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Interpretation – Statutes -
Clause (2) of article 1 of the
Constitution 1992 - Dual
citizenship – Allegiance –
Whether or not there was any
justification for altering this
law so as to enable Ghanaians
acquiring the nationalities of
other countries to retain their
status as Ghanaian citizens –
Whether or not section 16(2) of
the Citizenship Act, 2000 (Act
591) is null, void and of no
effect as it contravenes the
letter and spirit of Article 17
of the 1992 Constitution
HEADNOTES
The facts of
this case are that the
Constitution of the Republic of
Ghana (Amendment) Act, 1996 (Act
527) received the Presidential
Assent on 16th
December 1996. The object of
the Act was to amend the
Constitution of Ghana. Section
1 of the Act provides as
follows: “Article 8 of
the Constitution is repealed and
the following inserted: Article
8 ofthe Constitution substituted
8.(1) A citizen of Ghana may
hold the citizenship of any
other country in addition to his
citizenship of Ghana(Dual
Citizenship) (2)Without
prejudice to article 94 (2) (a)
of the Constitution, no citizen
of Ghana shall qualify to be
appointed as a holder of any
office specified in this clause
if he holds the citizenship of
any other country in addition to
his citizenship of Ghana ,
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, Where the law
of a country requires a person
who marries a citizen of that
country to renounce the
citizenship of his own country
by virtue of that marriage, a
citizen of Ghana who is deprived
of his citizenship of Ghana by
virtue of that marriage shall,
on the dissolution of that
marriage, become a citizen of
Ghana.” Pursuant to this
Constitution of the Republic of
Ghana (Amendment) Act, 1996 (Act
527), the Citizenship Act, 2000
(Act 591) was enacted which
contains a section 16(2) which
the Plaintiff in this action
claims is unconstitutional.
Accordingly, on 27th
June 2011 he filed a writ
invoking the original
jurisdiction of this court,
seeking the following reliefs:
“A Declaration that section
16(2) of the Citizenship Act,
2000 (Act 591) is null, void and
of no effect as it contravenes
the letter and spirit of Article
17 of the 1992 Constitution, in
that the section discriminates
against a Ghanaian citizen who
has acquired the citizenship of
another country by disqualifying
the citizen from holding any of
the offices specified in the
said section.
in
that the section singles out
Ghanaians who have acquired
citizenships of other countries
and treats them in a way that
violates their dignity as human
beings and doubts their status
as honest citizens capable of
holding high off to participate
fully in the affairs of the
State and violate the principle
of equal citizenship which is a
bedrock principle of the 1992
Constitution. A declaration that
the prohibitions in Section
16(2) of the Citizenship Act,
2000 (Act 591) are not designed
to protect any compelling,
important, legitimate or even
rational national interest. The
plaintiff is a Ghanaian citizen
who had his education up to the
tertiary level in Ghana before
moving to reside in the United
States of America, where he is
currently employed as a
Professor with the University of
Florida. The plaintiff claims
to have been active in the
public affairs of Ghana since
the late 1970s and to have
continued in this role since the
coming into force of the 1992
Constitution. The plaintiff’s
submission is that the answer to
this question is in the
affirmative. Although he
concedes that a provision that
is lawfully inserted into the
Constitution cannot be said to
be unconstitutional, he however
contends that a purported
Constitutional amendment which
is procured by unlawful means or
even one that is procured by
lawful means that is
inconsistent with the basic
structure of the Constitution is
null and void and
unconstitutional.
HELD
I am not able
to come to the conclusion that
the right of dual nationals to
participate in political
activity has been infringed.
Moreover, the posts in question
are not even political, although
it has to be admitted that the
holders of them can affect the
policies of government, , I am
inclined to grant the fifth
declaration to the extent that
it makes void s. 16(2)(m) of the
Citizenship Act 2000 (Act 591)
which I consider to be void as
conferring excessive,
unnecessary and unreasonable
power in excess of Parliament’s
authority on the Minister of the
Interior to ban dual citizens
from holding any public office
that the Minister may
prescribe. This delegated
Ministerial authority is subject
to abuse and would not have the
protective process of
Parliamentary debates which
attend the passage of a Bill
into an Act. Accordingly, in the
result, save for the fifth,
sixth and seventh reliefs of the
plaintiff, I would dismiss, for
the reasons extensively set out
above, the plaintiff’s claim for
the reliefs endorsed on his Writ
of Summons.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Interpretation Act, 2009 (Act
792)
Constitution
of the Republic of Ghana
(Amendment) Act, 1996 (Act 527)
Citizenship
Act, 2000 (Act 591)
CASES
REFERRED TO IN JUDGMENT
Mekkaoui v.
Minister of Internal Affairs
(1981) GLR 664 S.C.
Attorney-General v. Ernest
Augustus (Prince) of Hanover
(1957) AC 436
Heydon’s Case
[1584 3 Co Rep. E.R. 637]
Sussex
Peerage Case [(1844) 11 Co & F
85; E.R. 1034]
Grey v.
Pearson [(1857) 6 H.L. C. 61; 10
E.R. 1216]
Govindan
Sellappah Nayar Kodakan Pillai
v. Punchi Banda Mudanayake & Ors
(1955) 2 All E.R. 833. P.C
R v Secretary
of State for the Home
Department, Ex parte Puttick
[1981] 1 All ER 776,
Peters and
Another v. Attorney General and
Another [2000] 3 LRC
Tuffour v.
Attorney-General (1980) GLR 637
C.A.
Hari Shanken
Jain v. Gandi [2002] 3 LRC 562
Kesavananda
Bharati v State of Kerala AIR
1973 S.C. 1461
Kangah v Kyere [1982-83] GLR
649 SC
Ahumah-Ocansey v Electoral
Commission [2010] SCGLR 575,
Rodriguez v.
British Columbia (Attorney
General),
1993 CanLII 75 (SCC),
[1993] 3 S.C.R. 519
R v Kapp
[2008] 2 SCR 483
K. Thimmappa
v Chairman, Central Board of
Directors AIR 2001 SC 467
New Patriotic
Party v Attorney-General
[1993-94] 2 GLR 35.
Ghana Lotto
Operators Association v National
Lottery Authority,[2007-2008]
SCGLR 1088
BOOKS
REFERRED TO IN JUDGMENT
Report of the
Committee of Experts
(Constitution) on Proposals for
a Draft Constitution of Ghana
Halsbury’s
Laws (3rd Edn.) 498).
Indian
Constitutional Law,(LexisNexis
Butterworths Wadhwa, 2009, 5th
Ed.) by Jain,
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
J.S.C:
COUNSEL
PROFESSOR
BONDZI-SIMPSON ( WITH HIM
AGYEI-KODIE NUAMAH) FOR THE
PLAINTIFF.
HON. MARTIN
AMIDU ( ATTORNEY GENERAL) WITH
HIM SYLVESTER WILLIAMS (
PRINCIPAL STATE ATTORNEY ) FOR
THE DEFENDANT
______________________________________________________________________
J U D G M E N
T.
______________________________________________________________________
ATUGUBA,
J.S.C:
In modern
times the courts have shed much
of their conservatism in the
construction of statutes. The
purposive rule of construction
is now the dominant rule for the
construction of statutes. This
in effect gives reality a
triumph over dogmatic theories
of law. However the
ascertainment of the true
purpose of a statute has to be
watched so as to prevent
conjectures of all sorts having
an undue sway on the
construction of statutes. In
this connection certain rules of
construction of statutes should
now gain more weight than they
had before. Some of them are,
that, as Taylor JSC said in
Mekkaoui
v. Minister of Internal Affairs
(1981) GLR 664 S.C. at 719:
“I believe it is now trite law
and there is no need to cite any
authority to support it, that in
all statutes, the legislature or
the lawgiver is presumed to have
legislated with reference to the
existing state of the law.”
Very similar to this view is the
view that the context of the
statute inclusive of its
surrounding circumstances are
relevant matters to its proper
construction – per Lord Simmonds
in
Attorney-General v. Ernest
Augustus (Prince) of Hanover
(1957) AC 436 at 461 H.L.
Happily all this has been
captured by the
Memorandum to the
Interpretation Act, 2009 (Act
792) as follows:
“The general
rules for the construction or
interpretation used by the
Courts were formulated by the
Judges and not enacted by
Parliament. From the Mischief
Rule enunciated in
Heydon’s
Case [1584 3 Co Rep. E.R. 637]
to the Literal Rule enunciated
in the
Sussex Peerage Case [(1844) 11
Co & F 85; E.R. 1034], to
the Golden Rule enunciated in
Grey v.
Pearson [(1857) 6 H.L. C. 61; 10
E.R. 1216]
the courts in the Commonwealth
have now moved to the Purposive
Approach to the interpretation
of legislation and indeed of all
written instruments. The Judges
have abandoned the strict
constructionist view of
interpretation in favour of the
true purpose of legislation.
The Purposive
Approach to
interpretation takes account
of the words of the Act
according to their ordinary
meaning as well as the context
in which the words are used.
Reliance is not placed solely on
the linguistic context, but
consideration is given to the
subject-matter, the scope, the
purpose and, to some extent, the
background. Thus with the
Purposive Approach to the
interpretation of legislation
there is no concentration on
language to the exclusion of the
context. The aim, ultimately, is
one of synthesis. …
Clause (2) of
article 1 of the Constitution
1992,
places the Constitution on a
pedestal high above that of the
ordinary law of the land. The
Constitution is the supreme law.
A law found to be inconsistent
with, or in contravention of, a
provision of the Constitution is
void to the extent of the
inconsistency or the
contravention. The Constitution
is thus not an ordinary law of
the land. It is a legal document
as well as a political
testament. It embodies the soul
of our people in a sense that
the ordinary law cannot achieve.
It is organic in its conception
and thus allows for growth and
progressive development of its
own peculiar conventions.
Indeed, in obvious and subtle
ways it is an instrument of
rights and limitations and not a
catalogue of powers.
But section 1
of the Interpretation Act, 1960
subjects the interpretation of
the Constitution to that Act.
Thus an inferior law is made the
vehicle by which the
construction of the supreme law
of the land is determined. In
this sense the Constitution is
subordinated by an inferior law.
It detracts from the
Constitution’s supremacy. This
Bill seeks, among other things,
to do away with that concept. By
that process the construction
and interpretation of the
Constitution, 1992 will not be
tied down by the Interpretation
Act but will take account of the
cultural, economic, political
and social developments of the
country without recourse to
amendments which can be avoided
if the spirit of the
Constitution is given its due
prominence. A Constitution is a
sacred document. It must of
necessity deal with facts of the
situation, abnormal or usual. It
will grow with the development
of the nation and face
challenging changes and new
circumstances. It must be
allowed to germinate and develop
its own peculiar conventions and
construction not hampered by
niceties of language or form
that would impede its singular
progress.
In musical
terms the interpretation and
construction of the Constitution
should involve the interplay of
forces that produce a melody and
not the highlighting of the
several notes.” In other words,
the legislative intent behind
section 10(4) of the
Interpretation Act, 2009 (Act
792) appears to be to set the
courts relatively free from the
usual aids to construction of
ordinary enactments and to
oblige the courts to apply the
purposive approach outlined in
that provision, when construing
the 1992 Constitution.”
(e.s.)
Consequently,
section 10(4) of the
Interpretation Act, 2009 (Act
792) provides as follows:
“10(4)
Without prejudice to any other
provision of this section a
court shall construe or
interpret a provision of the
Constitution or any other law in
a manner
(a)
that
promotes the rule of law and the
values of good governance,
(b)
that
advances human rights and
fundamental freedoms,
(c)
that
permits the creative development
of the provisions of the
Constitution and the laws of
Ghana, and
(d)
that
avoids technicalities and
niceties of form and language
which defeats the purpose and
spirit of the Constitution and
the laws of Ghana.”(e.s.)
The context
and background to the impugned
provisions
What then is the context or
background to the impugned
provisions? This is revealed by
paragraphs 374 to 381 of the
Report of
the Committee of Experts
(Constitution) on Proposals for
a Draft Constitution of Ghana
at 175-176 as follows:
“
CHAPTER SEVENTEEN
CITIZENSHIP
374. The
Committee considered the
recommendations in the NCD
report that the question of
prohibition of
dual
citizenship for Ghanaians as
provided in the 1979
Constitution should be examined
by it. Our law provides among
others, that if a Ghanaian of
full age voluntarily swears
allegiance to another country
and becomes a citizen of that
country then he loses his
Ghanaian citizenship. The issue
before the Committee was
whether
there was any justification for
altering this law so as to
enable Ghanaians acquiring the
nationalities of other countries
to retain their status as
Ghanaian citizens. On this
opinion was divided.
375. One view
was that the Committee could not
dismiss the question of
allegiance which is indeed
at the root of citizenship. A
country owes specific duties to
its citizens; for example it is
its responsibility to evacuate
them in times of war or crisis
from any foreign land – There is
reciprocal responsibility of the
citizen not to engage in acts
that would put the security of
his country at risk, to mention
just one duty. The question of
allegiance should therefore not
be taken lightly.
As the
Akufo-Addo report stated:
“we do not
want an occasion
where
allegiance to Ghana is shared
with
allegiance to some other
country.”
The opposite view was that such
a dual citizenship could be
justified.
376.
Citizenship in most countries
today is a requirement for
securing a job and most Ghanaian
emigrants into other countries
cannot avail themselves of such
a facility because they do not
want to lose their Ghanaian
citizenship.
377. The
above apart, the idea of
“economic refugees” status of
most Ghanaians has become a
reality of Ghana today. Whatever
the moral objections that may be
to this to reality, it is an
acknowledged fact that most of
these refugees invariably bring
home their economic gains
abroad. Some invest such gains
in useful ventures which
compliment the domestic
mobilisation of financial
resources to national
development.
378. This
fact is underscored in the light
of the constitutional proposal
that if a person is to stand for
election in a constituency he
must be ordinarily resident in
the area. Ordinary residence has
been given an expanded meaning
to include identification of a
person with the area in terms of
visits and participation in the
development efforts of the area.
