is David, Servant of King Saul of Israel. He has been with me a considerable period of time. From the day he defected until today, I’ve found no fault with him.”

The Philistine commanders, however, were enraged with Achish and told him, “Send that man back and let him return to the place you assigned him. He must not go down with us into battle only to become our adversary during the battle. What better way could he regain his master’s favour than with the heads of our men? Isn’t this the David they sing about during their dances:
Saul has killed his thousands, but David his tens of thousands.

So Achish summoned David and told him, “As the Lord lives, you are an honourable man. I think it is good to have you working with me in the camp because I have found no fault in you from the day you came to me until today. But the leaders don’t think you are reliable.

Now go back quietly and you won’t be doing [anything] the Philistine leaders think is wrong“ But what have I done?” David replied to Achish. “From the first day I was with you until today, what have you found against your servant to keep me from going along to fight against the enemies of my lord the king?”

Achish answered David, “I’m convinced that you are as reliable as an angel of God. But the Philistine commanders have said, ‘He must not go into battle with us.’ So get up early in the morning, you and your masters’ servants who came with you. When you’ve all gotten up early, go as soon it’s light.”

So David and his men got up early in the morning to return to the land of the Philistines. And the Philistines went up to Jezreel.”

At least Ghana has had some experience in this sphere of loyalty not long ago. Even in a game of football Ghanaians and the world would recall the fears held when Ghana’s National team, the Black Stars were to meet Serbia in the 2010 World Cup opening match since the coach of the Black Stars Milovan Rajevac was a Serbian.

There were fears as to his loyalty to the interests of Ghana represented by the Black Stars. When Ghana beat Serbia one-nil, the Serbian coach Milovan Rajevac visibly had to restrain himself from any reaction whatsoever. That notwithstanding his home in Serbia was attacked by Serbians. This situation arose even though Rajevac was not even a Ghanaian citizen! His country could not forgive his apparent breach of allegiance to it.

Now, every provision of the Constitution is presumed to be there for a purpose and cannot be disregarded for the sake of convenience. The issue of allegiance is indeed at the root of citizenship. It must be understood that a country owes specific duties to its citizens; for example, it is its responsibility to evacuate them in times of war or crisis from any foreign land. There is reciprocal responsibility of the citizen not to engage in acts that would put the security of his country at risk, to mention just one duty. The question of allegiance should therefore not be taken lightly.

Even today, in a country like Sri Lanka, Nationals who have dual citizenship are not allowed any chance near their legislature. It is striking that Sri Lanka has similar thinking on this matter as Ghana. Thus in Peters and Another v. Attorney General and Another[2000] 3 LRC 32, the headnote teaches thus:

“On 11 December 2000 the appellants, P and C were elected to the House of Representatives in Trinidad and Tobago. The second respondents, Farad Khan and Franklin Khan, were the defeated candidates in, respectively, P and C’s constituencies.

The second respondents applied under s 52 of the Constitution and s 106(1) of the Representation of the People Act 1967 (‘the RPA’) for leave to bring election petitions challenging the election of each of the appellants on the basis that each was disqualified for election by s 48 of the Constitution since he held, in addition to citizenship of Trinidad and Tobago, citizenship of another country.

Those applications for leave were heard and granted, ex parte. The appellants filed a constitutional motion under s 14(1) of the Constitution of Trinidad and Tobago, which provided that ‘if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion’, arguing that their constitutional rights would be infringed by the election petitions.

The relief sought by the motion was: a declaration that the proceedings commenced by way of election petitions by the second respondents contravened the appellants’ fundamental human rights guaranteed by the Constitution since they had been obtained ex parte since they were entitled to have the matters in the petitions interpreted in proceedings from which there was a right of appeal to the Privy Council; a declaration that the election petitions were incapable of terminating their membership of the House of Representatives, was null and void and of no effect and were a contravention of the ‘subordinate legislative powers of the Rules of Committee and the President’; and a declaration that each appellant was ‘duly qualified to be, and is entitled to remain, a member of House of Representatives duly elected.’

The appellants therefore sought by their constitutional motions not only to have the Election Court declared incompetent to pass on the validity of their election but also to have the Constitutional Court determine the issue of their qualification to be elected to the House of Representatives.

In the case of Ghana not only have the impositions on offices that are not open to the dual citizen been retained but they have been expanded by the impugned provisions. It is noticeable from the offices which cannot be held by a dual citizen of Ghana that they are all high profile or leadership positions (see article 286(5)) which involve confidentiality and unalloyed allegiance to Ghana and if some other countries do not consider them to be such, Ghana is not precluded from doing so. Dual loyalty has been denounced in the book of the Universe, the Bible.

In the Holman Illustrated Study Bible, Matthew chapter 16 verse 24 states thus: “No one can be a slave to two masters, since either he will hate one and love the other, or be devoted to one and despise the other. You cannot be slaves of God and of money.”

For me, people who think those provisions of our constitution makes no sense and that must be changed should reflect on the wisdom behind the spirit of Articles 94(2), 95(1) and 96(3).