Is Ghana sitting on a constitutional time bomb?

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I want to start by emphatically asserting that the current allegiance-based exclusions of plural citizens from the political space are a constitutiona...

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I want to start by emphatically asserting that the current allegiance-based exclusions of plural citizens from the political space are a constitutional time bomb. To be sure, I do not dispute that allegiance is an important cultural tissue that binds the nation. When, however, it is deployed as an instrument to exclude some citizens from fully participating in the political space, it raises some profound questions about equal citizenship, which is the most fundamental value of the Republic.

Kwaku Asare

I, therefore, advance the following propositions: “(i) Article 94(2)(a), hereafter the ALLEGIANCE article, is widely misunderstood and misapplied; (ii) Unamended Article 8 [1992], hereafter the SINGLE CITIZENSHIP article, committed a cardinal sin  by attempting to revoke the citizenship of many Ghanaians against their will, where such citizens had not chosen to renounce same; (iii) The Constitutional Amendment to fix the SINGLE CITIZENSHIP article in 1996 (Act 527) was botched and created even more profound constitutional problems; (iv) The legislative sanctions imposed by Section 16 of Act 591 (Citizenship Act of 2000) are corrosive of democracy, constitutionalism and equal citizenship; (v) Section 13(1) of Act 959 (Special Prosecutor Act of 2018) is completely misconceived.

Consequentially, I call for the immediate repeal of Article 94(2), Article 8(2), Section 16 of Act 591 and Section 13(1) of Act 959 (Special Prosecutor Act of 2018). The common thread in each of these impugned laws is the exclusion of some Ghanaian citizens, most of them natural born, from holding certain elected or appointed offices, on questionable, speculative, and misconceived grounds.

These exclusions are antithetical to the principle of equal citizenship, which not only animates the 1992 Constitution but was the basis for the union created in 1957, after independence from the United Kingdom.

The Fierce Urgency of the Repeal

I do not want to sound alarmist but grievances relating to citizenship rights are the primary cause of conflict in post-independence Africa. The exclusions are not rooted in law, economics, or history or anything that is remotely rational. In my view, the repeal will resolve a plethora of illogicalities that flow from a purposive misinterpretation of the Allegiance Article and selective application to some citizens, the most egregious being the jailing of Adamu Sakande where, unknown to many people, a Judge somehow found that he was not a citizen of Ghana.

To be sure, it was apposite to atone for the cardinal sin in 1996, when we returned to our historical commitment to plural citizenship, and it is past time we stopped paying lip service to our commitment to the reality of plural citizenship. We cannot simply check the box to say “we too allow plural citizenship while still holding on to anti plural citizenship doctrines. Plural citizenship is not Fractional Citizenship!”

The constitutional conundrum inherent in using allegiance as an exclusionary instrument was recently on full display when the NPP Parliamentary caucus proposed an amendment to the Party’s constitution to the effect that “A person shall not be qualified to hold executive position in NPP if he owes allegiance to a country other than Ghana.” According to the caucus, they were merely importing Articles 55(8) and 94(2)(a) from the national constitution into the party’s constitution.

The move was resoundingly defeated with His excellency, President Nana Addo Dankwa Akufo Addo, stating “the motion to amend the constitution of the party which will make it impossible for dual citizens to hold party office and contest for election will lead to the collapse of our overseas branches and will be withdrawn.”

These events compel asking an obvious question:

  • How can a provision of the National Constitution be considered too toxic for inclusion in a political party’s constitution?
  • Alternatively, what is the case for retaining in the National Constitution articles that are considered too toxic for inclusion in the constitution of political parties?

My answer is that the Allegiance Article is a Harmless Article, that is “purposively misunderstood and opportunistically misapplied. Its meaning, scope and purpose remain a deep mystery to most of the populace. Alternatively, if my argument is not sustainable then the Article, as understood and applied, is too toxic to remain in the Constitution. Either way, it is time to Repeal the Article and other related exclusionary articles and statutory enactments from the Constitution and the Statutes.

That One too be Citizenship?

The exclusions are wide ranging and cover about and cover a minimum of 30 offices.  For convenience, I have categorized them into three tiers. The Tier 1 exclusions are based on the Allegiance article, and excludes the affected persons from serving in the executive, legislature, political parties, electoral commission, etc. The Tier 2 exclusions were imposed by Parliament in 1996 following the repeal of the Single Citizenship Article and covers Ambassador or High Commissioner; Secretary to the Cabinet; Chief of Defence 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. The Tier 3a exclusions came into being in 2000 by an ordinary statutory enactment and covers Chief Justice and Justices of the Supreme Court; 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 (this was stricken out by the Supreme Court as unconstitutional). The Tier 3b exclusion came into effect in 2018 and disqualifies persons who owe allegiance to other countries from serving as the Special prosecutor, even though they can serve as Director of Public Prosecutions.