380. It has
been observed, over the years,
that most of the so-called
economic refugees have made
substantial contributions to the
development efforts of their
respective communities in Ghana.
381. Thus, a
case could be made for
permitting dual citizenship to
Ghanaians, a situation which
would not only alleviate the
misery of many Ghanaians abroad,
but would also open up prospects
of indirect external financial
mobilisation for national
development.” (e.s.)
Quite clearly then the Committee
of Experts had diagnosed the
policy reason why before then
dual citizenship was
constitutionally, except for
involuntary situations,
disallowed in Ghana, namely the
risk of reliable allegiance to
Ghana from a dual citizen. The
Committee then felt that since
Ghanaians in the diaspora were
contributing by way of heavy
monetary remittances to and
investment in Ghana and since
dual citizenship helped them to
access employment outside Ghana,
dual citizenship should be
allowed. This recommendation
cannot reasonably be understood
as requiring allowance of the
acquisition of dual citizenship
in Ghana without any regard to
the risk factor of allegiance to
Ghana involved.
Consequently, as I understand
the impugned provisions in this
case, they seek to cater for
both interests namely, the risk
of allegiance and the need to
allow dual citizenship.
The Equality
argument
Professor
Bondzi-Simpson held us in
intellectual captivity without
bail for many days unless we
conceded that article 8(2) of
the Constitution inserted by the
Constitution of the Republic of
Ghana (Amendment) Act, 1996 (Act
527) and section 16(2) of
the
Citizenship Act, 2000 (Act 591)
which extended the ban, in
article 8(2) on the dual citizen
of Ghana from holding certain
specified offices are,
unconstitutional for infringing
the entrenched provisions of
articles 15(1) and 17 relating
to Equality of persons before
the law and freedom from inhuman
and degrading treatment, without
compliance with the
Constitutional procedure for
amending entrenched provisions
of the Constitution and in any
case in substantially infringing
them to an extent impermissible
by accepted principles relating
to constitutional amendments.
To begin with
it seems to me that citizenship
is a matter of state sovereignty
and has a unique and intricate
character which has been
specially dealt with in Chapter
3 of the Constitution and
therefore the verba generalia of
the fundamental human rights
provisions of Chapter 5 have to
be applied with caution in
relation to the specialibus of
Chapter 3. Consequently there
are varieties of citizenship
with varying rights in Chapter 3
itself. Thus in
Govindan
Sellappah Nayar Kodakan Pillai
v. Punchi Banda Mudanayake & Ors
(1955) 2 All E.R. 833. P.C.
the head notes state as follows:
“By the
Ceylon (Constitution and
Independence Order in Council,
1946 (as amended), s. 29: “(1)
Subject to the provisions of the
order, Parliament shall have
power to make laws for the
peace, order and good government
of the island. (2) No such law
shall – … (b) make persons of
any community or religion liable
to disabilities or restrictions
to which persons of other
communities or religions are not
made liable …”
The appellant, an Indian Tamil
living in Ceylon who was born in
India, whose application to have
his name entered on the register
of electors was rejected on the
grounds that he was not a not
citizen of Ceylon within the
meaning of the Citizenship Act,
No. 18 of 1948, contended s.4
and s.5 of that Act (which laid
down the qualifications
necessary for a person born
outside Ceylon to become a
citizen of Ceylon), and the
Ceylon (Parliamentary Elections)
Order in Council, 1946, s. 4(1)
(a), as amended by the Ceylon
(Parliamentary Elections)
Amendment Act, No. 48 of 1949
(which provided, inter alia,
that no person should be
qualified to have his name
entered in any register of
electors in any year if he was
not a citizen of Ceylon), were
ultra vires s. 29(2) (b) of the
Ceylon (Constitution And
Independence) Order in Council,
1946, in that they imposed a
disability or restriction on the
Indian Tamil Community in
Ceylon.
Held: the Acts in
question were intra vires of the
Ceylon legislature since the
legislation concerned was
legislation on citizenship, and
it was a natural and legitimate
function of the legislature of a
country to determine the
composition of its nationals;
standards of literacy, of
property, of birth or of
residence were standards which a
legislature might think it right
to adopt in legislation on
citizenship and did not create
disabilities in a community as
such, since the community was
bound together by its race or
its religion and not by its
illiteracy, its poverty or its
migratory character.
Appeal
dismissed.
[Editorial
Note.
In reaching their conclusion in
the present case the Judicial
Committee applied to the problem
before them the same test as had
been applied to determine the
validity of legislation in
Canada and Australia, viz., what
was the pith and substance, the
true character, of the
legislation challenged (see p.
838, letter B. post). A
consequence of the application
of this principle in relation to
provincial legislation in Canada
has been that if the legislation
challenged is truly within a
description of legislative power
ascribed to a provincial
legislature it is immaterial
that incidentally it affects a
matter assigned to the central
legislature (see
HALSBURY’s LAWS (3rd
Edn.) 498). Regard is had to
what is the true essential
character of the legislation in
issue. In reaching their
conclusion, the Judicial
Committee considered that, as
regards evidence, they ought to
take judicial notice of such
matters as reports of
parliamentary commissions and
such other facts as should be
assumed to be within the
contemplation of the legislature
when the legislation was passed
(see p. 837, letter D, post) …”
It is therefore noticeable that
unless amended, only a Ghanaian
citizen by birth can be a
president or vice-president of
Ghana, see articles 60(3) and
62(a). Nor can a dual citizen be
a member of Parliament, a
speaker or deputy speaker of
Parliament, see articles 94(2)
(a), 95(1) and 96(3).
Furthermore a person who
acquires citizenship otherwise
than by birth may through the
High Court be deprived of such
citizenship whereas a Ghanaian
citizen by birth cannot be so
deprived. Therefore this
constitutional framework on
citizenship contemplates some
necessary discrimination or
inequality in citizenship. It is
noticeable that this variation
in citizenship rights is not
arbitrary but based on the need
for security of allegiance to
the state of Ghana proportionate
to the type of office of state
involved. In particular the dual
Ghanaian citizen is a unique
creature of the Constitution as
amended. He was hitherto
proscribed by the Constitution
(save in very limited
situations) because he would
pose a much greater threat to
national loyalty since he will
be torn in loyalty between two
or more countries, and therefore
the question of equality of
rights in relation to him simply
did not arise. What his rights
should be upon being let into
dual citizenship of Ghana can
only depend on what has been
conferred on him by the
Constitution, with due regard
for national security as
evidenced by the limitations on
the holding of certain offices.
The Security
of the State
The plaintiff’s argument that a
Ghanaian dual citizen has
inviolable equality of rights
with all other persons under
articles15(1) and 17 also
ignores articles 12(2) and 17(5)
which subject the fundamental
human rights and freedoms to,
inter alia, respect for the
public interest. Therefore at
the time of the constitutional
amendment allowing dual
citizenship in Ghana there was
in place constitutional policy
inter alia, articles 12(2) and
17(5) in favour of the public
interest which could not be
ignored and was not ignored.
Thus in R
v Secretary of State for the
Home Department, Ex parte
Puttick [1981] 1 All ER 776,
the head note adumbrates this
point as follows:
“The
applicant was a German citizen
who committed serious crimes in
Germany. She obtained entry into
the United Kingdom on a false
passport in the name of another
German citizen and, using that
name, went through a marriage
ceremony with a United Kingdom
citizen at a register office and
signed the marriage certificate
in that name. The German
authorities discovered her real
identity and began extradition
proceedings. In order to avoid
extradition the applicant
applied to the Secretary of
State in her real name for
registration as a United Kingdom
citizen under s. 6(2) of the
British Nationality 1948 Act.
The Secretary of State refused
her application and on appeal
the Court of Appeal refused to
grant her leave to apply for
judicial review of the Secretary
of State’s decision. The
applicant then applied to the
court for a declaration of the
validity of her marriage. On the
hearing of that application the
court determined ([1979] 3 All
ER 463) that the marriage was
valid but exercised its
discretion by refusing to make a
declaration of validity.
Subsequently the Secretary of
State, although accepting the
court’s decision that the
applicant’s marriage was valid,
affirmed his refusal to register
her as a United Kingdom citizen
unless the court directed
otherwise. The applicant applied
for an order of mandamus
requiring him to register her as
a United Kingdom citizen on the
grounds that she fulfilled the
express terms of s 6(2) for
registration, she was not
affected by any disqualifying
provisions of the Act, and
therefore she has an absolute
entitlement to be registered
under s 6(2) and her
registration thereunder was
mandatory. The Secretary of
State submitted that, even
though the applicant fulfilled
the requirements of s 6(2), he
was entitled in an exceptional
case to refuse registration on
the grounds of public policy.
Held
– Where there was a statutory
duty involving the recognition
of some right, then,
notwithstanding the mandatory
nature of the terms imposing
that duty, it was nevertheless
subject to the limitation that
the right would not be
recognised if the entitlement to
it had been obtained by criminal
activity and (per Donaldson LJ)
to the limitations implied by
the principles of public policy
accepted by the courts at the
time when the statute was
passed. It followed that the
Secretary of State was not bound
to give effect to an entitlement
to registration under s 6(2) of
the 1948 Act which had been
directly obtained by criminal
activity, because (per Donaldson
LJ) it was well established when
the 1948 Act was passed that
public policy required the
courts to refuse to assist a
criminal to benefit from his
crime. Since the applicant had
achieved her marriage, and
therefore her entitlement to
registration under s. 6(2), by
the crimes of fraud, forgery and
perjury, and could not claim to
be entitled to registration
without relying on her
criminality, the Secretary of
State was entitled, despite the
mandatory terms of s 6(2), to
refuse to register her as a
United Kingdom citizen. The
application for mandamus would
therefore be dismissed.” (e.s.)
Parliament, as aforesaid,
amended the 1992 Constitution of
Ghana to admit dual citizenship
but without disregard for the
element of risk to stable
allegiance to Ghana. Hence even
though article 94(2)(a) is not
an entrenched provision it
nevertheless did not delete it
but expressly retained it. It is
obvious that the expressio
unius est exclusio alterius
rule cannot exclude articles
95(2)(c) and 96(3). Nor in the
same vein can articles 60(3) and
62(a) be reasonably contemplated
as prejudiced by the amendment.
It is striking that Sri Lanka
has similar thinking on this
matter as Ghana. Thus in
Peters
and Another v. Attorney General
and Another [2000] 3 LRC 32,
the head note teaches thus:
“On 11
December 2000 the appellants, P
and C were elected to the House
of Representatives in Trinidad
and Tobago. The second
respondents, Farad Khan and
Franklin Khan, were the defeated
candidates in, respectively, P
and C’s constituencies. The
second respondents applied under
s 52 of the Constitution and s
106(1) of the Representation of
the People Act 1967 (‘the RPA’)
for leave to bring election
petitions challenging the
election of each of the
appellants on the basis that
each was disqualified for
election by s 48 of the
Constitution since he held, in
addition to citizenship of
Trinidad and Tobago, citizenship
of another country. Those
applications for leave were
heard and granted, ex parte. The
appellants filed constitutional
motion under s 14(1) of the
Constitution of Trinidad and
Tobago, which provided that ‘if
any person alleges that any of
the provisions of this Chapter
has been, is being, or is likely
to be contravened in relation to
him, then without prejudice to
any other action with respect to
the same matter which is
lawfully available, that person
may apply to the High Court for
redress by way of originating
motion’, arguing that their
constitutional rights would be
infringed by the election
petitions. The relief sought by
the motion was: a declaration
that the proceedings commenced
by way of election petitions by
the second respondents
contravened the appellants’
fundamental human rights
guaranteed by the Constitution
since they had been obtained ex
parte, since they were entitled
to have the matters in the
petitions interpreted in
proceedings from which there
was a right of appeal to the
Privy Council; a declaration
that the election petitions were
incapable of terminating their
membership of the House of
Representatives, were null and
void and of no effect and were a
contravention of the
‘subordinate legislative powers
of the Rules of Committee and of
the President’; and a
declaration that each appellant
was ‘duly qualified to be, and
is entitled to remain, a member
of House of Representatives duly
elected.’ The appellants
therefore sought by their
constitutional motions not only
to have the Election Court
declared incompetent to pass on
the validity of their election
but also to have the
Constitutional Court determine
the issue of their qualification
to be elected to the House of
Representatives. The trial judge
dismissed the motions and the
appellants appealed to the Court
of Appeal.
HELD:
… (5) Per de la Bastide CJ
(Nelson JA concurring). In
considering whether a citizen of
Trinidad and Tobago was becoming
a citizen of another country, by
his voluntary act, disqualified
from election to the House of
Representative, it was necessary
to look at ss47, 48 and 49 of
the Constitution. Section 47,
subject to s 48, laid down the
primary qualification for
election – that a person had to
be a citizen of Trinidad and
Tobago for two years immediately
before the date of his
nomination or be domiciled and
resident in Trinidad and Tobago
at that date. Section 48(1) (a)
disqualified those who were
citizens of a country other than
Trinidad and Tobago, having
become such citizens
voluntarily, or were under a
declaration of allegiance to
such a country. Whilst the 1998
amendment to the Citizenship of
the Republic of Trinidad and
Tobago Act 1976 had made dual
citizenship possible, the
meaning of s 48(1) (a) was too
clear for it to be interpreted
out of existence. It was not as
though giving it its plain
meaning produced a palpably
absurd result – it was clearly
not the policy of the
Constitution to confer the right
to be elected to the House of
Representatives on every citizen
of Trinidad and Tobago. It was
conceivable that there was good
reason for withholding that
right from those citizens who
had voluntarily acquired the
citizenship of another country,
even though the acquisition of
that citizenship no longer
resulted in the forfeiture of
Trinidad and Tobago citizenship.
It was for Parliament, and not
for the courts, to decide
whether the voluntary
acquisition of a second
citizenship was to continue to
disqualify a person from
election to Parliament. If that
produced a result which was no
longer considered desirable in
the light of the liberalisation
of the law relating to dual
citizenship, then it was the
function of the Parliament to
amend or repeal the law. For
the court to do so would amount
to a clear usurpation of the
legislative function which could
not be justified by claims to be
interpreting the Constitution as
a living instrument.” (e.s.)
