Cape Coast High Court Decision on Assin North MP Mr. Quayson is an attack on dual citizens and the diaspora

On July 28, 2021, the Cape Coast High Court (CCHC) found Mr. Quayson “guilty of having not renounced his Canadian citizenship at the time of filing his Parliamentary nomination”. Putting partisan politics aside, this decision represents a blatant attack on dual citizens and potential dual citizens in the diaspora. Article 8 (1) of the 1992 Constitution states “A citizen of Ghana may hold the citizenship of any other country in addition to his citizenship of Ghana”. Clothed with this provision, Mr. Quayson acquired a Canadian citizenship, lived in Canada, acquired enormous amount of knowledge in various fields and decided to come back to Ghana to help move Ghana forward. “De€ ↄrep€ ade€ aba Kↄtↄkↄ no, y€ ny€ no aborↄ”, literally translated ‘he who is bringing glory to the nation should not be frustrated’.

Why are we trying to frustrate dual citizens who want to come and help heal the rotten system, and by extension put fears in any one in the diaspora who will think of ever coming to Ghana to contribute. Successive governments (both NDC and NPP) have succeeded in depriving Ghanaians in the diaspora of their voting rights despite the passage of the Representation of the People's Amendment Law (ROPAL).

Frivolous excuses have been given as to the delay of its implementation by the duopoly (NDC/NPP). The current NPP government had a very good alibi for the non-implementation of ROPAL during the recent elections: Covid-19. But a critical look at the rapidity with which bills, and motions with vested interests go through Parliament and are implemented leaves one to conclude that the alibi was only a serendipity.

A good riddance because they never wanted to implement it anyway. It takes the Ghanaian Parliament just some few hours to approve car loans for members. It takes a few hours to approve loans and contracts mortgaging our natural resources. I do not want to add without due diligence even though I can cite the recent Minister of Health’s admission regarding the Sputnik Covid-19 vaccine contract. Just before the 2020 elections, it took only a few hours for Parliament to pass a “Salvaged” vehicle law only to be scrapped, or suspended, when the trade minister could not define what a salvaged vehicle is.

But salvaged vehicle is not one which has taillight damage; among other things a salvaged vehicle is one that has sustained structural damage. It took the CCHC only a few hours to decide that Mr. Quayson’s victory is annulled. It is frustrating that after spending years to acquire knowledge to come and help one’s country, it would take only a few hours to be told that you are not wanted. The definitions of being “eligible to be a member of Parliament” and to “qualify to be a member of Parliament” will be paramount.

The CCHC erred, in my respectful opinion. Mr. Quayson must have read the 1992 Constitution and knew that he was entitled (eligible) to stand for any parliamentary, and even presidential, elections in Ghana. Article 94 (3) of the 1992 constitution spells out those people who are not eligible for election as members of Parliament:

94 (3) A person shall not be eligible to be a member of Parliament if he— (a) is prohibited from standing election by a law in force in Ghana by reason of his holding or acting in an office the functions of which involve a responsibility for or are connected with the conduct of, an election or responsibility for, the compilation or revision of an electoral register; or (b) is a member of the Police Service, the Prisons Service, the Armed Forces, the Judicial Service, the Legal Service, the Civil Service, the Audit Service, the Parliamentary Service, the Statistical Service, the Fire Service, the Customs, Excise and Preventive Service, the Immigration Service, or the Internal Revenue Service; or

(c) is a chief.

Mr. Quayson was not within the category of persons listed in Article 94 (3), so he was not ineligible at the time he filed as a candidate. It took me a while to find the definition of eligible, but it may be summed as ‘Meeting the necessary conditions required to participate in or be chosen for’. In other words, it is the right to run for office in elections. The framers of the 1992 Constitution made a clear distinction of who can stand for election and who can enter Parliament. Standing for election and entering Parliament are two different things but the CCHC combined the two and erroneously made a judgement based on entering Parliament.

Eligibility is not the same as admissibility. If the Framers of the 1992 Constitution did not want dual citizens to stand for elections, they would have put them in Article 94 (3) aforementioned.

For the CCHC to find Mr. Quayson guilty of having not renounced his Canadian citizen when filing his nomination is an error in judgement. Mr. Quayson was eligible to stand for election as his circumstances at the time he contested is not mentioned in Article 94(3). The only Article that prevents Mr. Quayson from entering Parliament is Article 94(2)(a) A person shall not be qualified (matter of admissibility) to be a member of Parliament if he –

(a) owes allegiance to a country other than Ghana. To qualify to be a member of Parliament is not the same as eligible to be a member of Parliament.

There has been a precedent when a person not qualified to be a member of Parliament (even to be Prime Minister, today’s equivalent of President) stood for election because he was within the remit of the law, and nothing prevented him. However, when the time came to enter Parliament, the person was not qualified and so the Constitution prevented him. I am referring to Article 71(2)(b)(ii) and (d) of the 1969 constitution

(2) No person shall be qualified to be a member of the Assembly who

(b)has been adjudged or otherwise declared

(ii)by the report of a commission of inquiry to be incompetent to hold public office or that while being a public officer, he acquired assets unlawfully or abused his office or willfully acted in a manner prejudicial to the interest of the state.

