Quayson Case: Electoral Commission Goofed Big Time

The ongoing case regarding Mr. Quayson has been brought about as a result of the Electoral Commission’s (EC) attempt to interpret portions of the constitution on the EC’s Presidential and the Parliamentary Nomination Forms. This exercise however does not in any way form part of the EC’s duties.

According to Article 45 of the Constitution, the following constitute the Functions of the Electoral Commission.

(a) to compile the register of voters and revise it at such periods as may be determined by law;

(b) to demarcate the electoral boundaries for both national and local government elections;

(c) to conduct and supervise all public elections and referenda;

(d) to educate the people on the electoral process and its purpose;

(e) to undertake programmes for the expansion of the registration of voters; and

(f) to perform such other functions as may be prescribed by law.

There is nowhere in the Constitution that says that The EC should interpret the constitution to Presidential and Parliamentary aspirants.

On the various nomination forms are reproductions of sections of the Constitution which seek to draw their attention to who qualifies for what. If prospective Presidential and Parliamentary Candidates do not know who qualifies to be what they are aspiring for, then they are not worth voting for, simply because they are ignoramuses who cannot sit in the law-making chambers of our country.

One of such reproduction by the EC is Article 94(2)(a), which says ‘a person shall not be qualified to be a member of Parliament if he owes allegiance to a country other than Ghana’ . This is the subject of the hullaballoo surrounding the Quayson case.

There is nowhere in the 1992 Constitution that requires any one to renounce the other citizenship before filing to contest an election. Mr. Quayson knew the provisions of The Constitution, and nothing could block his way to file the nomination papers.

It was wrong for the EC to put impediments in such a way that prospective candidates (unlike Mr. Quayson) would be afraid to file for nomination. Another of such impediments on the nomination form is the requirement that Presidential and Parliamentary Candidates must be forty (40) and twenty-one (21) years respectively when filing for nomination. A Candidate is neither a President nor a Member of Parliament at the time of filing until January 7^th of the year following the election when the successful candidate should enter office.

A differentiation has to be made between eligibility to stand for election and qualification to enter office, and the constitution itself succinctly makes room for these scenarios and is even backed by the Gbedemah case, where he was eligible to stand for elections at the time he stood for elections but was not qualified to accede office at the time of inauguration.

Article 94(3) on eligibility are hereby reproduced:

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.

The operative word here is ELIGIBLE, that is to put yourself out to be voted for. Mr. Quayson’s circumstances did not fall into any one of the categories listed in that section of the constitution and so was not in breach of the law when he put himself up to be voted for or filed his nomination to stand for the position of MP.

Article 94(2)(a) is what comes close to Mr. Quayson’s situation, and it states thus: ‘a person shall not be qualified to be a member of Parliament if he – (a)owes allegiance to a country other than Ghana. But even there, the Court in my respectful opinion got it wrong. When can it be determined that one is qualified to be a Member of Parliament? That fact only arises for determination when the person is about to enter Parliament, that is when he/she has had the support of his constituents and is to be sworn as a member of the House. Mr. Quayson however was not a dual citizen when he entered parliament.

The Constitution allows that a person aspiring to be a MP and who would be twenty-one years old on the 7^th of January of the year following the elections to file their nomination and stand for that election. The constitution does not bar such a one from contesting. Thus, if the EC continues on the very trajectory it is on now, scaring people away, then the intent of the constitution will be thwarted beyond redemption. A candidate who follows the admonition of The EC when nominations start on June 7^th, vfor instance, in the election year will be twenty-one years and six months on January 7^th when the next Parliament begins. The EC should delete all those unnecessary impediments from the nomination forms.

Those impediments should not have been on the nomination forms in the first place. In the present case involving Quayson, it was the acrimony towards Ghanaian citizens who held other citizenships that has brought us into this quagmire. The acrimony was ingrained in the original 1992 Constitution.

Article 8(1) of the original 1992 Constitution states:

“Subject to this article, a citizen of Ghana shall cease forthwith to be a citizen of Ghana if, on attaining the age of twenty-one years, he by a voluntary act, other than marriage, acquired or retains the citizenship of a country other than Ghana”.

Holders of dual citizenship were prevented from having a say in Ghanaian politics even though their remittances were factored in the country’s budget. Fear was put in the holder of dual citizenship that they should not come close when the affairs of the country called Ghana were discussed. The fear was manifested in various constitutions of some political parties. Some political parties forced their prospective parliamentary candidates to renounce their other citizens even during primaries, which ought not to be the case.

It was not until the latter part of 1996 (December) that the unfriendly posture towards Ghanaians abroad was amended to tolerate dual citizens. Article 8(1) of the constitution Dual Citizenship Amendment states thus: ‘A citizen of Ghana may hold the citizenship of any other country in addition to his citizenship of Ghana’. This was to cure the earlier malady present in the constitution.

When aspirants are compelled to relinquish their other citizenship before contesting, most become worse off, having lost the right to go to Parliament and having forfeited the other juicy citizenship. The constitution does not prevent anyone from contesting for both Parliamentary and Presidential elections as a dual citizen. The requirement as envisaged under the constitution is that one must not be a dual citizen when they become, and not before becoming an MP or President. The constitution is specific on that so there is no transition period. It is unfair to change the rules in the middle of the game.

If there were no impediments imposed by the EC, there would not be any criminal charges preferred against Mr. Quayson. The EC is in error for having those reproductions from the Constitution on the nomination forms and purporting to interpret same. We otherwise would not be having this conversation.

Of the criminal charges preferred against Mr. Quayson the one concerning the acquisition of Ghanaian passport seems frivolous.

Question 24 on the Application for A Republic of Ghana Passport form states: Do you have dual citizenship? Yes or No, If Yes state other country………….

There is nothing that suggests that if one has dual citizenship, a Ghanaian Passport will not be issued to him/her. Stating “Yes” would not have prevented Mr. Quayson from obtaining a Ghanaian Passport. He had the right to have a Ghanaian Passport as well as a Canadian Passport by virtue of Article 8(1) of the 1992 Constitution as earlier mentioned.

Mr. Quayson should not be expelled from Parliament because when he entered Parliament on January 07, 2021, he did not owe allegiance to any other country other than Ghana. The decision of The Cape Coast High Court on July 28, 2021 suggests that the provisions of Article 94(2)(a) has been amended to read “a person shall not be qualified to be a Parliamentary Candidate if he owes allegiance to a country other than Ghana”.

Parliament should check to see if there is any member in their midst today who owes allegiance to another country other than Ghana. That person must be expelled. The Speaker should have a simple roll call to see if there is any member who is in violation of Article 94(2)(a).

In the case of Hon. Adamu Daramani Sakande (of blessed memory), he had a British Passport whilst in Parliament. The two cases are never the same. Hon. Sakande (of blessed memory) held a British Passport and therefore “owed

allegiance to a country other than Ghana,” and was acting in contravention and

in continuous violation of Article 94(2)(a) of the 1992 Constitution for as long as he continued to sit in the Parliament of Ghana.

Adverse decisions and threats to prevent diasporans from helping solve the country’s problems are not helpful. Let’s not create the impression that ‘our own’ who are in the diaspora and have taken citizenship there – which is beneficial to them and their dependents back home – are de facto enemies of the state. That will rather not be in the interest of our country.

Written by

Nana Osei Mensah Bonsu

(Migration and Citizenship Consultant