In the case of Ghana not only
have the impositions on offices
that are not open to the dual
citizen been retained but they
have been expanded by the
impugned provisions. It is
noticeable from the offices
which cannot be held by a dual
citizen of Ghana that they are
all high profile or leadership
positions (see article 286(5))
which involve confidentiality
and unalloyed allegiance to
Ghana and if some other
countries do not consider them
to be such Ghana is not
precluded from doing so. Dual
loyalty has been denounced in
the book of the Universe, the
Bible. In the Holman Illustrated
Study Bible, Matthew chapter 16
verse 24 states thus:
“No one can
be a slave to two masters, since
either he will hate one and love
the other, or be devoted to one
and despise the other. You
cannot be slaves of God and of
money.” (e.s.)
A
classic example of the dangers
of dual loyalty is given in the
First Book of Samuel Chapter 29,
verses 1 to 11:
“Philistines
Reject David
29
The
Philistines brought all their
military units together at Aphek
while Israel was camped by the
spring in Jezreel.
As
the Philistine leaders were
passing [in review with their
units of] hundreds and
thousands, David and his men
were passing [in review] behind
them with Achish.
Then
the Philistine commanders asked,
“What are these Hebrews [doing
here]?”
Achish
answered the Philistine
commanders, “That is David,
Servant of King Saul of Israel.
He has been with me a
considerable period of time.
From the day he defected until
today, I’ve found no fault with
him.”
The
Philistine commanders, however,
were enraged with Achish and
told him, “Send that man back
and let him return to the place
you assigned him. He must not go
down with us into battle only to
become our adversary during the
battle. What better way could he
regain his master’s favor than
with the heads of our men?
Isn’t
this the David they sing about
during their dances:
Saul has
killed his thousands,
but David his
tens of thousands.?”
So
Achish summoned David and told
him, “As the Lord lives, you are
an honourable man. I think it is
good to have you working with me
in the camp, because I have
found no fault in you from the
day you came to me until today.
But the leaders don’t think you
are reliable.
Now
go back quietly and you won’t be
doing [anything] the Philistine
leaders think is wrong.”
“But
what have I done?” David replied
to Achish. “From the first day I
was with you until today, what
have you found against your
servant to keep me from going
along to fight against the
enemies of my lord the king?”
Achish
answered David, “I’m convinced
that you are as reliable as an
angel of God. But the Philistine
commanders have said, ‘He must
not go into battle with us.’
So
get up early in the morning, you
and your masters’ servants who
came with you. When you’ve all
gotten up early, go as soon it’s
light.”
So
David and his men got up early
in the morning to return to the
land of the Philistines. And the
Philistines went up to Jezreel.”
At least
Ghana has had some experience in
this sphere of loyalty not long
ago. Even in a game of football
Ghanaians and the world would
recall the fears held when
Ghana’s National team, the Black
Stars were to meet Serbia in the
2010 World Cup opening match
since the coach of the Black
Stars Milovac Rajevac was a
Serbian. There were fears as to
his loyalty to the interests of
Ghana represented by the Black
Stars. When Ghana beat Serbia
one nil, the Serbian coach
Milovac Rajevac visibly had to
restrain himself from any
reaction whatsoever. That
notwithstanding his home in
Serbia was attacked by Serbians.
This situation arose even though
Rajevac was not even a Ghanaian
citizen! His country could not
forgive his apparent breach of
allegiance to it.
All these
concerns are confirmed by the
Memorandum that accompanied the
Constitution of the Republic of
Ghana (Amendment) Bill as
follows:
“
MEMORANDUM
The object of this Bill is to
amend the Constitution to revise
or repeal some provisions that
have created difficulties in
their implementation or the
continued existence of which is
considered not justified for the
reasons given.
Clause 1: following the numerous
petitions to government on the
issue of dual citizenship,
particularly from Ghanaians
resident outside the country,
coupled with the known sizeable
contribution towards national
development made by these
Ghanaians, government considers
it appropriate that the
constitutional provision which
prohibits dual citizenship for
Ghanaians should be repealed.
Pursuant to this, clause 1 of
this Bill repeals article 8 of
the Constitution which deals
with the prohibition of dual
citizenship and substitutes a
new article 8. The proposed
article 8(1) states that a
citizen of Ghana may hold the
citizenship of any other country
in addition to his Ghanaian
citizenship. However, one cannot
overlook the fact that it is
absolutely essential that
certain offices must be held by
persons who owe allegiance only
to Ghana. For this reason,
exceptions to this general
provision have been provided in
the proposed article 8(2) in
respect of specific crucial
public offices.” (e.s.)
This stance
is reinforced by article 35(5)
and (6) (a) thus:
“(5) The
State shall actively promote the
integration of the people of
Ghana and prohibit
discrimination and prejudice on
the grounds of place of origin,
circumstances of birth, ethnic
origin, gender or religion,
creed and other beliefs.
(6) Towards
the achievement of the
objectives sated in clause (5)
of this article, the State shall
take appropriate measures to –
(a) foster a
spirit of loyalty to Ghana that
overrides sectional, ethnic and
other loyalties;” (e.s.)
This latter
provision is well served by,
inter alia, the impugned
provisions. Certainly the
Ghanaian society will be better
integrated if the causes of
suspicion on grounds of loyalty
to Ghana are removed by not
allowing access to sensitive
public positions which involve
potential conflict of national
loyalties.
Article 284
also provides:
“CONFLICT OF
INTEREST
284. A public
officer shall not put himself in
a position where his personal
interest conflicts or is likely
to conflict with the performance
of the functions of this
office.”
The allowance of the holding of
sensitive offices by persons of
dual citizenship will certainly
run counter to this provision.
For these reasons I also share,
though with reversionary
caution, the idea of positive
discrimination held by my
allodially learned brother Dr.
Date-Bah JSC, as being within
the contemplation of the
Constitution. In this regard,
see Nartey v. Gati [2010] SCGLR
745, Customs, Excise &
Preventative Service v. National
Labour Commission and
Attorney-General [2009] SCGLR
530 and Minister of Defence v.
Potsane (2002) 3 LRC 579. The
latter two cases uphold
different treatment for the
Security Services, such as the
army.
Conclusion
In conclusion
I hold that the impugned
provisions are intended to
protect the interest of Ghana as
far as crucial loyalty to Ghana
is concerned and since such
provisions are permissible in
the public interest by articles
12(2), 17(5), 35(5) and 6(a)
they are not only sound but also
their introduction does not
involve any amendment of the
provisions of the Fundamental
Human Rights because they allow
such provisions to co-exist with
them when introduced. Article 8
is not an entrenched provision
and was therefore validly
amended.
The power of the Minister to add
to the list of offices which are
not open to a dual citizen is
not as frightful or open-ended
as it appears, for inter alia,
it has to be read ejusdem
generis with the preceding
offices enumerated but it cannot
be validly exercised by a
legislative instrument as
provided by section 16(2) of the
Citizenship Act, 2000 (Act 591)
instead of an Act of Parliament
as provided by article 8(2) (g).
It is clear that article 295(1)
which defines an Act does not
include a legislative instrument
which is a matter governed not
by article 106 but by article
11(7) read together with the
definition of “statutory
instrument” under article 295(1)
and section 1 of the
Interpretation Act, 2009 (Act
792) . Even there, a further
question arises as to the
constitutionality of Article
8(2) (g) itself relating to a
simple Act of Parliament which
is governed by article 106 as
opposed to the procedure for the
amendment of the Constitution
laid down in respect of
non-entrenched provisions by
article 291. But since
Parliament could amend the
Constitution to introduce dual
citizenship it could make
provisions relating to the
rights and duties of the dual
citizen as a new and special
matter as it did, inclusive of
article 8(2) (g). See by analogy
article 285(j) and, if necessary
article 296 (c). There is a
further possible answer namely,
to hold that articles 289(2) (a)
and 291 have been indirectly or
impliedly amended as far as the
power given in article 8(2) (g)
is concerned since that
provision itself has been duly
passed in accordance with those
articles. In view of the
provisions of section 10(4) (a)
(c) and (d) of the
Interpretation Act, supra, the
Memorandum to that Act which,
inter alia, requires an
interpretation of the
Constitution which as much as
possible avoids the necessity of
its amendment and the principles
laid down in
Tuffour
v. Attorney-General (1980) GLR
637 C.A. (sitting as the
Supreme Court) as to the organic
nature of the Constitution I
would also sustain this latter
view.
As far the provisions relating
to certification of dual
citizenship status are
concerned, after long reflection
I think the Indian example
suffices. In
Hari
Shanken Jain v. Gandi [2002] 3
LRC 562 the Indian Supreme
Court held that a citizenship
registration certificate creates
a rebuttable presumption of such
citizenship. The certification
provisions therefore cannot
validly go further than that.
Subject to this last
qualification I would also
dismiss the plaintiff’s action.
(SGD) W. A. ATUGUBA
ACTING CHIEF JUSTICE
AKUFFO, (MS)
JSC.
I have been
privileged to read beforehand
the opinion read by my esteemed
Brother, Dr, Date-Bah, and I
agree generally with the
conclusions he has arrived.
However, I have serious
misgivings concerning the
constitutionality of section
16(2) of the Citizenship Act,
2000 (Act 591).
Citizenship
(whether or not on a dual or
multiple basis) of a country is
a precious right which carries
with it invaluable privileges.
The means by which any of these
rights and privileges may be
limited are normally governed by
clear legal provisions, because
such limitations derogate from
the incidents of citizenship.
Thus, in the case of Ghanaians
with dual citizenship, the
limitations imposed on their
eligibility to hold public
office are set by article 8(2)
of the Constitution, as amended
by the Constitution of the
Republic of Ghana (Amendment)
Act, 1996 (Act 527) which
provides that:-
“... no
citizen of Ghana shall qualify
to be appointed as a holder of
any office specified in this
clause if he holds the
citizenship of any other country
in addition to the citizenship
of Ghana:
(a)
Ambassador or High Commissioner
(b)
Secretary to the cabinet
(c)
Chief of Defence Staff or any
Service Chief
(d)
Inspector-General of Police
(e)
Commissioner, Customs, Excise
and Preventive Service
(f)
Director of Immigration Service
and
(g) any
office specified by an Act of
Parliament
Hence, dual
citizens of Ghana are
prohibited, by the Constitution,
from holding these listed
positions. Clause (g) however,
makes it possible for this list
to be expanded by an Act of
Parliament, to include other
positions. Since the
Constitution sets out a certain
and specific list, it follows
that any addition to the list
would amount to an amendment of
the Constitution. It is for this
reason that, in his Statement of
Case, the Plaintiff seeks to
argue that the Act of Parliament
stipulated in the clause is one
that must necessarily comply
with the provisions of Chapter
Twenty-Five of the Constitution,
Article 289 of which provides
that:-
“(1)
Subject to this Constitution,
Parliament may, by an Act of
Parliament, amend any provision
of this Constitution.
(2)
This Constitution shall not be
amended by an Act of Parliament
or altered whether directly
or indirectly unless –
(a)
the sole purpose of the Act is
to amend this Constitution;
and
(b) the
Act has been passed in
accordance with this Chapter.”
In my view,
these clear, specific and basic
requirements for a valid
amendment of the Constitution
were not complied with in the
enactment of Section 16(2) of
Act 591. The long title of the
Act reads as follows:-
“An Act to
consolidate with amendments the
law relating to citizenship of
Ghana, to state in respect of
citizenship by birth the legal
conditions applicable at the
given points in time, to bring
the law in conformity with the
Constitution as amended and to
provide for related matters.”
The declared
purpose of the Act, to my
understanding, is therefore that
it was being enacted to
consolidate and bring into
pursuant effect the amended
provisions of the Constitution.
It was not declared to be,
itself, a constitutional
amendment act. Thus its sole
purpose was not to amend the
Constitution, and as far as the
Ghanaian public is formally
aware, there has been only one
amendment of article 8(2) of the
Constitution, and the terms of
that amendment are those set out
in Act 527. Yet it is clear that
section 16(2) has purported to
amend and alter the provisions
of Article 8(2). These
amendments added to the list of
offices that may not be held by
persons holding dual
citizenship. Additionally, and
of even greater concern, they
also weakened the process
integrity originally envisaged
by the constitutional amendment
Act, by passing downward to the
Minister the power to further
add to the list of prohibited
offices by legislative
instrument. The power thus
conferred on the Minister is
quite excessive, in my view.
Thus, whereas the Constitution
stipulates more stringent
measures and processes at higher
levels for the amendment of its
provisions, under the
Citizenship Act, an even greater
number of persons with dual
citizenship may be disqualified
by way of a mere legislative
instrument issued by a Minister,
thereby by-passing the checks
mounted by the Constitution, in
Articles 291 and 292.
Now, every
provision of the Constitution is
presumed to be there for a
purpose and cannot be
disregarded for the sake of
convenience. Whilst it may be
arguable that the Act of
Parliament referred to in
article 8(2)(g) of the
Constitution (as amended by Act
591) is simply an ordinary Act
of Parliament, passed in
accordance with Article 106, I
am fortified in the position I
have taken to the contrary, by
the well established principle
that in the construction and
interpretation of a
Constitution, every provision
must be given its effect.
Therefore, it must be read as
whole and not as though each
provision exists in isolation,
oblivious of the import of any
other provisions. Yes, an Act of
Parliament to add to the list of
offices is referred to in the
said clause (g). Yet article 289
also states in categorical terms
that an Act of Parliament may
not amend or directly or
indirectly alter the
Constitution unless certain
conditions are met. Doubtlessly,
in enacting the clause,
Parliament was fully aware of
Article 289. Hence, if clause
(g) was intended to create an
exception to the requirements of
article 289 it should have been
so stated therein expressly
that, in respect of the clause,
the said requirements are
excepted. Clearly this was not
done and, therefore, there would
be no justification for reading
any such exception into the
provisions of clause (g). To
hold otherwise would be very
dangerous and make a mockery of
constitutional provisions such
as article 8(2), which
particularise specific matters,
thereby eventually reducing the
Constitution to the status of an
ordinary statute, as evidenced
by what Parliament has attempted
to do in section 16(2) of Act
527.
