Friday, August 21 2015 Joyfm’s GhanaConnect Producer, Fred Smith, called me and he had a simple question; he needed an interview on whether dual citizens can vote in Ghana.

My answer straight away was emphatic in the affirmative. I referred him to the law that persons with dual citizenship status are prohibited only from the following sensitive public offices thought to require undivided loyalty:

(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.

 

It is obvious from this list in section 16 (2) of the Citizenship Act 2000 that the right to be registered as a voter and to vote is not prohibited. In fact, the electoral laws do not say otherwise. This is actually a repeat and expansion of the list in the 1996 amendment of article 8 of the 1992 Constitution which introduces dual citizenship.

I did emphasise, however, the question about the alleged 76,000 plus names discovered in voters’ registers of Ghana and Togo was really about whether those claimed to be dual citizens are so in fact.   

A lady called into the show and sought to suggest that her parents became citizens of Ghana and Togo by virtue of their marriage (they being Ghanaian man and Togolese woman respectively). I quickly alerted Host and Producer that that was not the law and that registration by application was required, possibly in both countries, because citizenship by marriage was not automatic.

WHO IS A DUAL CITIZEN – THE SUPREME COURT   

It is extremely important, however, to point out that the requirement of registration by application and to obtain a dual citizenship card (section 16 (5)) has by judicial law-making been removed and rendered otiose by the Supreme Court in Prof. Stephen Kwaku Asare v The Attorney-General. I reproduce the salient portion of that judgment for this purpose:

“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."  That was the court speaking through Justice Date-Bah in 2012.

The two reliefs referred to out of about ten reliefs sought in that suit were:

“… 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...”

It bears repeating for emphasis that only reliefs 6 and 7 were granted and all other reliefs dismissed by the court.

So how does one prove, in Ghana, that the said 76,000 voters are dual citizens when those persons may not need and may not have such certificates to show? Fact is, those making the dual citizenship argument in their defence have no place to authenticate such status by documentary records. If they indeed are, they may be so automatically and may not need to prove they are so by any documents. I don’t, however hesitate to say without any equivocation that it is most probably most absurd to suggest that 76,000 persons, an entire community has the automatic kind of dual citizenship preached by the Supreme Court in Asare v AG. 

WHO IS A CITIZEN OF GHANA - THE CONSTITUTION  

It becomes even clearer or for some reasons even complicated if you consider how one acquires the citizenship of Ghana. Check the permutations by law from articles 6, 7 and 8 of the Constitution (as amended) in the broader forms of citizenship either by jus soli – born on Ghanaian soil and/or jus sanguinis – born to Ghanaian parent(s), or by the other categorizations as by presumption as a foundling, adoption, marriage and registration, naturalisation:   

Article 6. (1) Every person who, on the coming into force of this Constitution, is a citizen of Ghana by law shall continue to be a citizen of Ghana.

(2) Subject to the provisions of this Constitution, a person born in or outside Ghana after the coming into force of this Constitution, shall become a citizen of Ghana at the date of his birth if either of his parents or grandparents is or was a citizen of Ghana.

(3) A child of not more than seven years of age found in Ghana whose parents are not know shall be presumed to be a citizen of Ghana by birth.

(4) A child of not more than sixteen years of age neither of whose parents is a citizen of Ghana who is adopted by a citizen of Ghana shall, be virtue of the adoption, be a citizen of Ghana.

Artitcle 7.  (1) A woman married to a man who is a citizen of Ghana or a man married to a woman who is a citizen of Ghana may, upon making an application in the manner prescribed by Parliament, be registered as a citizen of Ghana.

(2) Clause (1) of this article applies also to a person who was married to a person who, but for his or her death, would have continued to be a citizen of Ghana under clause (1) of article 6 of this Constitution.

(3) Where the marriage of a woman is annulled after she has been registered as a citizen of Ghana under clause (1) of this article, she shall, unless she renounces that citizenship, continue to be a citizen of Ghana.

(4) Any child of a marriage of a woman registered as a citizen of Ghana under clause (1) of this article to which clause (3) of this article applies, shall continue to be a citizen of Ghana unless he renounces that citizenship.

(5) Where upon an application by a man for registration under clause (1) of this article, it appears to the authority responsible for the registration that a marriage has been entered into primarily with a view to obtaining the registration, the authority may request the applicant to satisfy him that the marriage was entered into in good faith; and the authority may only effect the registration upon being so satisfied.

(6) In the case of a man seeking registration, clause (1) of this article applies only if the applicant permanently resides in Ghana.

Article 8. (1) A citizen of Ghana may hold the citizenship of any other country in addition to his citizenship of Ghana.

So, one may have dual or multiple citizenship by some form of the permutations above, and will not need any documents to show same. Such people should be able to register to and to exercise their franchise in public elections in Ghana without question. I am reminded of a certain case of Olympio v. Commissioner of Interior in 1970 to the effect that Gilchrist Olympio and his children may be  Ghanaians from Keta. But how is it possible to have an entire community belong to this class of automatic dual citizens? Well, they might show, and more importantly, that they are Ghanaians.

I will not proceed to the next obvious questions that flow from here or suggest how the NPP might pursue the subject further to drive home its argument about a bloated register to anchor its demand for a new one for the 2016 presidential and parliamentary elections.    

I have deliberately simply reproduced these sections, judgment, and provisions without much commentary because I believe firmly that they together settle the nagging questions and will properly guide the public discourse in an apolitical fashion in the national interest.

The author is an attorney @ law