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

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. This article did not and could not have aimed at disqualifying a group of Ghanaians, numbering in the millions.

Modern Constitutions are not drafted that way and should not be interpreted to devalue citizenship or create fractional citizenship. 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) was targeted at a Ghanaian who has been adjudged to engage in certain prohibited acts that are inimical to the interests of the country.

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;
• 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;
• found 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 defrauded the State or misused or abused his office, or willfully acted in a manner prejudicial to the interest of the State;
• is under sentence of death or other sentence of imprisonment imposed on him by any court;
• is not qualified to be registered as a voter under any law relating to public elections;

It is obvious 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.

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.

Article 94(2)(a) imposes other crippling disabilities that should aid in 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 that is imposed on article 94(2)(a) for purposes of parliamentary elections is consistently applied, dual citizens who hold offices in the overseas branches should be disqualified and prosecuted. 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 sheer breadth of office-holding exclusions under article 94(2)(a) suggests that it should be construed narrowly rather than broadly, as has historically been done. It should be good for thought for every progressive that we interpret the national Constitution in a way that makes it abhorrent for parties to adopt in their constitution.

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 Ghanafuo 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 basis?

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 citizenship of the country.

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 for another country (e.g., the Soussodis 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 that is inimical or prejudicial to the country’s interest or security.

In spite of the clarity of what I’m saying, some are likely to misunderstand and infer that I am saying citizenship has no implication for allegiance. For the avoidance of doubt, I’m not saying that. I’m saying allegiance as used in article 94(2)(a) is not related to citizenship. Therefore, if there is an intent to disqualify dual citizens, it must be done lawfully, as indeed it has been done by 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).

The Nigerian Constitution explicitly disqualifies persons from the country’s legislature on grounds of both dual citizenship or acknowledgment of allegiance. Nevertheless their courts have properly reasoned that no natural born Nigerian can be disqualified from holding any public office.

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 said “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.

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!

By Professor S. Kwaku Asare