In my humble
opinion, therefore, the fact
that an ordinary Act of
Parliament undergoes certain
levels of scrutiny before
enactment is not sufficient
justification when there is
clear non-compliance with the
prescribed procedures and
processes stipulated, by the
same Constitution that empowered
Parliament to alter article
8(2), for the enactment of
alterations to the Constitution.
For the foregoing reasons, I am
of the view that the addition of
the offices of:-
Chief Justice
Commissioner, Value Added Tax
Service
Director General, Prisons
Service
Chief Fire Officer
Chief Director of a Ministry and
the rank of a Colonel in the
Army or its equivalent in the
other security services
in section 16
(2) (a), (h) – (l), to the list
of proscribed positions is
unconstitutional. So too is
section 16 (2) (m) which
purports to empower the Minister
to prescribe additional offices
by legislative instrument. I
would, therefore, declare
those provisions null and void.
(SGD) S. A. B. AKUFFO
(MS.)
JUSTICE OF THE SUPREME
COURT
BROBBEY
J.S.C:
I have had
the opportunity of reading all
the opinions expressed in this
case.
My own
opinion which I wrote down
happened to co-incide with much
of the reasoning and conclusions
expressed by Date-Bah JSC.
I therefore
concur with the reasoning and
conclusions expressed by
Date-Bah JSC.
I would grant
the plaintiff’s reliefs 5, 6
and 7 .
All the other
reliefs are dismissed.
(SGD) S. A. BROBBEY
JUSTICE OF THE SUPREME
COURT
DR. DATE-BAH,
J. S. C:
This case
raises intriguing general
questions as to the
constitutionality of new
provisions introduced into an
existing Constitution, where the
new provisions are claimed to be
in conflict with some core
constitutional values and
entrenched provisions embodied
in the existing Constitution.
The
plaintiff’s case invokes the
general idea that for a
constitutional amendment to be
valid, it must not only comply
with the prescribed
constitutional procedure, but
must also measure up to
substantive standards prescribed
by the existing constitution.
In effect, the plaintiff’s
general argument suggests that
modern constitutions embodying
notions of constitutionalism
have a ratchet effect, in the
sense that the standards of
constitutionalism and human
rights contained in them cannot
be effectively diluted, or at
least, not easily. In other
words, an increase in the
fundamental rights of a
constitution will generally be
irreversible, or at least not be
easily reversible. This implies,
to take an extreme example, that
a constitution providing for a
multi-party liberal democracy
cannot be amended to provide for
a dictatorship, even if the
right constitutional procedure
is followed. At the general
level, this is a radical
argument that comes into
conflict with another principle
of democracy, namely, that the
will of the people or of the
electorate shall prevail.
Accordingly, if the popular will
is expressed, through the
prescribed constitutional
procedure, as a constitutional
amendment, do the courts have a
mandate to stand in the way of
the implementation of this
change? This is an issue which,
to an extent, is at the heart of
this case and it is a
fascinating one.
In an article
cited by the plaintiff in
support of the general notion
that constitutionalism imposes a
restriction on the amendments
possible to a constitution, the
author, one Dante B. Gatmaytan
of the University of the
Phillipines, concludes as
follows (in “Judicial Review of
Constitutional Change: Defending
Constitutions with
Constitutionalism”.
Constitutional Adjudication and
Democracy):
“Constitutions are too easily
amended and often times these
exercises are carried out only
to serve the interests of
parties in power. Fortunately,
there is a growing understanding
that constitutionalism is a
function of a constitution. We
should further explore the idea
that changes to the constitution
should always preserve the
elements of constitutionalism.
Courts have assumed an
important role in government of
late – serving as guardians of
the constitution against the
excesses of the other branches
of government. The next logical
step would be to invoke the
power of judicial review to
protect constitutions from
regressive amendments. As I
suggest here, the theoretical
and institutional infrastructure
for defending constitutions
along these lines are already in
place,”
However, the
actual facts of this case make
the choice less stark for this
Court. In my view, the general
question raised above has to be
resolved in relation to
particular constitutions by
reference to the actual language
and spirit of that particular
constitution. In relation to
the Ghanaian Constitution,
therefore, the specific
arguments to be assessed need to
be at a lower level of
abstraction and, indeed, the
arguments of the plaintiff,
which will be set out below,
are.
The facts of
this case are that the
Constitution of the Republic of
Ghana (Amendment) Act, 1996 (Act
527) received the Presidential
Assent on 16th
December 1996. The object of
the Act was to amend the
Constitution of Ghana. Section
1 of the Act provides as
follows:
“Article 8 of
the Constitution is repealed and
the following inserted: Article
8 ofthe Constitution substituted
“ Dual
8.(1) A citizen of Ghana may
hold the citizenship of any
other country in addition to his
Citizenship
citizenship of Ghana
(2)Without
prejudice to article 94 (2) (a)
of the Constitution, no citizen
of Ghana shall qualify to be
appointed as a holder of any
office specified in this clause
if he holds the citizenship of
any other country in addition to
his citizenship of Ghana.
(a) Ambassador or High
Commissioner;
(b) Secretary to the
Cabinet;
(c) Chief of Defence
Staff or any Service Chief;
(d) Inspector-General of
Police;
(e) Commissioner, Customs,
Excise and Preventive
Service;
(f) Director of
Immigration Service; and
(g) any office specified
by an Act of Parliament
(3) Where
the law of a country requires a
person who marries a citizen of
that country to renounce the
citizenship of his own country
by virtue of that marriage, a
citizen of Ghana who is deprived
of his citizenship of Ghana by
virtue of that marriage shall,
on the dissolution of that
marriage, become a citizen of
Ghana.”
Pursuant to
this Constitution of the
Republic of Ghana (Amendment)
Act, 1996 (Act 527), the
Citizenship Act, 2000 (Act 591)
was enacted which contains a
section 16(2) which the
Plaintiff in this action claims
is unconstitutional.
Accordingly, on 27th
June 2011 he filed a writ
invoking the original
jurisdiction of this court,
seeking the following reliefs:
1.
“A Declaration that section
16(2) of the Citizenship Act,
2000 (Act 591) is null, void and
of no effect as it contravenes
the letter and spirit of Article
17 of the 1992 Constitution, in
that the section discriminates
against a Ghanaian citizen who
has acquired the citizenship of
another country by disqualifying
the citizen from holding any of
the offices specified in the
said section.
2.
A Declaration that section 16(2)
of the Citizenship Act, 2000
(Act 591) is null, void and of
no effect as it contravenes the
letter and spirit of Article
15(1) of the 1992 Constitution,
in that the section singles out
Ghanaians who have acquired
citizenships of other countries
and treats them in a way that
violates their dignity as human
beings and doubts their status
as honest citizens capable of
holding high office.
3.
A declaration that the
prohibitions in Section 16(2) of
the Citizenship Act, 2000 (Act
591) deny a Ghanaian who has
acquired the citizenship of
another country the rights to
participate fully in the affairs
of the State and violate the
principle of equal citizenship
which is a bedrock principle of
the 1992 Constitution.
4.
A declaration that the
prohibitions in Section 16(2) of
the Citizenship Act, 2000 (Act
591) are not designed to protect
any compelling, important,
legitimate or even rational
national interest.
5.
A declaration that section 16(2)
of the Citizenship Act, 2000
(Act 591) is null, void and of
no effect as it delegates
excessive, unnecessary and
unreasonable power to the
Minister of Interior to ban
citizens who have acquired the
citizenship of other countries
from holding any public office
that the Minister may prescribe.
6.
A Declaration that the
administrative requirement of
the Republic of Ghana for a dual
citizen to obtain a dual
citizenship card is
discriminatory, unreasonable,
burdensome, serves no legitimate
constitutional purpose and
thereby is null, void and of no
effect as it contravenes the
letter and spirit of Article 17
of the 1992 Constitution.
7.
A Declaration that the
administrative requirement of
the Republic of Ghana for a dual
citizen to obtain a dual
citizenship card is
discriminatory, unreasonable,
burdensome, serves no legitimate
constitutional purpose and
thereby is null, void and of no
effect as it contravenes the
letter and spirit of Article
15(1) of the 1992 Constitution.
8.
An order directing the
Attorney-General, the Minister
of Interior, the Director of
Immigration, their deputies,
agents, or employees or any
other servant or agent of the
Republic to permanently cease
and desist from enforcing
section 16(2) of the Citizenship
Act, 2000 (Act 591) or engaging
in any acts designed to
discriminate against Ghanaians
who have acquired other
citizenships.
9.
An order directing the
Attorney-General, the Minister
of Interior, the Director of
Immigration, their deputies,
agents, or employees or any
other servant or agent of the
Republic to permanently cease
and desist from enforcing
section 16(2) of the Citizenship
Act, 2000 (Act 591) or engaging
in any acts designed to
discriminate against Ghanaians
who have acquired other
citizenships.(sic)
10.
Such further or other orders as
the honourable Supreme Court
will deem fit to make.
11.
Costs for court expenses and
counsel fees.”
The plaintiff
is a Ghanaian citizen who had
his education up to the tertiary
level in Ghana before moving to
reside in the United States of
America, where he is currently
employed as a Professor with the
University of Florida. The
plaintiff claims to have been
active in the public affairs of
Ghana since the late 1970s and
to have continued in this role
since the coming into force of
the 1992 Constitution.
At the
initial oral argument of this
case on 22nd
February, 2012, some members of
the court expressed their
difficulty with the notion that
one part of the Constitution
could be declared
unconstitutional because it was
inconsistent with another part
of the Constitution, but were
more open to considering
arguments challenging the
constitutionality of an Act
amending the Constitution which
contained provisions
inconsistent with existing
provisions of the Constitution.
The plaintiff was offered the
opportunity to question, through
a Supplementary Statement of
Case, the constitutionality of
the new Article 8(2) of the
Constitution, which Parliament
had purported to enact in the
Constitution of Ghana
(Amendment) Act, 1996 (Act
527). Was this constitutional
amendment valid at the point of
enactment? If it was invalid at
the point of enactment, then it
never became a part of the
Constitution and thus this Court
would have jurisdiction under
article 2(1) of the Constitution
to declare it inconsistent with,
or in contravention of, a
provision of the Constitution.
The plaintiff
filed a Supplementary Statement
of Case on 28th
February, 2012 and the first
issue it addressed was:
“whether the purported amendment
(Article 8(2) of the
Constitution of the Republic of
Ghana (Amendment) Act, 1996 (Act
527)) imposing public
office-holder exclusions on
certain citizens of Ghana is
defective, null and void and
therefore unconstitutional?”
The plaintiff’s submission is
that the answer to this question
is in the affirmative. Although
he concedes that a provision
that is lawfully inserted into
the Constitution cannot be said
to be unconstitutional, he
however contends that a
purported Constitutional
amendment which is procured by
unlawful means or even one that
is procured by lawful means that
is inconsistent with the basic
structure of the Constitution is
null and void and
unconstitutional.
In support of
this proposition, the plaintiff
cites the Indian Supreme Court
case of
Kesavananda Bharati v State of
Kerala AIR 1973 S.C. 1461.
The plaintiff’s interpretation
of this case is that it held
that the judiciary could strike
down amendments to the
constitution passed by
Parliament that conflict with
the constitution’s “basic
structure”. In fact what Sikri
CJ actually held in this case
was that: “Article 368 does not
enable Parliament to alter the
basic structure or framework of
the Constitution.” He also held
that: “There are no inherent
limitations on the amending
power in the sense that the
Amending Body lacks the power to
make amendment so as to damage
or destroy the essential
features or the fundamental
principles of the
Constitution.” In other words,
the authority claimed by the
Indian Supreme Court to strike
down amendments in conflict with
the basic structure of the
Indian Constitution was based on
a specific article of that
Constitution and not on any
inherent judicial power.
Secondly, Sikri CJ expressly
conceded that the power of an
Amending Body to amend a
constitution could not be
restricted by an inherent
limitation on the amendment
power intended to preserve the
essential features or
fundamental principles of the
Constitution. This Indian
authority thus comes down on the
side of the ultimate democratic
principle that the will of the
people or of the electorate is
determinative in matters of
constitutional amendment. If
the right amendment procedure is
followed, the courts cannot
prevent even fundamental
principles or essential features
being modified. What the courts
can do is to so interpret such
amendments as to minimize their
impact on such essential
features or fundamental
principles.
The plaintiff
correctly identifies procedural
constraints on constitutional
amendments in Ghana as those set
out in Article 289. More
controversially, he identifies
the substantive constraints on
constitutional amendments as
including “illegality of
amendments that conflict with
fundamental principles of the
Constitution, including an
amendment to create a Caste
system or citizens without full
political rights.” This
substantive constraint is at the
heart of his argument in this
case that the purported new
Article 8(2) of the 1992
Constitution is
unconstitutional.
Article 289
of the 1992 Constitution, which
is referred to above, reads as
follows:
“(1) Subject to the provisions
of this Constitution, Parliament
may, by an Act of Parliament,
amend any provision of this
Constitution.
(2) This Constitution shall not
be amended by an Act of
Parliament or altered whether
directly or indirectly unless -
(a) the sole purpose of the Act
is to amend this Constitution;
and
(b) the Act has been passed in
accordance with this Chapter.”
The
provisions of Chapter 3 of the
Constitution, which deal with
citizenship, are not entrenched
and therefore can be amended by
Parliament without any need for
a referendum, among other
requirements, on the Bill
proposing to amend those
provisions. On the other hand,
provisions contained in Chapter
5 of the Constitution, which
deal with Fundamental Human
Rights and Freedoms, are
entrenched and may only be
amended by Parliament after a
referendum, among other
requirements.
Article
290(2) to (6) provides as
follows:
“(2) A bill for the amendment of
an entrenched provision shall,
before Parliament proceeds to
consider it, be referred by the
Speaker to the Council of State
for its advice and the Council
of State shall render advice on
the bill within thirty days
after receiving it.
