This short article is an expression of my personal opinion on the judgment delivered by the Supreme Court in the consolidated suit in [NDC v A-G and EC; and Mark Takyi-Banson v A-G and EC of 15 July, 2020] and to demonstrate the paramount importance and continous relevance of Birth Certificate as a form of identification. It presents an opportunity to enlighten the curious public which received the decision with mixed feelings, disappointment and confusion as to the meaning and purpose of the decision.
Following the Court’s decision, many people have been asking questions like: Are we to completely abandon a fundamental document that certifies birth which was used in the past as one of the documents to obtain other official documents like a passport or the Ghana Card? If birth certificates can neither serve as a form of identification at birth nor as a fundamental document for acquiring citizenship, then what value do we now place on birth certificate in Ghana? What is the new legal status of all documents that the holders used their birth certificate to acquire in the past?
These are critical questions demanding some answers.
The judgment is worth reading especially, the erudite reasons canvassed by the Justices to collapse the arguments raised by the plaintiffs. Most intriguing is their arguments, reading from page 27 of the judgment, stating:
“It flies in the face of article 42 of the constitution and the decision of this court in Abu Ramadan (No 1), supra and Abu Ramadan (No 2), supra”. It goes on to say, “A birth certificate is not a form of identification. It does not establish the identity of the bearer. Nor does it link the holder with the information on the certificate. Quite obviously, it provides no evidence of citizenship. It therefore does not satisfy the requirements of article 42 of the Constitution. In fact, as a form of identification, it is worse than the NHI card which was held to be unconstitutional as evidence of identification of a person who applies for registration as a voter in Abu Ramadan (No 1), supra and Abu Ramadan (No 2) supra”.
With due respect, this decision by the Supreme Court is not only confusing for legal academics to explain but also difficult to justify on the basis of the formal law or case law. As the Dean of UPSA Law Faculty, Kofi Abotsi, had remarked “the decision of the Supreme Court has become law but difficult to justify” (opera-newsapp.com, 16/7). In fact, explaining the reasoning in this decision would fundamentally require a combined approach using the law, jurisprudence and general practice of birth registration and certification in Ghana.
By this approach, i will start by drawing a distinction between ‘citizenship’ and ‘nationlity’, then give a generally accepted definition of “Birth Certificate” and its legitimate values, then try to juxtapose it to the laws referred to in the judgment. I will end by establishing a link between birth certificate and citizenship before concluding. My opinion in this piece of work must not be seen as an attempt to subvert the power and authority of the Supreme Court by its decision (which has already become a law, whether you like it or not) but to help expand and develop the frontiers of our civil jurisprudence in the context of this controversial decision.
Citizenship and nationality concepts
Citizenship is a legal status in a political institution such as a City or a State, It is the legal relationship of a person to a State. Hence, a person can be a citizen by Birth, or Registration through marriage or by Naturalization. The last requires that the person must be of good character, resident in Ghana for at least 5 years (or a shorter period in special circumstances) before applying and must be able to speak an indigenous Ghanaian language.
Nationality, on the other hand, denotes where an individual has been born, or holds citizenship with a State, which goes with rights (e.g. a right to vote) and duties (e.g. a duty to defend the State), defined by the national law of each State as prescribed by Article 2 of “the 1930 Hugh Convention on Certain Questions Relating to the Conflict of Nationalty Laws”. A person’s nationality is where he/she is a legal citizen, usually in the country where he/she was born. For that matter, people from Ghana have Ghanaian nationality, just as people from the United States of America have American nationality. Nationality is deemed to be obtained through inheritance from the parents, which is a natural phenomenon. In a nutshell, the terms “citizenship” and “nationality” are sometimes used interchangeably, but differ in important ways. In most circumstances, citizenship is easier to determine than nationality. Nationality is listed only in addition to citizenship, and only in cases where one’s nationality differs from citizenship. The subsequent discussions will be situated within the context of “Birth Certificate and citizenship”.
Birth certificate and its relevance as a form of identification as a citizen (national)
Birth Certificate is defined as “an official document issued to record a person’s birth and identify him/her by name, place of birth, date of birth, and parentage” (See Oxford Dictionary, 2016).
By this generally accepted definition, birth certificate is the first vital record which documents the birth of a person anywhere. The term “Birth Certificate” can refer to either the original document certifying the circumstances of the birth or to a certified copy or representation of the ensuing registration of that birth. On the face of a birth certificate as argued by the Deputy A-G, Godfred Dame (in defence of the SC decision) in an interview, there is no additional mark of identification such as photograph or thumb print to actually link the holder to it. Also, the information it contains may not necessarily be traceable to the holder of the certificate. He emphasized the Court’s crown argument that Birth Certificate does not provide evidence of citizenship. He tried justifying that position by saying, a child born by foreign parents on the territory of Ghana may be issued with birth certificate in Ghana but may not necessarily be citizen of Ghana per Article 6 of the 1992 Constitution.
To some extent, in respect of identification, the arguments seem reseanable and one might agree with them. But to me personally, those arguments are not convincing enough as the basis for rejecting birth certificate as a form of identification. With due respect, their arguments seemed narrow and situated only in the case law (of Abu Ramadan No. 1 and 2) without exploring further into jurisprudence or natural law arguments, which the apex court has all the power and the legal acumen of doing.