In consequence, plural Citizens are supposed to be citizens yet:

  • They have no voice in the legislature
  • They cannot be in the Cabinet
  • When they feel their rights are imperiled, they face a Supreme Court that they cannot belong to
  • They cannot start Political Parties to fight for their interest
  • They cannot lead or be executive members of Political Parties
  • They cannot belong to the Electoral Commission, NCCE, Public Service Commission
  • Parliament can exclude them from more positions with a simple majority
  • Parliament passed a law and 2 Supreme Court Justices agree that even a minister can exclude them from holding more positions.”

History of Plural Citizenship

As a result of our colonial ties, commonwealth origins, migration policies, porous borders and leading role in Pan-Africanism, we are a quintesentially a nation of plural citizens. Further, while we have always had allegiance in our laws, it was distinguished from citizenship and was not used as an exclusionary tool, until very recently. Alas, politicians politicized allegiance, starting with deporting some members of the Muslim Youth Association, defying court orders not to deport Balogun and others, tinkering with statutes and eventually outlawing plural citizenship.

I must commend President Kuffuor who in 1968, said that precluding plural citizens from occupying high positions in our society will not be in conformity with civilization and natural justice and I call upon NPP to adopt Kuffuor’s 1968 position. I also commend Obed Asamoah who in the same year said that he does not see why some Ghanaian citizens should have lesser rights than others and I call upon NDC to adopt Asamoah’s 1968 position. I also commend Joe Appiah who reminded the nation in 1968 that plural citizens fought for this nation and we must learn to live in unity.

Ritual of Renouncing

The recent pre-confirmation renouncing of citizenship by some political nominees as an “ostrichian ritual, which is no cure for the underlying problem, if indeed there is a problem. If we are sincere that people cannot hold certain positions because we do not trust them, then we must even be more suspicious of such confirmation induced rituals.

I question the wisdom of renouncing citizenship on grounds that it leads to not just loss of citizenship but also loss of residence. Further, requiring renouncing as a condition precedent to full participation in the political space is discriminatory because it treats permanent residents differently (no loss of residence to serve in Ghana). In some cases, renouncing citizenship could lead to loss of profession or investment, curtail the ability to return to the renounced country, lead to loss of social security and other health entitlements in the renounced country, and require natural born dual citizens to choose between parents.

I am challenging plural citizens who want to serve to join the crusade to repeal the laws on exclusion rather than take the easy way out by renouncing their citizenships and willfully providing the ammunition to exclude their children. It is not just about those who renounce but it is also about their children!!

Case against Exclusions

Ghana developed a brain trust in the 1960s on the hope that it will lead to future brain gain. However, the years of military rule imposed a brain pain that led to massive brain drain. It is, therefore, time to repeal these exclusionary laws to bring back the brains to fulfill their trusteeship role.

Ghanaians overseas are high income earners who save a lot. The government must tap into this wealth by creating diaspora financial vehicles. But a condition precedent for a successful deployment of these vehicles is to assume these Diasporas are patriotic. Questioning their fidelity is incongruous to asking them to be patriotic.

Misunderstood Allegiance Article

The allegiance article, which forms the basis of these exclusions, is misunderstood and there are historical, doctrinal, textual, and empirical grounds to reject the current opportunistic interpretation. Bilson v Rawlings clearly establish that allegiance is not citizenship. In that case, President Rawlings swore an affidavit that he was a dual citizen and the Judge clearly decoupled allegiance from dual citizenship.

The Supreme Court should be more protective of fundamental human rights and its half a loaf is better than none jurisprudence on plural citizenship is deeply troubling. It is fundamentally wrong for the Court to say that “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.” This position may be so on policy debates but cannot be the case when citizens call for their protection of fundamental human rights. The test for allowing the legislature to traverse fundamental human rights must be extremely high and such legislation must be narrowly tailored to achieve the purpose.

The Court sounds ridiculous, when it says “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).” This is analogous to saying Parliament can exclude dual citizens from holding anything as long as they are not excluded from everything. Of course, some credit must be given to Chief Justice Sophia Akuffo and Justice Rose Owusu who have said that all the Tier 3 exclusions are unconstitutional. But much more is needed from the Court when it comes to acting as a sentinel of those rights deemed fundamental, inalienable and entrenched.

To sum up, I call for the immediate repeal of all the laws on allegiance-based exclusions, since, upon careful reading, those exclusions relate only to registered Ghanaians who had asked for an extension of time to renounce their other citizenships. Our allegiance laws were never meant to exclude natural born Ghanaians, as appositely held by a Nigerian Court interpreting an identical constitutional language. The allegiance laws could not have applied to natural born Ghanaians because the 1992 Constitution forcibly took their citizenship away when they became citizens of other countries.

Author : Kwaku Asare

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