(3) The bill shall be published
in the Gazette but shall not be
introduced into Parliament until
the expiry of six months after
the publication in the Gazette
under this clause.
(4) After the bill has been read
the first time in Parliament it
shall not be proceeded with
further unless it has been
submitted to a referendum held
throughout Ghana and at least
forty percent of the persons
entitled to vote, voted at the
referendum and at least
seventy-five percent of the
persons who voted cast their
votes in favour of the passing
of the bill.
(5) Where the bill is approved
at the referendum, Parliament
shall pass it.
(6) Where a bill for the
amendment of an entrenched
provision has been passed by
Parliament in accordance with
this article, the President
shall assent to it.”
The
plaintiff, therefore, argues as
follows in his Statement of Case
in relation to article 8(2):
“13. It
is respectfully submitted that
an attempted amendment of any
part of the Constitution that
has the effect of diluting or
extinguishing the rights
entrenched by Articles 17, 15
and 55(10) is impermissible and
unconstitutional in so far as
the attempted amendment does not
follow the procedure outlined in
Article 290.
14.
Parliament clearly did not
follow the procedures outlined
in Article 290 when it inserted
Article 8 (2) in 1996.
15.
Plaintiff does not argue that
Parliament cannot extinguish the
rights entrenched by Article 17,
15 and 55 (10). Rather,
Plaintiff is simply asserting
that Parliament must use the
proper procedures to amend the
Constitution, if Parliament
seeks to disturb those
fundamental rights, which inured
to dual citizens recognized in
the 1992 Constitution.
16.
Parliament has no authority to
use an ordinary amendment
process to insert a new clause
in the Constitution, which has
the effect of disturbing
provisions that are entrenched
by the Constitution and which
extinguishes rights that are
deemed fundamental and requiring
of heightened protection.
17. The
fundamental rights defined by
the Constitution are not to be
treated as statutory rights
subject to the whims of
Parliament and Parliamentary
majorities.”
The plaintiff
accordingly contends that if
Article 8(2) is not held to be
void and unconstitutional it
would have the effect of
amending articles 55(10), 17 and
15(1) of the 1992 Constitution,
without following the prescribed
procedure.
Article
55(10) provides as follows:
“(10) Subject to the provisions
of this constitution, every
citizen of voting age has the
right to participate in
political activity intended to
influence the composition and
policies of the Government.”
Article 17
also states that:
“(1) All persons shall be equal
before the law.
(2) A person shall not be
discriminated against on grounds
of gender, race, colour, ethnic
origin, religion, creed or
social or economic status.
(3) For the purposes of this
article, "discriminate" means to
give different treatment to
different persons attributable
only or mainly to their
respective descriptions by race,
place of origin, political
opinions, colour, gender,
occupation, religion or creed,
whereby persons of one
description are subjected to
disabilities or restrictions to
which persons of another
description are not made subject
or are granted privileges or
advantages which are not granted
to persons of another
description.
(4) Nothing in this article
shall prevent Parliament from
enacting laws that are
reasonably necessary to provide
-
(a) for the implementation of
policies and programmes aimed at
redressing social, economic or
educational imbalance in the
Ghanaian society;
(b) for matters relating to
adoption, marriage, divorce,
burial, devolution of property
on death or other matters of
personal law;
(c) for the imposition of
restrictions on the acquisition
of land by persons who are not
citizens of Ghana or on the
political and economic
activities of such persons and
for other matters relating to
such persons; or
(d) for making different
provision for different
communities having regard to
their special circumstances not
being provision which is
inconsistent with the spirit of
this Constitution.
(5) Nothing shall be taken to be
inconsistent with this article
which is allowed to be done
under any provision of this
Chapter.”
Finally, article 15 says:
“(1) The dignity of all persons
shall be inviolable.
(2) No person shall, whether or
not he is arrested, restricted
or detained, be subjected to -
(a) torture or other cruel,
inhuman or degrading treatment
or punishment;
(b) any other condition that
detracts or is likely to detract
from his dignity and worth as a
human being.
(3) A person who has not been
convicted of a criminal offence
shall not be treated as a
convicted person and shall be
kept separately from convicted
persons.
(4) A juvenile offender who is
kept in lawful custody or
detention shall be kept
separately from an adult
offender.”
The
plaintiff’s general case in
respect of the constitutionality
of Article 8(2) of the
Constitution is that it
constitutes a purported
amendment of the Constitution
which was never valid because it
infringed the above three
entrenched fundamental human
rights embodied in Chapter 5 of
the Constitution. Accordingly,
the procedure for amending
entrenched clauses of the 1992
Constitution should have been
followed. Not having followed
this procedure, Parliament had
exceeded its authority in
enacting Article 8(2) of the
Constitution and therefore the
provision was dead at birth.
Next, in
relation to article 15, the
plaintiff has claimed that the
Constitution of the Republic of
Ghana (Amendment) Act,1996 (Act
527) and its consequential
legislation, the Citizenship
Act, 2000 (Act 591) have the
obvious and intended effect (if
not the express purpose) of
violating the dignity of a
certain class of citizens in
violation of the Dignity Clause
of the Constitution and that the
grounds for the exclusions of
dual citizens from certain
public offices are not
permissible under the Dignity
Clause of the Constitution.
In relation
to article 17, the plaintiff has
asserted that the amendment
(that is, article 8(2) and the
consequential Citizenship Act,
2000 (Act 591)) is
unconstitutional because it has
the obvious and intended effect
(if not the express purpose) of
discriminating against a certain
class of citizens in violation
of the Equality Clause of the
Constitution and because the
office-holding exclusions
contained in article 8(2) are
not permissible under the
Equality Clause of the
Constitution.
Finally, in
relation to article 55(10), the
plaintiff’s argument has been
that the impugned article 8(2)
and its consequential
legislation have the obvious and
intended effect (if not the
express purpose) of restricting
political participation by dual
citizens in violation of the
Equal Participation Clause of
the Constitution and that the
grounds for the exclusions of
dual citizens from the specified
public offices are not
permissible under the
Participation Clause of the
Constitution.
The
conclusion of the Supplementary
Statement of Case was:
“29. In
sum, the purported amendment
(Article 8(2) of the
Constitution of the Republic of
Ghana (Amendment) Act, 1996 (Act
527) and consequential
legislation (Citizenship Act,
2000 (Act 591) is defective and
it is null and void and has no
effect on the Constitution.
30. In
sum Article 8(2) never became a
provision of the Constitution;
having never become a provision
of the Constitution, it cannot
trigger the question of whether
a provision of the Constitution
can be considered
Unconstitutional.”
In response
to these arguments, the
defendant, the Honourable
Attorney-General of the Republic
argued in his Reply to the
Plaintiff’s Supplementary
Statement of Case that, under
the law which existed on the
coming into force of the 1992
Constitution, a citizen of Ghana
who had voluntarily acquired the
citizenship of another country
lost his or her Ghanaian
citizenship. He challenged the
accuracy of the proposition of
law contained in paragraph 6 of
the Plaintiff’s original
Statement of Case which asserted
that:
“Furthermore,
under the original provisions of
the 1992 Constitution, citizens
of Ghana who had acquired the
citizenships of other countries
before the coming into force of
the 1992 Constitution remained
citizens of Ghana since the
constitutional provision could
not be retroactively applied to
them.”
The defendant
correctly points out that both
under the Ghana Nationality Act
1971 (Act 371) and under the
original Article 8 of the 1992
Constitution, dual nationality,
with a few minor exceptions, was
proscribed. Since the existing
law at the time of the coming
into force of the 1992
Constitution was preserved by
article 11(5) of that
Constitution, it is clear that
both before and immediately
after the coming into force of
the 1992 Constitution, dual
nationality, with minor
exceptions, was not permitted
under Ghanaian law.
This is an
important element in the
argument against the plaintiff’s
case, although the defendant
does not fully develop its
import. The fact is that if a
Ghanaian citizen could not
voluntarily acquire the
nationality of another State and
retain his Ghanaian citizenship,
it could be cogently argued that
this was a worse inequality than
being allowed by the impugned
Article 8(2) to retain his or
her citizenship but to be
excluded from certain offices.
Accordingly, it would be
reasonable to interpret the
impugned provision as
increasing, rather than
diminishing, the rights of a
Ghanaian who has voluntarily
acquired the citizenship of
another country.
In other
words, assuming without
admitting that excluding
Ghanaians with dual nationality
from the posts referred to by
the impugned article 8(2)
constitutes an infringement of
articles 15, 17 and 55(10), the
total deprivation of voluntary
would-be dual citizens of all
their rights of citizenship
entailed by the pre-existing
law, which prohibited dual
nationality, was a worse
inconsistency with those
provisions. Yet, it was an
accepted orthodoxy that this
total deprivation of citizenship
was constitutional since it was
part of the Constitution as
originally enacted. The
impugned provision could thus
not be viewed as a dilution of
pre-existing entrenched rights,
but rather as an improvement of
those rights. Indeed, the
framers of the impugned
provision saw it as a measure of
reform.
When the
essence of this analysis was put
to counsel for the Plaintiff,
Professor Bondzi-Simpson, during
a further oral argument before
this court on 14th
March 2012, his response was
that the focus of the court
should be on preventing
discrimination among citizens
and that it was unacceptable for
different classes of citizens to
be treated differently. His
response thus re-echoed the
following paragraph in the
plaintiff’s original Statement
of Case:
“12. The
Plaintiff’s case is that the
Constitution forbids a caste
system that treats some citizens
as less than full citizens with
limited rights. The plaintiff
contends that banning dual
citizens from holding the
specified offices render them
second class citizens and
curtail their fundamental right
to full participation in the
civil and political life of the
country.”
This response
is not persuasive. The fact is
that, before the enactment of
the impugned article 8(2), there
was unequal treatment of
citizens in the sense that a
citizen who voluntarily acquired
a foreign citizenship lost his
Ghanaian citizenship and all the
rights entailed in that
citizenship. Although such a
person was no longer a Ghanaian
citizen, his loss of his
citizenship rights was a
consequence of the unequal
treatment he had received from
the law. Now, if the law is
reformed to preserve for him a
part of his rights as a citizen,
in contrast to the total loss of
those rights consequent on his
choosing to acquire voluntarily
another nationality, I consider
that reform to be an advance
towards greater equality, rather
than the opposite. To insist on
comparing only the rights of
those who remained Ghanaian
citizens to see whether there
were unequal classes of such
citizens, whilst ignoring the
fact of the loss of citizenship
resulting from an act of a
former citizen would be to
present a distorted picture of
the equality among citizens
under the law existing prior to
the enactment of the challenged
article 8(2).
Section 8 of
the repealed Ghana Nationality
Act, 1971 (Act 361) provided in
part as follows:
“(1) Any
person who , upon the attainment
of the age of 21 years, is a
citizen of Ghana and also a
citizen of some country other
than Ghana shall, subject to
subsection (7) of this section,
cease to be a citizen of Ghana
upon the specified date unless –
(a)
he has renounced his
citizenship of that other
country; and
(b)
he has, in the case of a citizen
of Ghana born outside Ghana,
made and registered with the
Minister a declaration of his
intention to reside in Ghana.
(2) Any
person who –
(a) has attained the age of 21
years on the coming into force
of the Constitution; and
(b) becomes a citizen of Ghana
on that day by virtue of the
provisions of article 5 of the
Constitution; and
(c) is on or after that day
also a citizen of some country
other than Ghana,
shall,
subject to the provisions of
subsection (7) of this section
cease to be a citizen of Ghana
upon the specified date unless
he has renounced his citizenship
of that other country and taken
the oath of allegiance.
(3) A
citizen of Ghana shall cease to
be a citizen of Ghana if having
attained the age of 21 years –
(a) he acquires the citizenship
of some country other than Ghana
by voluntary act other than
marriage; or
(b) he otherwise acquires the
citizenship of some country
other than Ghana and has not, by
the specified date, renounced
his citizenship of that other
country, taken the oath of
allegiance and made and
registered with the Minister a
declaration of his intention to
reside in Ghana.
…..
(7) The Minister may in such
special circumstances as he
thinks fit extend beyond the
specified date the period in
which any person may make a
renunciation of citizenship,
take an oath or make and
register a declaration for the
purposes of this section.”
Furthermore,
the original article 8(1) of the
1992 Constitution read as
follows, before its unchallenged
amendment:
“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, acquires or
retains the citizenship of a
country other than Ghana.”
This was the
existing law which insisted on
sole citizenship for Ghanaians,
with a few minor exceptions.
This was the law which the
challenged article 8(2) sought
to change and reform. It was
the Citizenship Act, 2000 (Act
591) which repealed the Ghana
Nationality Act, 1971. To my
mind, therefore, against this
backdrop, article 8(2) expanded,
rather than diluted, the
fundamental rights of a Ghanaian
and the argument that it created
more inequality or loss of
dignity or less rights of
political participation is
clearly misconceived and should
be rejected.
However, the
Plaintiff is of a different
view. He expresses this view in
his Reply to the Defendant’s
Arguments of Law (Statement of
Case) filed pursuant to this
Court’s order of March 15th
2012 as follows:
23.
“The Attorney-General insists
that on the coming into force of
the 1992 Constitution, “all
citizens of Ghana who were
citizen of Ghana and at the same
time citizens of other countries
were deemed not to be citizens
of Ghana.”
24.
This interpretation is plainly
inconsistent with the
Constitution 1992, which states
that “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, acquires or retains
the citizenship of a country
other than Ghana.”
25. The
Constitution of the Republic of
Ghana, 1992 plainly recognizes
only a limited class of dual
citizens – those who acquired
dual citizenship by marriage or
by an involuntary Act or who had
not attained the age of
twenty-one years.
Constitution of the Republic of
Ghana 1992, 8(1).
26. The
Attorney-General predicates his
interpretation on Article 11
(5), which states that “subject
to the provisions of this
Constitution, the existing law
shall not be affected by the
coming into force of this
constitution.”
