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It is Time to End the Politico-Judicial Persecution of Dual Citizens

BY: Prof. Stephen Kwaku Asare
Prof. Stephen Kwaku Asare
Prof. Stephen Kwaku Asare

Article 94(2)(a) provides that a person is not qualified to be a member of Parliament if he owes allegiance to a country other than Ghana. It is obvious but it needs stating that the article does not say a person is not qualified to be a member of Parliament if he is a citizen of a country other than Ghana. The easiest way to see that article 94(2)(a) is not aimed at Ghanaians who are citizens of other countries is to remember that at the time of promulgating the Constitution, it was not permissible for a citizen of Ghana to hold the citizenship of another country.

The politico-judicial misinterpretation that article 94(2)(a) is aimed at dual citizens has the grave effect of disqualifying a group of Ghanaians, numbering probably in the millions. Modern Constitutions are not drafted to create classes of citizenship and should not be interpreted to devalue citizenship or create fractional citizens. Considering that the values of equal citizenship, inclusiveness, and representativeness animated the Constitution, the article could certainly not have disqualified Ghanaians based on their status.

Rather, article 94(2) is targeted at a Ghanaian who has been adjudged to engage in certain prohibited acts that are inimical to the interests of the country. In the case of article 94(2)(a), the prohibited offense is to take a non-citizenship related affirmative action that creates an obligation to a country other than Ghana.

One only has to look at the other prohibited acts in article 94(2) to get an appreciation of the character of the allegiance related disqualification. For instance, the article disqualifies a Ghanaian who has been adjudged,

  • bankrupt and not discharged;
  • as being of unsound mind or detained as a criminal lunatic;
  • convicted for high crime, high treason, treason or for an offence involving the security of the State, fraud, dishonesty or moral turpitude;
  • convicted for any other offence punishable by death or by a sentence of not less than ten years;
  • convicted for an offense relating to, or connected with elections;
  • found by the report of a commission of inquiry to be incompetent to hold public office or that, while being a public officer, acquired assets unlawfully or defrauded the State or misused or abused his office, or willfully acted in a manner prejudicial to the interest of the State, and the findings have not been set aside on appeal or judicial review;
  • is under sentence of death or other sentence of imprisonment imposed on by any court;
  • is not qualified to be registered as a voter under any law relating to public elections; or
  • is otherwise disqualified by a law in force, at the time of the promulgation of the Constitution, not being inconsistent with a provision of the Constitution.

It is instructive that in the case of conviction or of an adverse finding by a commission of inquiry, article 94(5) suggests that the disqualification lapses if ten years or more have passed since the end of the sentence or the date of the publication of the report of the commission; or has been pardoned. This reprieve and the provision for a discharge reprieve in the case of a bankrupt suggest that a disqualification under article 94(2)(a) may arguably be for a lifetime.

However, whether article 94(2)(a) imposes a lifetime ban or not is not important for establishing that
article 94(2) goes after a Ghanaian who has engaged in a prohibited act, that is clearly inimical or prejudicial to the interests or security of the country, or that raises questions about their trustworthiness, and who has been adjudged culpable after going through some due process, and who cannot do penance by merely disavowing or renouncing his actions.

In effect, the article imposes a penalty (i.e., the disqualification) for palpable, prohibited, and egregious misconduct. To add a person who hold the citizenship of another country to this list of criminal and serious infractions is to reduce interpretation to silliness and to completely ignore the spirit of the Constitution, not to mention that the status was not even known to the Constitution at the time of its coming into force.

Article 94(2)(a) imposes other crippling disabilities that are relevant to its interpretation. For instance, not only does it disqualify a person from serving in the legislature, but also from serving in the executive, constitutional commissions (such as EC or NCCE) or from forming, leading or even serving in the executive of any political parties.

If the misinterpretation of article 94(2)(a), for purposes of parliamentary elections, is consistently applied, dual citizens who hold offices in the overseas branches are doing so unlawfully and are subject to criminal prosecution for perjury. That, of course, is sheer absurdity as NPP found out when some illiberal members of the party attempted to import article 94(2)(a) into the party’s constitution. The mere fact that a provision of the national Constitution is considered too toxic to be imported into a party’s constitution should be a glaring hint that the provision is being misinterpreted and should be food for thought for every constitutionalist or liberal minded person.

The sheer breadth of office-holding exclusions under article 94(2)(a) suggests that it should be construed narrowly rather than broadly and should be based on a prohibited action rather than a status, such as lawfully possessing the citizenship of another country. The spirit of the Constitution does not allow an interpretation that excludes over million citizens from having the opportunity to serve in the legislature, executive, constitutional commission or to play a leading role in the political parties.

Owing allegiance to a country other Ghana, as used in article 94(2)(a), has nothing to do with being the citizen of another country. In fact, the Constitution, as promulgated, did not even permit Ghanaians to hold the citizenship of another country. So how does it make sense to think that it relates to something that did not exist, let alone for the judiciary to punish people based on this clearly and facially flawed misapplication of the law?