(d) has had his property confiscated as the result of the findings of a commission of inquiry.

These provisions barred Mr. Komla Agbeli Gbedemah from sitting as a member in the 1969 Parliament.

His eligibility to stand for election was not an issue at all, and he duly contested and won the parliamentary. He was, however, disqualified from being a member of Parliament and that was the interpretation in 1969.

Precedence thus ought to be followed, and if that is done, Mr. Quayson’s right to sit in Parliament as Member of Parliament for Assin North will be laid to rest.

Moving forward, a look at Article 71 of the 1969 Constitution and Article 94 (2)(a) of the 1992 Constitution brings up the same words “be qualified to be a member of….”.

Except the meaning of the words did change between 1969 and 2020, there should not be a different interpretation. The Court in 1969 ruled on the fact that Mr. Gbedemah was not qualified to be in Parliament. His eligibility to stand for election was never an issue; rather, his admissibility (qualification) into Parliament was an issue. Circumstances can change between election day and the day one enters Parliament. Mr. Quayson renounced his Canadian citizenship forty-two (42) days before entering Parliament so where did he go wrong?

According to the CCHC, Mr. Quayson had his certificate of renunciation on November 26, 2020; eleven days before the elections and 42 days before entering Parliament and consequently, satisfied Article 94(2)(a) when he became a member of Parliament.

Mr. Quayson is still the Member of Parliament for Assin North; the CCHC has erred.

The Electoral Commission (EC) is somewhat to blame in bringing about this dispute. The EC should have concentrated on organising the elections instead of trying to interpret the Constitution to prospective Parliamentarians. Part IV of the 2020 Parliamentary Nomination Form contains unnecessary reproduction of sections of the 1992 Constitution, as well as a requirement for prospective Parliamentary Candidates not mentioned anywhere in the Constitution (I am a citizen of Ghana by birth). In future, barring any additional information, I think the only thing that should feature on the “Statutory Declaration of a Person Nominated as a Candidate for Parliamentary Public elections…” must be:

I, Akosua Ghana, do solemnly and sincerely declare that the information I have provided in the attached candidate’s personal record form is true and accurate….as well as the signature page.

There are seventeen (17) of them; from 1 to 16, are not necessary. The first: “I am a citizen of Ghana by birth” is not a requirement to stand for Parliamentary elections under the 1992 Constitution. The EC thus prevented dual citizens who have acquired Ghanaian citizenship from standing for elections, and their posture has contributed to this current crisis. Mr. Quayson knew that the number four was not an issue so he proceeded to file his nomination papers.

The fourth: “I do not owe allegiance to any country other than Ghana” is what caused the erroneous decision by the CCHC.

Once elected, a holder of dual citizenship can renounce their other citizenship to satisfy Article 94(2)(a), because there is a gap between election day and the day of entry into Parliament and one would have ample time to renounce their other citizenship in a lot of instances.

Some political parties as well forced their prospective parliamentary candidates to renounce their other citizenship even during primaries, which ought not be the case. After losing the elections most became worse off, having lost the right to go to Parliament and having forfeited the other juicy citizenship. The constitution does not prevent any one from contesting for both Parliamentary and Presidential elections as a dual citizen.

The requirement of being a Ghanaian by birth is only required when vying for the Presidency. Foreign born Naturalized Ghanaian citizens can run for elections as parliamentarians, renunciation of their other citizenship is only required when they win the elections. The framers of the 1992 Constitution made provision for all to participate so it will be unhelpful for somebody to try to change the rules in the middle of the game.

Mr. Quayson has played by the rules governing eligibility to be a member of Parliament as his circumstances did not fall within those mentioned in Article 94(3)(a)(b(c), and his admissibility into Parliament was not an issue according to Article 94(2)(a), having renounced his Canadian citizenship 42 days ahead of time; he must be given the peace of mind to serve the people of Assin North and Ghana as a whole.

The EC’s efforts to educate prospective parliamentarians on the Constitution is not the best. If a prospective parliamentarian does not know the criteria by which they can stand for elections, then the individual is not fit to be voted for. The cost of the paper and the ink used in these unnecessary reproductions of sections of the Constitution may run into millions of cedis and indeed go to waste.

Owing allegiance to another country other than Ghana does not prevent anyone from standing for elections: however, to enter Parliament, one does not have to owe allegiance to another country under article 94(2)(a). I hope the Appeal will overturn the CCHC’s decision regarding Mr. Quayson’s admissibility into Ghana’s Parliament, otherwise an interpretation of Article 94 by the Supreme Court would be necessary.

Adverse decisions and threats to prevent the diaspora from helping solve the country’s problems are not helpful.

Written by Nana Osei Mensah Bonsu (Migration and Citizenship Consultant