27. The
Plaintiff has no difficulty with
this argument. Indeed, it is
trite law. However, with the
greatest respect, the
Attorney-General once again has
misconstrued the real import of
the “saving existing statutes
under the Constitution” That is,
existing laws that are
consistent with the Constitution
are saved. But those that are
not consistent with the
constitution are not saved. That
was the essence of Kangah v
Kyere [1982-83].
28.
Thus, dual citizens recognized
by the 1992 Constitution
remained citizens of Ghana
notwithstanding the Ghana
Nationality Act, 1971 (Act 361).
This is the essence of Article
11 (6): “The existing law shall
be construed with any
modification, adaptations,
qualifications and exceptions
necessary to bring it into
conformity with the provisions
of the provisions of this
Constitution, or otherwise to
give effect to, or enable effect
to be given to, any changes
effected by this Constitution.”
29. As
argued, these dual citizens
recognized by the 1992
Constitution were not subject to
the public-office holding
exclusions in Act 527. Thus, it
cannot be said that the framers
wanted them to be excluded from
holding those positions.”
Whilst the
plaintiff is right to point out
that the proposition of law
contained in para. 23 above,
articulated by the defendant, is
incorrect, this does not detract
from the argument made in this
judgment that the majority of
Ghanaian citizens who acquired a
foreign nationality prior to the
enactment of the impugned
article 8(2) ended up losing
their Ghanaian citizenship.
This is the mischief that the
new article 8(2) sought to cure.
The next
point which needs to be
considered is whether even if
article 8(2) were inconsistent
with the constitutional
provisions identified by the
plaintiff, the right remedy
should be a declaration that
only article 8(2) is null and
void or whether rather, in
fairness to the intent of the
framers of the reform of the law
on dual citizenship, article
8(1) which is the primary reform
provision should also be struck
down. As is evident from the
discussion above, the object of
Parliament in enacting section 1
of the Constitution of Republic
of Ghana (Amendment) Act, 1996
(Act 527) was to change the law
on dual citizenship by allowing
a citizen of Ghana to hold a
nationality of a country other
than Ghana in addition to his
Ghanaian citizenship, but
subject to certain restrictions
set out in the impugned article
8(2). Accordingly, articles 8(1)
and 8(2) were part of a package
deal of reform. In my view, it
would constitute a distortion of
the legislative intent of
Parliament, if the restrictions,
set out in article 8(2), subject
to which the right to hold dual
citizenship was permitted by the
new article 8(1), were alone
excised. The resultant
constitutional provision would
not be the one that Parliament
intended to enact and it would
be unconscionable for this Court
to enforce that provision as a
valid constitutional provision.
Accordingly, if I were to decide
that article 8(2) were
unconstitutional, I would have
held that the provision to be
declared null and void should be
both article 8(1) and (2).
However, as I
have explained above, compared
to the pre-existing law, article
8(2) does not introduce greater
inequality, loss of dignity or
deprivation of rights of
political participation into the
1992 Constitution and therefore
does not deserve to be struck
down as unconstitutional, even
though it limits the rights of
dual nationals.
The
plaintiff’s argument to the
contrary is somewhat artificial
and contrived. He contends in
his original Statement of Case
as follows:
11.
“It is further stipulated that
the Parliament of Ghana lawfully
amended Article 8(1) of the
Republic of Ghana Constitution,
1992 and properly inserted
Article 8(1) in the Constitution
of the Republic of Ghana
(Amendment) Act, 1996 (Act 527).
Constitution
of the Republic of Ghana
(Amendment) Act, 1996 (Act 527)
Article 8(1).
12.
The effect of Article 8(1) of
the Constitution of the Republic
of Ghana (Amendment) Act, 1996
(Act 527) is to extend dual
citizenship to any Ghanaian who
holds the citizenship of another
country. If a citizen of Ghana
becomes a citizen of another
country, then that citizen of
Ghana becomes a dual citizen by
operation of amended Article
8(1) as long as that other
country allows dual citizenship.
13.
Article 8(2) of the Constitution
of the Republic of Ghana
(Amendment) Act, 1996 (Act 527)
and Section 16(2) of the
Citizenship Act, 2000 (Act 591)
disqualify dual citizens from
holding specified as well as
unspecified public offices, with
the unspecified public offices
to be prescribed by Parliament
or the Minister.
14.
Therefore, Article 8(2) of the
Constitution of the Republic of
Ghana (Amendment) Act, 1996 (Act
527) and Section 16(2) of the
Citizenship Act, 2000 (Act 591)
extinguish the rights of
citizens. Parliament has no
express or implied rights under
the Citizenship clauses of the
Constitution to extinguish,
interfere, curtail, or otherwise
diminish the rights of citizens.
15.
While Article 8(1) of the
Constitution, 1992 allowed for a
limited class of dual citizens,
these dual citizens were not
disqualified from holding the
public offices specified by the
amendment (Article 8(2) of the
Constitution of the Republic of
Ghana (Amendment) Act, 1996 (Act
527)) and the enabling
legislation (Section 16(2) of
the Citizenship Act, 2000 (Act
591). Thus, the amendment and
enabling statute disturb rights
that were previously guaranteed
to and enjoyed by these dual
citizens.
16.
Further, because some
citizenship rights are
entrenched, they can be
extinguished, interfered with,
curtailed, or otherwise
diminished only by the
procedures outlined in Article
290 of the Constitution, 1992.”
The Statement
of Case makes the important
point that, under the law
existing prior to the enactment
of the impugned article 8(2), a
limited class of dual citizens
was permitted and these had no
exclusions from office imposed
on them. However, the numbers
of those other citizens who lost
their citizenship on account of
their voluntary acquisition of
the nationality of a state other
than Ghana dwarfed the dual
nationals allowed under the
earlier existing law: namely,
for instance, Ghanaians below
the age of 21 who had acquired a
foreign nationality or Ghanaians
who through an act of marriage
had acquired a foreign
nationality. There was
accordingly little need to
impose the exclusions from
office on these few dual
nationals. The fact remained,
though, that the majority of
those who acquired a nationality
other than the Ghanaian would
lose their Ghanaian nationality
and, to me, this was a worse
deprivation of rights than the
exclusions from office
complained of by the Plaintiff.
That brings
me next to the issue of whether
this Court has the jurisdiction
to strike down a provision in an
Act amending the Constitution
which is inconsistent with an
entrenched provision of the
Constitution. The determination
of this issue requires an
interpretation of Article 2(1)
of the 1992 Constitution, which
states that:
“(1) A person who alleges that -
(a) an enactment or anything
contained in or done under the
authority of that or any other
enactment; or
(b) any act or omission of any
person;
is inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect.”
The defendant
made a submission on this issue
in his Supplementary Statement
of Case, which I will now
proceed to assess. The
defendant’s argument is that
article 8(2) was regularly
enacted in accordance with the
right procedure and accordingly
the Supreme Court cannot strike
it down as unconstitutional.
This is not a correct statement
of the law. The Constitution of
the Republic of Ghana
(Amendment) Act, 1996 (Act 527)
is definitely an “enactment”,
within the terms of Article
2(1), whose provisions have to
be consistent with the
Constitution, otherwise the
Supreme Court has the
jurisdiction to declare any such
inconsistent provision to be
null and void. The mere fact
that a challenged provision was
enacted in accordance with the
right procedure does not
necessarily imply that this
Court may not strike it down as
unconstitutional. This is
particularly so in relation to
provisions enacted in accordance
with article 291, which deals
with the amendment of provisions
which are not entrenched. Where
a provision has seemingly been
validly introduced into the
Constitution in accordance with
article 291, but the provision
is inconsistent with an
entrenched clause of the
Constitution, this Court has the
jurisdiction to declare that
provision null and void.
The
plaintiff’s case is that while
the original article 8 of the
1992 Constitution could validly
be amended by Parliament without
a referendum because it was not
entrenched, the impact of the
amendment contained in the
impugned article 8(2) on the
equality, dignity and political
participation rights was such
that the amendment should be
construed as amending the
entrenched articles 15, 17 and
55(10). How cogent is this
case?
The
plaintiff’s case on this issue
is not persuasive, in the light
of article 289(2) of the 1992
Constitution, which, as we have
already seen, states that the
Constitution may not be amended
by an Act or altered whether
directly or indirectly unless
the sole purpose of the Act in
question is to amend the
Constitution and the Act has
been passed in accordance with
Chapter 25 of the
Constitution. The upshot of
the plaintiff’s argument is that
article 8(2) has indirectly
amended, or attempted to amend,
the entrenched clauses that he
has identified. However, this
contention is not sustainable in
the face of article 289(2).
What can more credibly be argued
is that the challenged article
8(2) is inconsistent with the
entrenched articles referred to
above and should therefore be
declared null and void. As
pointed out above, this Court
clearly has jurisdiction under
article 2(1) of the Constitution
to declare section 1 of the
Constitution of the Republic of
Ghana (Amendment) Act, 1996 (Act
527)) to be unconstitutional and
therefore void. The issue is
one of interpretation. My next
task is thus to interpret
article 8(2) of the
Constitution, contained in
section 1 of the Constitution of
the Republic of Ghana
(Amendment) Act, 1996 (Act
527)), to determine whether it
is inconsistent with articles
15, 17 and 55(10).
The text of
Article 15 of the 1992
Constitution has already been
set out (supra). This article
is what the plaintiff refers to
as the “Dignity Clause.” The
issue which arises is whether
the impugned article 8(2) is
inconsistent with this
provision. In
Ahumah-Ocansey v Electoral
Commission [2010] SCGLR 575,
I had occasion to attempt an
interpretation article 15(1),
although I did not come to any
firm view on it. I would like
to reproduce what I said then
(at p. 616) as an aid to the
analysis in this case :
“A second
issue raised by the reliefs
sought in the Ahumah Ocansey
case (although it is not listed
in the memoranda of issues) is
whether a refusal or neglect to
register prisoners for voting by
the Electoral Commission amounts
to a breach of article 15(1) of
the Constitution, which reads as
follows: “The dignity of all
persons shall be inviolable.”
This is an
issue of law which has to be
determined before this Court can
decide whether or not to grant
the “Declaration that refusal or
failure of the E.C. to register
prisoners for voting is a
violation of their rights as
citizens of Ghana, and amounts
to derogation of their integrity
as human beings”, which is
sought by the plaintiff.
What is the
interest that article 15(1) is
intended to protect and is a
denial to prisoners of a right
to vote incompatible with that
interest? The notion of the
protection of the dignity of all
persons is one that the Ghana
Constitution has adopted from
the international human rights
movement. In the international
context, it has had a certain
connotation of grave violation
of the core essential rights of
human beings. The African
Charter on Human and Peoples’
Rights, which Ghana has
ratified, deals with the matter
in its Article 5 as follows:
“Every
individual shall have the right
to the respect of the dignity
inherent in a human being and to
the recognition of his legal
status. All forms of
exploitation and degradation of
man, particularly slavery, slave
trade, torture, cruel, inhuman
or degrading punishment and
treatment shall be prohibited.”
The African
Charter’s illustrative, but
non-exhaustive, list of
exploitative practices that
infringe the right to dignity
provides guidance on what this
court might consider to be an
infringement of the right in the
Ghanaian context. Its examples
are all at the severe end of the
continuum of degrading
treatment. The African
Commission on Human and Peoples’
Rights has often based its
findings of breach of Article 5
on torture and cruel practices
relating to imprisonment. The
question is whether denial of a
right to prisoners to vote
should be put in the same
category as such dire examples
of degrading treatment. Or
should the Ghanaian courts adopt
a broad view of the scope of the
right to dignity? The decisions
of the African Commission are,
of course, not binding on this
court and we are at liberty to
adopt a much more expansive view
of what conduct can be brought
within the ambit of a breach of
the right to dignity.”
The question
therefore remains as to how
expansively this Court should
interpret article 15(1). Is the
granting of less rights to dual
citizens than accorded to other
citizens to be regarded as an
infringement of the right to
dignity of the dual citizens?
This is a very difficult
question, particularly as
dignity has a hallowed place in
international human rights law.
Indeed, it is referred to in the
Preamble to the Charter of the
United Nations, adopted in 1945,
which states:
“We the
peoples of the United Nations
determined to save succeeding
generations from the scourge of
war, which twice in our lifetime
has brought untold sorrow to
mankind, and to reaffirm faith
in fundamental human rights, in
the dignity and worth of the
human person, in the equal
rights of men and women and of
nations large and small … have
resolved to combine our efforts
to accomplish these aims.”
However,
giving justifiable meaning to
article 15(1) is a complex task
because the legal meaning of
“dignity” is not easy to pin
down. Because there is no
Ghanaian case law spelling out
the meaning of dignity, the
danger in an over-expansive
interpretation of article 15(1)
is that it is likely to result
in the granting of vague rights
whose boundaries are difficult
to determine. There is thus
merit, in this context, in the
common law approach of building
up an understanding of article
15(1) on a case by case
approach, instead of engaging in
a sweeping interpretation of the
provision not called for by the
facts of the present case.
The plaintiff
sought to tackle this issue of
vagueness by praying in aid
decisions from the United
States, Canada and South Africa
to flesh out the meaning of
dignity in our Constitution. He
cited the Canadian Supreme
Court’s view in Law v Canada
(Minister of Employment and
Immigration) [1999] 1 S.C.R.
497, at para 53 of what
constitutes human dignity. The
Court there said:
“What is human dignity?
There can be different
conceptions of what human
dignity means. For the purpose
of analysis under s. 15(1) of
the Charter, however, the
jurisprudence of this Court
reflects a specific, albeit
non-exhaustive, definition. As
noted by Lamer C.J. in
Rodriguez
v. British Columbia (Attorney
General),
1993 CanLII 75 (SCC),
[1993] 3 S.C.R. 519, at p. 554,
the equality guarantee in s.
15(1) is concerned with the
realization of personal autonomy
and self-determination. Human
dignity means that an individual
or group feels self-respect and
self-worth. It is concerned with
physical and psychological
integrity and empowerment. Human
dignity is harmed by unfair
treatment premised upon personal
traits or circumstances which do
not relate to individual needs,
capacities, or merits. It is
enhanced by laws which are
sensitive to the needs,
capacities, and merits of
different individuals, taking
into account the context
underlying their differences.