Owing allegiance, as used in article 94(2)(a), means having an obligation to be loyal to or a duty to obey a country other than Ghana, arising out of transactions unrelated to the citizenship of that country. Citizenship of other countries can be excluded because the Constitution forbade such a relationship, and so could not reasonably have had that in contemplation under article 94(2)(a).

Such an allegiance extends beyond the mere acknowledgement, bearing, or declaring an allegiance to a foreign country that are incident to residing in another country, working in some professions (such as practicing law in Maryland or working for the State in California), or becoming the citizen of another country.

Ghanaian lawyers in Maryland, like those naturalizing in the United States, make oath as follows “… that I will bear true allegiance to the United States, and that I will support, protect and defend the Constitution, laws and government thereof as the supreme law of the land; … .” To reason that this bearing of allegiance to the United States is equivalent to the owing of allegiance in article 94(2)(a) is to just abandon analytical reasoning.

Owing of allegiance, as envisaged in article 94(2)(a), imposes certain enforceable duties arising because of some financial or contractual considerations. The prohibited acts envisaged by article 94(2)(a) include;

  • a duty to spy on the country for the benefit of another country (e.g., the Soussoudis case and the swap of citizens that occurred in 1985);
  • service in the military of an enemy country;
  • provision of comfort or adherence to the country’s enemies;
  • serving as a mercenary;
  • or otherwise accepting a binding debt of allegiance to other countries for non-citizenship related reasons to perform acts that are inimical or prejudicial to the country’s interest or security.

Considering the importance of a citizen’s political right, any disqualification must be anchored on engaging in an ex-ante prohibited act that is palpably, not speculatively, harmful to the interests of the country and for which there has been an adjudication or independent resolution showing that the prohibited action has occurred. Attempts in other jurisdictions to disqualify citizens based on their allegiance to other countries by reason of serving as honorary consul, or being a roman catholic, or being an officer of the greek orthodox church, or even protesting visiting warships have all failed. The threshold for disqualification must be high considering the importance of equal citizenship and the constitutional imperative of allowing citizens to participate fully in the political space.

Notwithstanding the clarity of what I have written, some are likely to misunderstand my point and infer that I am saying citizenship has no implication for allegiance. For the avoidance of doubt, I am not saying that. Citizenship has some implications, albeit antiquated and ritualistic, implications for allegiance. I am saying that allegiance as used in article 94(2)(a) is not related to citizenship. Therefore, if there is a legislative intent to disqualify dual citizens, it must be done lawfully, as indeed it has been done under article 8(2) and section 16(2) of the citizenship act. But dual citizenship does not belong to and cannot be roped under article 94(2)(a).

This is why in Bilson v Rawlings and Another [1993-94] 2 GLR 413-428, where the defendant affirmed, under oath, that he was born a British subject in 1949 and became a Ghanaian in May 1957, Justice Esslifie-Bondzie properly focused on his allegiance, which he had repeatedly sworn to Ghana, not his citizenships.

This is also why countries like Nigeria and Australia adopt disqualifying language that relates to both allegiance and dual citizenship. For instance, under section 44(i) of the Australian Constitution, “any person who is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

This makes it clear that acknowledging allegiance to another country is distinct from being a citizen of another country. While the Nigerian Constitution explicitly disqualifies persons from the country’s legislature on grounds of both dual citizenship or acknowledgment of allegiance, their courts have properly reasoned and held that no natural born Nigerian can be disqualified from holding any public office.

Similarly, the Sierra Leone courts have not allowed their politicians to use dual citizenship as a sword against dual citizens following the passage of a law that allowed for dual citizenship. One of their Justices opined, following their restoration of dual citizenship, that, “it could not surely have been the intent of Parliament to give to some of its citizens a right whilst leaving in place provisions which deprived them of the benefits of that same right. On the occasions where parliament does not act, this court must step in to ensure that the Constitution or any enactment is interpreted to reflect society’s evolution and progressive attitudes particularly towards gender, tribe, religion, race or citizenship, so that no one group or part of a group is left out of an inclusive society.”

The judge is right in understanding that citizenship is not just a status but also a bundle of rights and a key to full and equal participation in the political community and the democratic space.

It is preposterous to apply article 94(2)(a) to dual citizens, thereby disqualifying millions of Ghanaians from full participation in the political space. Act 527 did not grant a mere status to Ghanaians who hold citizenship of other countries. It did not make them fractional Ghanaians. It made them Ghanaians, with all the rights attaching to the status. Parliament could have amended article 94(2)(a) to add a disqualification on the grounds of dual citizenship. It did not and the judiciary must not bless these unlawful disqualification.

Considering the citizenship jurisprudence in our neighboring countries, one wonders why our judiciary seem not to be aware of the importance of an inclusive society, or attuned to more modern views on citizenship, or even to take the time to work through the meaning and effect of article 94(2)(a).

It is time to end the politico-judicial persecution of dual citizens.

SALL is the cardinal sin of the 8th Parliament.

Da Yie!