Human dignity is harmed when
individuals and groups are
marginalized, ignored, or
devalued, and is enhanced when
laws recognize the full place of
all individuals and groups
within Canadian society. Human
dignity within the meaning of
the equality guarantee does not
relate to the status or position
of an individual in society per
se, but rather concerns the
manner in which a person
legitimately feels when
confronted with a particular
law. Does the law treat him or
her unfairly, taking into
account all of the circumstances
regarding the individuals
affected and excluded by the
law?”
However, a
subsequent Supreme Court of
Canada case has cast doubt on
the utility of the concept of
human dignity as a legal test.
In R v
Kapp [2008] 2 SCR 483,
McLachlin CJ and Abella J. of
the Court said (at paras 19 –
22):
“[19] A decade later, in Law,
this Court suggested that
discrimination should be defined
in terms of the impact of the
law or program on the “human
dignity” of members of the
claimant group, having regard to
four contextual factors: (1)
pre-existing disadvantage, if
any, of the claimant group; (2)
degree of correspondence between
the differential treatment and
the claimant group’s reality;
(3) whether the law or program
has an ameliorative purpose or
effect; and (4) the nature of
the interest affected (paras.
62-75).
[20] The achievement of Law was
its success in unifying what had
become, since Andrews, a
division in this Court’s
approach to s. 15. Law
accomplished this by reiterating
and confirming Andrews’
interpretation of s. 15 as a
guarantee of substantive, and
not just formal, equality.
Moreover, Law made an important
contribution to our
understanding of the conceptual
underpinnings of substantive
equality.
[21] At the same time, several
difficulties have arisen from
the attempt in Law to employ
human dignity as a legal test.
There can be no doubt that human
dignity is an essential value
underlying the s. 15 equality
guarantee. In fact, the
protection of all of the rights
guaranteed by the Charter has as
its lodestar the promotion of
human dignity. As Dickson C.J.
said in R. v.Oakes, [1986] 1
S.C.R. 103:
The Court must be guided by the
values and principles essential
to a free and democratic society
which I believe embody, to name
but a few, respect for the
inherent dignity of the human
person, commitment to social
justice and equality,
accommodation of a wide variety
of beliefs, respect for cultural
and group identity, and faith in
social and political
institutions which enhance the
participation of individuals and
groups in society. [p. 136]
[22] But as critics have pointed
out, human dignity is an
abstract and subjective notion
that, even with the guidance of
the four contextual factors,
cannot only become confusing and
difficult to apply; it has also
proven to be an additional
burden on equality claimants,
rather than the philosophical
enhancement it was intended to
be.1 Criticism has also accrued
for the way Law has allowed the
formalism of some of the Court’s
post-Andrews jurisprudence to
resurface in the form of an
artificial comparator analysis
focused on treating likes
alike.”
This Canadian
experience makes me somewhat
reluctant to base the
unconstitutionality of an
enactment on the subjective
criterion of compatibility with
human dignity, especially where
an expansive definition of the
concept is relied on, in a
situation where there is an
alternative basis for
determining that
constitutionality. In short,
not only am I not inclined to
give a definitive exhaustive
interpretation to article 15,
but also I am not prepared to
hold that the exclusions from
office contained in article 8(2)
are incompatible with the
dignity provided for in article
15. As the Canadian cases show,
human dignity is often
intertwined with equality issues
and indeed in this case the
issue relating to it has been
argued alongside the equality
submission. I think that one is
on surer ground in considering
the issue raised in this case on
the basis of equality, rather
than in terms of human
dignity. Accordingly, this is
what I will proceed to do. That
means interpreting article 17 of
the 1992 Constitution.
The text of
Article 17 has also been quoted
earlier in this judgment. The
Supreme Court has expressed
unanimously an interpretation of
the article in Nartey v Gati
[2010] SCGLR 745. It is a
useful starting point for the
analysis in this case and
therefore the relevant passage
from it is reproduced here
([2010] SCGLR 745 at p. 754):
“Interpretation of Article 17
This
reference presents a genuine
issue for interpretation because
the concept of equality embodied
in article 17 is by no means
self-evident. To our mind, it
is clear what article 17 does
not mean. It certainly does not
mean that every person within
the Ghanaian jurisdiction has,
or must have, exactly the same
rights as all other persons in
the jurisdiction. Such a
position is simply not
practicable. Soldiers,
policemen, students and judges,
for instance, have certain
rights that other persons do not
have. The fact that they have
such rights does not mean that
they are in breach of article
17. The crucial issue is
whether the differentiation in
their rights is justifiable, by
reference to an object that is
sought to be served by a
particular statute,
constitutional provision or some
other rule of law. In other
words, article 17(1) is not to
be construed in isolation, but
as part of article 17. This
implies that the equality
referred to in article 17(1) is
in effect freedom from unlawful
discrimination. Article 17(2)
makes it clear that not all
discrimination in unlawful. It
proscribes discrimination based
on certain grounds. The
implication is that
discrimination based on other
grounds may not be unlawful,
depending on whether this Court
distils from article 17(1) other
grounds of illegitimate
discrimination which are not
expressly specified in article
17(2).
Thus, for
instance, in India, the Supreme
Court has there held that mere
differentiation or inequality of
treatment is not per se
equivalent to discrimination
within the proscription
contained in that country’s
equal protection clause. That
clause, which is article 14 of
the Indian Constitution, reads
as follows:
“The State
shall not deny to any person
equality before the law or the
equal protection of the laws
within the territory of India.”
The Supreme
Court of India has said in
relation to this clause that:
“When a law
is challenged to be
discriminatory essentially on
the ground that it denies equal
treatment or protection, the
question for determination by
the Court is not whether it has
resulted in inequality but
whether there is some difference
which bears a just and
reasonable relation to the
object of legislation. Mere
differentiation does not per se
amount to discrimination
within the inhibition of the
equal protection clause. To
attract the operation of the
clause it is necessary to show
that the selection or
differentiation is unreasonable
or arbitrary, that it does not
rest on any rational basis
having regard to the object
which the legislature has in
view.” (See
K.
Thimmappa v Chairman, Central
Board of Directors AIR 2001 SC
467. Quoted in
Jain,
Indian Constitutional Law,(LexisNexis
Butterworths Wadhwa, 2009, 5th
Ed.) p. 858.)
This approach
is a reasonable one and flows
from the obvious fact that no
two human beings are equal in
all respects. Accordingly, if
the law were to treat all human
beings rigidly equally, it would
in fact result in unequal
outcomes. Rigid equal treatment
would often result in unfair and
unequal results. Accordingly,
it is widely recognized that
equality before the law requires
equal treatment of those
similarly placed, implying
different treatment in respect
of those with different
characteristics. In simple
terms, equals must be treated
equally, while the treatment of
unequals must be different. The
law must be able to
differentiate between unequals
and accord them the
differentiated treatment which
will result in enabling them, as
far as practicable, to attain
the objective of equality of
outcomes or of fairness. In
effect, equality of opportunity
will often entail the law
treating people differently in
order to give them a fighting
chance of attaining equality of
outcomes or of fairness. If the
differentiated legal rights
arising from such an approach to
the law were to be struck down
as not conforming with the
constitutional prescription that
all persons are equal before the
law, it would be thoroughly
counterproductive.”
From the
approach of this Court set out
above, it is obvious that the
mere fact that “sole” citizens
and dual citizens are treated
differently is not necessarily a
breach of article 17 of the
Constitution. The determinative
issue is whether the
differentiation in their rights
is constitutionally justifiable
by reference to the object that
is sought to be served by the
Constitution of the Republic of
Ghana (Amendment) Act, 1996 (Act
527)). If, for instance, the
object of that statute conflicts
with the letter or spirit of
Article 17, then the unequal
treatment of the two classes of
citizens would be
unconstitutional. However, if
there is no such conflict
between the object of the
statute and the article, then
the differentiation in the
rights of the two classes of
citizens would be
constitutional. In short,
inequality in rights simpliciter
is not a sufficient basis for
declaring the
unconstitutionality of the
rights complained of. One needs
to undertake a further inquiry.
During the oral argument before
this Court, Professor
Bondzi-Simpson grounded the
unlawfulness of the alleged
breach of article 17 on
discrimination on the grounds of
social status, contrary to the
prohibition in article 17(2).
My comment on this argument
would be that even
discrimination on the grounds of
social status is not unlawful
simpliciter. It is unlawful if
it is not for a lawful and
legitimate purpose. After the
fact of discrimination on the
ground of social status has been
established, a further inquiry
is needed to find out why the
discrimination has taken place.
It is the result of this inquiry
which will determine the
unlawfulness or not of the
offending discrimination.
At face
value, the plaintiff seems to be
arguing the contrary of the
above formulation of the law.
In his original Statement of
Case, he contends that the
Constitution forbids invidious
discrimination and affords all
citizens the right to undertake
lawful work and engage in lawful
employment. He further submits
that it is in the best interest
of the State that all its
citizens are eligible to occupy
any office not specifically and
unambiguously precluded by the
Constitution. He asserts that
the Constitution forbids a caste
system that treats some citizens
as less than full citizens with
limited rights.
With regard
to the object of the
Constitution of the Republic of
Ghana (Amendment) Act, 1996 (Act
527), the plaintiff contends
that its section 1’s exclusion
of dual nationals from certain
offices is disproportionate to
any legitimate concern that the
State might have. In his
original Statement of Case, he
puts forward the view that “the
right-extinguishing amendment
achieves no constitutionally
valid purpose and the chosen
means are not reasonably and
demonstrably justified.” He
contends that nothing in the
core values and spirit of the
1992 Constitution justifies the
restriction on the rights of
dual citizens.
In response,
the defendant, in his
Supplementary Statement of Case
argues that citizenship raises
issues of loyalty and fidelity.
He says:
“I am
inviting this Honourable Court
to ponder over these two
hypothetical cases. How can the
loyalty of say a Colonel in the
Ghanaian Army be guaranteed if
there is a war between Ghana and
Nigeria and the said colonel
holds both citizenship of Ghana
and Nigeria? How can one be
sure of the commitment and
loyalty of Ghanaian High
Commissioner to UK if there is a
diplomatic row between Ghana and
UK when the same Ghanaian High
Commissioner holds a British
citizenship as well?”
This passage
points to the perceived mischief
which the framers of article
8(2) sought to remedy. A State,
even a democratic one, is
entitled to adopt measures to
secure the loyalty of its
citizens to it. If there is a
limited differentiation in the
rights of classes of its
citizens with a view to
attaining this objective of
putting in place a framework
conducive to loyalty, can it be
said that the differentiation is
not based on a justifiable
rationale? Whilst an individual
citizen may or may not agree
with Parliament on the wisdom of
this legislative intention, I do
not think that one can
reasonably reach the conclusion,
on the facts of this case, that
the legislative object is not
constitutionally justifiable in
the public interest. In my
view, this evident legislative
purpose is legitimate. Of
course, the legislative object
would not be justifiable in the
public interest, if its pursuit
would necessarily entail the
infringement of the fundamental
human rights protected under
Chapters 5 and 6 of the
Constitution, except where, in
accordance with article 12(2),
“respect for the rights and
freedoms of others and for the
public interest” requires that
the legislative object shall
prevail over any other rights.
If the legislative object is
justifiable, then according to
the test adopted by the Supreme
Court in Nartey v Gati (supra),
the differentiation in rights is
not unconstitutional.
Accordingly, I do not find that
the challenged article 8(2) is
inconsistent with article 17 of
the 1992 Constitution.
I should,
however, point out that the
plaintiff strongly disagrees
from accepting loyalty and
fidelity arguments as a
rationale for legitimate
differentiation in rights. He
contends in his Reply to the
Defendant’s Arguments of Law
(Supplementary Statement of
Case), filed pursuant to the
Court’s order of 15th
March, 2012 that:
“16. It
must also be mentioned that
Ghanaian (sic) have held the
high office of Chief Justice in
various countries without a
question being raised about
their loyalty and integrity.
Their Lordships justices F.K.
Apaloo, Abban and S.A. Brobbey
have been Chief Justices in
Kenya, Seychelles and the Gambia
– where they all served with
distinction. Numerous other
judges have served elsewhere,
including Justices Aboagye,
Roger Korsah and countless
others. With respect, the
loyalty argument is neither
legally nor empirically sound.
17.
The loyalty and fidelity
arguments are not legal
arguments; thus the
Attorney-General is unable to
cite a single legal authority or
adduce empirical evidence to
support those imaginations and
hypothetical scenarios. Indeed,
it may rather be observed that
all those who have engaged in
treason by overthrowing the
constitutionally empowered
government of this country have
all been single citizen
Ghanaians.”
This is a
cogent argument. However, I do
not think a court has to be
persuaded by the cogency of the
rationale for a legislative
purpose before it can see its
way clear to enforcing that
purpose. 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.
The conception of legislative
purpose is for the legislature
and, unless that purpose can be
said to conflict irreconcilably
with the letter or spirit of the
Constitution, the courts have a
duty to enforce the legislation
embodying that purpose.
Legislative policy is for
Parliament to make and not for
the courts. Thus bad or unsound
legislative policy is not
necessarily unconstitutional.
It is not the function of the
courts to declare what
legislative policies are sound
or not. The determination of
the constitutionality of
legislation is a completely
separate issue. My
interpretation of article 17
above is tantamount to holding
that the legislative purpose
implied in the impugned article
8(2), namely, the devising of a
putative framework for loyalty
is not irreconcilably in
conflict with the letter and
spirit of article 17, whether or
not that framework is logically
flawed.
Finally, I
need to examine the third ground
for the challenge of the
constitutionality of the
impugned article 8(2), namely,
that the ban on holding the
indicated public offices
restricts the right to political
participation. This challenge is
based on article 55(10) whose
text has been set out supra. In
the plaintiff’s original
Statement of Case, he explains
his position as follows:
“86. It
is respectfully submitted that
the Constitution forbids a caste
system that treats some citizens
as less than full citizens with
limited rights. The plaintiff
further submits that banning
dual citizens from holding the
specified offices render them
second class citizens and
curtail their fundamental right
to full participation in the
civil and political life of the
country.
…
89. In
interpreting the Constitution as
a living document, not only past
and present events, but also
future possibilities must be
kept in mind. If Parliament is
allowed to curtail the right
that dual citizens have to fully
participate in the political
life of this country, it sets a
precedent for creating
additional classes of citizens
with rights fixed by
Parliament. This will derail
the principle of equal
citizenship that animates the
Ghana Constitution, 1992 and
that has served us well.
90. It
is also respectfully submitted
that Article 17(4)(d) of the
Constitution, 1992, enjoins
Parliament not to enact laws
“inconsistent with the spirit of
this Constitution.” Further in
Article 33(5) of the
Constitution, 1992, all are
enjoined to go beyond the
written provisions enshrining
human rights, and to extend the
concept to areas not
specifically or directly
mentioned but which are
“inherent in a democracy and
intended to secure the freedom
and dignity of man.” Therefore,
in interpretation of the
Constitution, not just the words
but the underlying spirit and
philosophy must be honored.
New
Patriotic Party v
Attorney-General [1993-94] 2 GLR
35.
Constitution of the Republic of
Ghana, 1992, Article 17(4)(d).
Constitution of the Republic of
Ghana, 1992, Article 33(5).
91. It
is respectfully submitted that
there are thousands of dual
citizens whose views, interests,
ideas, and values are worth
considering in our polity.
92. It
is respectfully submitted that
there is nothing democratic
about freezing their views by
denying these dual citizens the
right to hold public office at
all levels.”
The plaintiff
is quite right in pointing out
the citizen’s inalienable rights
to political participation under
the 1992 Constitution. However,
this right is not absolute and
what is the crucial issue in
determining the
constitutionality of article
8(2) is the extent to which it
goes in restricting the
citizen’s right to political
participation. Article 55(10),
on which the plaintiff bases his
argument, is one of the
directive principles of State
Policy, which though held to be
presumptively justifiable in
Ghana
Lotto Operators Association v
National Lottery
Authority,[2007-2008] SCGLR 1088,
have to be construed to be
subject, by analogy, to the
qualification contained in
article 12(2) that such
freedoms are to be enjoyed,
“subject to respect for the
rights and freedoms of others
and for the public interest.”
I am of the
considered view that the
disqualification of dual
citizens from holding the
offices of Ambassador or High
Commissioner; Secretary to
Cabinet; Chief of Defence Staff
or any Service Chief;
Inspector-General of Police;
Commissioner of the Customs,
Excise and Preventive Service;
and Director of Immigration
Service does not constitute such
a denudation of their political
rights as to infringe their
right, pursuant to article
55(10), to participate in
political activity intended to
influence the composition and
policies of the Government.
What gives me cause for concern
is the power given to Parliament
under article 8(2) to specify
any office from which dual
citizens will then be
disqualified from holding. In
my view, the spirit of the
Constitution imposes a limit on
the legislative discretion thus
conferred. 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).
The arguments
considered thus far in this case
belong to what plaintiff’s
counsel has called the third
strand of the plaintiff’s case.
Under this third strand, counsel
contended, in his oral argument
before us, that the Constitution
contains provisions directly
dealing with equality,
non-discrimination, political
participation and the dignity of
the citizen and that the seeming
discrimination against the dual
citizen should lead to a
declaration of
unconstitutionality of the
offending provisions. Apart
from these arguments, already
dealt with above, which were
rehearsed in the third strand of
counsel’s presentation, he
presented two other strands.
The first strand contended that
to the extent that section 16(2)
of the Citizenship Act, 2000
(Act 591) had added offices not
included in the impugned article
8(2), those additional offices
were unconstitutional. Under
the second strand, the plaintiff
urges that the additional
administrative requirements made
of dual citizens, to which sole
citizens are not subject, such
as the need to obtain a special
card, are an unconstitutional
administrative imposition.
I wiil deal
next with the first strand,
which relates to the
constitutionality of the
additional posts from which dual
nationals are excluded by
section 16(2) of Act 591.
Section 16(2) states that:
“(2) Without
prejudice to article 94(2)(a) of
the Constitution, no citizen of
Ghana shall qualify to be
appointed as a holder of any
office specified in this
subsection if he holds the
citizenship of any other country
in addition to his citizenship
of Ghana—
(a) Chief
Justice and Justices of the
Supreme Court;
(b)
Ambassador or High Commissioner;
(c) Secretary
to the Cabinet;
(d) Chief of
Defence Staff or any Service
Chief;
(e)
Inspector-General of Police;
(f)
Commissioner, Custom, Excise and
Preventive Service;
(g) Director
of Immigration Service;
(h)
Commissioner, Value Added Tax
Service;
(i)
Director-General, Prisons
Service;
(j) Chief
Fire Officer;
(k) Chief
Director of a Ministry;
(l) the rank
of a Colonel in the Army or its
equivalent in the other security
services; and
(m) any other
public office that the Minister
may by legislative instrument
prescribe.”
A comparison
of this section 16(2) with
article 8(2) of the Constitution
reveals that the following are
the additional posts added by
section 16(2): 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; and the rank of
Colonel in the Army or its
equivalent in the other security
services. In addition, it adds
the residuary category of “any
other public office that the
Minister may, by legislative
instrument, prescribe.” This
residuary category raises an
issue similar to what I have
already commented on in relation
to the comparable power given to
Parliament under article 8(2).
Again, I consider that the
spirit of article 55(10) limits
the discretion of the Minister
to disqualify dual nationals
from public office, always
assuming that the delegation of
this power of disqualification
to the Minister is
constitutional. If the Minister
by the exercise of his or her
discretion excludes dual
nationals from such a wide range
of public office as to impair
their right to participate in
political activity intended to
influence the composition and
policies of the Government, then
that would be unconstitutional.
But beyond this, there is a
serious question as to whether
section 16(2)(m) of Act 591 is
constitutional. It is against
the spirit of the Constitution
for Parliament to delegate to
the Minister the authority which
Parliament itself had received
by delegation from the
Constitution. This is against
the sound policy embodied in the
maxim: delegatus non potest
delegare. In other words, my
interpretation of article
8(2)(g) of the 1992 Constitution
is that the mandate it gives to
Parliament to specify offices
from which dual nationals are
excluded does not include a
mandate to further delegate that
authority to a Minister to
exercise by Legislative
Instrument. I am thus inclined
to adjudge section 16(2)(m) to
be unconstitutional, but I will
say more about this later.
As far as the
additional specified posts are
concerned, I do not consider
that the exclusion of dual
nationals from those particular
posts is a sufficient derogation
from their right to participate
in political activity as to lead
to unconstitutionality. The
weight of the posts from which
dual nationals are excluded,
compared to the range of public
posts for which dual nationals
remain eligible, is such that,
on balance,
I am not
able to come to the conclusion
that the right of dual nationals
to participate in political
activity has been infringed.
Moreover, the posts in question
are not even political, although
it has to be admitted that the
holders of them can affect the
policies of government.
The
plaintiff’s case under the
second strand is, as stated in
para 16 of his original
Statement of Case, as follows:
“The
Plaintiff’s case, furthermore,
is that any subsidiary
legislation or administrative
practice that calls for dual
citizens to possess additional
documentation that sole citizens
are not require (sic) to possess
is unreasonable, unnecessary and
not constitutionally warranted
and is therefore null, void and
of no effect,.”
This, to my
mind, is the most powerful
contention in the plaintiff’s
case. It is important to stress
that the rights of citizenship
of dual nationals are
unconditional. It is true that
dual nationals are lawfully
excluded from particular
offices, but that does not
derogate from the proposition
that the citizenship rights of
dual nationals are
unconditional. Accordingly, any
administrative procedures or
practices or subsidiary
legislation which seek to impose
fetters or conditions on the
exercise by dual nationals of
their rights as citizens are
unconstitutional. The authority
for this view of the law is
article 8(1) of the 1992
Constitution. The plain
language of that article makes
it quite clear that a Ghanaian
may hold the citizenship of any
other country in addition to the
citizenship of Ghana. No
conditions are attached to this
primary constitutional
provision. The fact that
article 8(2) then imposes
certain exclusions from office
on dual nationals does not make
their rights conditional.
Accordingly,
the only remedies endorsed on
the plaintiff’s Writ of Summons
which I would grant are the
sixth and seventh reliefs (in
addition to the fifth relief the
extent of whose I grant I will
explain presently), which are in
the following terms:
6
“A Declaration that the
administrative requirement of
the Republic of Ghana for a dual
citizen to obtain a dual
citizenship card is
discriminatory, unreasonable,
burdensome, serves no legitimate
constitutional purpose and
thereby is null, void and of no
effect as it contravenes the
letter and spirit of Article 17
of the 1992 Constitution.
7
A Declaration that the
administrative requirement of
the Republic of Ghana for a dual
citizen to obtain a dual
citizenship card is
discriminatory, unreasonable,
burdensome, serves no legitimate
constitutional purpose and
thereby is null, void and of no
effect as it contravenes the
letter and spirit of Article
15(1) of the 1992 Constitution.”
To the extent
that the administrative
requirement referred to above is
mandatory and conditions the
exercise of the rights of dual
citizens on it, I would regard
it as unconstitutional. If the
card is intended to be optional
and to ease the exercise by dual
nationals of their rights, then
it would be constitutional. In
other words, dual nationals are
citizens by operation of the
Constitution and do not need any
mandatory documents before
exercising their rights of
citizenship, in the same way as
sole citizens do not need any
mandatory documents before
exercising their rights as
citizens. However, if the State
wishes to assist dual nationals
in the enjoyment of their rights
by providing them with evidence
of their dual nationality, this
would be permissible. What is
not lawful or constitutional is
for the State to prescribe that,
without possession of a dual
nationality card, a dual
national may not exercise his or
her rights granted under the
Constitution. I would thus
grant the plaintiff’s sixth and
seventh declarations. However,
for me the constitutional
authority for those declarations
is more article 8(1) itself than
those referred to by the
plaintiff in the said
declarations. I say this by way
of an interpretation of article
8(1) similar to that put on
article 42 in Ahumah-Ocansey v
Electoral Commission [2010]
SCGLR 575, by the Supreme Court,
where it was held that the right
to vote, conferred by that
article on Ghanaian citizens of
eighteen years or above and of
sound mind, being unqualified,
embraced even prisoners.
Similarly, the right of dual
nationals to the rights of
citizenship, conferred by
article 8(1), being equally
unconditional and unqualified,
except as otherwise provided by
the Constitution, cannot
lawfully be abridged, or
derogated from, by any
administrative practice,
procedure or subsidiary
legislation.
In addition,
I am inclined to grant the fifth
declaration to the extent that
it makes void s. 16(2)(m) of the
Citizenship Act 2000 (Act 591)
which I consider to be void as
conferring excessive,
unnecessary and unreasonable
power in excess of Parliament’s
authority on the Minister of the
Interior to ban dual citizens
from holding any public office
that the Minister may
prescribe. This delegated
Ministerial authority is subject
to abuse and would not have the
protective process of
Parliamentary debates which
attend the passage of a Bill
into an Act.
Accordingly,
in the result, save for the
fifth, sixth and seventh reliefs
of the plaintiff, I would
dismiss, for the reasons
extensively set out above, the
plaintiff’s claim for the
reliefs endorsed on his Writ of
Summons.
(SGD) DR. S. K.
DATE-BAH
JUSTICE OF THE SUPREME COURT.
ANSAH,
J.S.C.;
I also agree
that the plaintiff’s application
be dismissed save reliefs 6 and
7 endorsed on the writ granted
and for the reasons by Dr.
Date-Bah JSC.
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT.
OWUSU (MS),
J.S.C.;
On 22nd
May, 2012, when Judgment was
delivered in the above case, I,
after reading the Judgments of
my respected brother Dr.
Date-Bah J.S.C and sister Akuffo
J.S.C. respectively, I said I
agreed with the sentiments
expressed by my sister and added
that I would make a few remarks
of my own.
Upon further
reflection, I have no such
remarks to make.
(SGD) R. C. OWUSU (MS)
JUSTICE OF THE SUPREME COURT.
YEBOAH,
J.S.C.;
I had the
opportunity of reading the three
opinions and I am in agreement
with the opinion expressed by my
brother Dr Justice Date-Bah. I
will accordingly grant reliefs
five, six and seven as endorsed
on the plaintiff’s Writ of
Summons. I must put on record,
however, the industry put into
this case by counsel on both
sides especially on behalf of
the plaintiff who went far a
field to unearth cases from
other jurisdictions bodering on
citizenship. Save the above
reliefs granted, I will also
dismiss the plaintiff’s claim.
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
GBADEGBE,
J.S.C.;
I have had
the opportunity of reading in
draft the opinions just
delivered in the matter herein
by my worthy colleagues. Whiles
commending the industry and
having exhibited by them
individually in their opinions,
after giving anxious thought to
the views raised therein. I
associate my self with the
reasons and conclusion contained
in the judgment of Dr. Date-Bah
JSC. For this reason, I also
agree that save for relief 5, 6
and 7 the plaintiff’s action be
and is hereby dismissed.
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
BAMFO (MRS.),
J.S.C.;
I have had
the benefit of reading before
hand the well reasoned opinions
of my esteemed brothers, Atuguba
Acting Chief Justice and Prof.
Date-Bah J.S.C.
I however
agree with the conclusions of my
respected brother Atuguba Acting
Chief Justice that the
plaintiff’s case be dismissed in
its entirety.
(SGD) V.
AKOTO-BAMFO (MRS.)
JUSTICE OF THE SUPREME COURT
COUNSEL
PROFESSOR
BONDZI-SIMPSON ( WITH HIM
AGYEI-KODIE NUAMAH) FOR THE
PLAINTIFF.
HON. MARTIN
AMIDU ( ATTORNEY GENERAL) WITH
HIM SYLVESTER WILLIAMS (
PRINCIPAL STATE ATTORNEY ) FOR
THE DEFENDANT.
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