Extention of the arguments beyond the positive law and case law, into jurisprudence brings to the fore a convincing evidence that even if name, place, and date of birth do not establish the identity of a person, at least, the information of parents provided on the birth certificate should give a clue to establish a blood relation to the holder and subsiquently the holder’s citizenship or nationality by birth. If we are to go by this understanding (though grounded in judisprudence) then birth certificate could equally satisfy the requirements of Article 42 of the Constitution. More so, birth registration and certification remain a continuous and permanent recording of the occurrence and characteristics of birth which is in accordance with the legal requirements of the country.
In recognition of the importance of having a citizenship or a nationality, a number of regional and international human rights instruments include those rights. Article 15 of the Universal Declaration of Human Rights states that, “[e]veryone has the right to a nationality” and that “[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. The right to a nationality by birth is often articulated through protection of the rights of children and the principle of non-discrimination. For example, Article 7 of the Convention on the Rights of the Child states that every child has the right to acquire a nationality, while Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination requires States to “prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights . . . the right to nationality or citizenship”.
Also, promoting children’s right to birth registration and certification falls clearly within UNICEF’s mandate. It has been a key component of its programming since the late 1990s. In oractice all persons born or naturalized in the United States and subject to the jurisdiction thereof, are automatically citizens of the United States and of the State wherein they reside. Therefore, Birth Certificate remains a fundamental document in acquiring other documents or to enjoy certain rights reserved for the citizens or where other documents are in doubt. The right to citizenship by birth is of paramount importance to the realization of other fundamental human rights, described in the case of Trops vrs Dulles, US (1958) as “the right to have rights”.
The fact that Birth Certificate could possibly be obtained by foreign nationals or illegally acquired or may provide false information, just like any other official document, does not invalidate its existence or make it valueless as a means of identification since it does not contravene any law. Of course, it is issued by a State authority linking the holder to a tracable and identifiable parents. Specifically, the Births and Deaths Registry was established by Act 301 of 1965, within the Ministry of Local Government and Rural Development, to handle and develop the births and deaths registration system in Ghana. I think, for those concerns we should rather pay serious attention to the systemic failures and lack of control. The next section answers the question on how citizenship is acquired in the Ghanaian practice.
Acquisition of citizenship in Ghana
Article 42 of the 1992 Constitution does not answer the question of who is a citizen of Ghana? Rather it answers the question of, who has a right to vote? It states, “Every citizen of Ghana of eighteen yeas of age or above and of sound mind have the right to vote and is entitled to be registered as a voter for the purpose of public elections and referenda”. Citizenship is, therefore, just one of the three (3) pre- conditions set in Article 42. So, how is citizenship aquired in Ghana?
The fact that citizenship falls within the jurisdiction of States means that the basis of the law varies from State to State. However, certain broad generalizations are possible. In the practice of States generally, citizenship can be acquired by birth, marriage, adoption or by naturalization. Any of them may be lost by voluntary renounciation or involuntary deprivation. For the purpose of this article I will focus on citizenship by birth based on the Ghanaian law and practice.
By Article 6(1) of the 1992 Constitution of Ghana “Every person who, on the coming into force of this Constrtution, is a citizen of Ghana by law, shall conrinue to be a citizen of Ghana”. It continues in 6(2) “Subject to the provisions of this Constiturion, 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 grand parents is or was a citizen of Ghana”
These constitutional provisions together with the Citizenship Act, 200, Act 591 have placed special value on “birth” and “parentage” as evidence of citizenship or nationality of Ghana. These provisions proceed from the fundamental principles of ‘jus sanguinis’ (right of blood) which makes birth the primary means of acquiring citizenship in Ghana. If both or one of the parents of a child is a citizen, then the child is by the principle of “sanguinis” also a citizen of Ghana.
Note that in some Latin American States, like Argentina, Brazil and Bolivia, citizenship is determined not only by the parents’ citizenship but also by the principle of “jus soli” (the right to soil). In other words, a child utomatically acquires the citizenship of the sovereign territory on which the child is born. This practice often gives rise to a situation described as “conflict of laws” whereby a child may receive dual citizenship or become a stateless child. This makes “place of birth” rather than “parentage” relevant in determining citizenship or nationality in those jurisdiction.
Some European states practice both “jus sanguinis” and “jus soli” in different circumstances. As already noted above, Ghana in principle goes by “sangunis” which has a link to “parentage”. It is, therefore, confusing if the information of parents on a Birth Certificate cannot provide evidence to determine one’s citizenship in Ghana.
From the foregoing analysis it is clear that birth certificate cannot be devalued or abandoned. It is used as a prof of citizenship in the absence or lost of other IDs. The parentage information on it gives an indication of citizenship or nationality. Registering a child’s birth is a critical first step towards safeguarding lifelong protection. It is therefore imperative that the law must be simplified and understood by the ordinary man on the street.
The fact remains, however, that this decision was unanimously taken by the apex court and has no room for review. Supreme Court decisions are mostly final (res judicata) unless, in their own opinion, the earlier decision is circumscribed both in fact and law, and requires judicial review where article 133(1) of the 1992 Constitution applies. Their final decision is the law and the law properly so called. A political party has little or nothing to do with a unanimous decision of a Supreme Court. Ghana is a common law country, and the common law of Ghana ‘shall’ comprise the rules of law generally known as the common law, the rules generally known as the doctrine of equity and the rules of customary law including those determined by the Superior Court of Judicature. We can only express our opinion about what the law ought to be, and help broaden the philosophy of the law.
[For further reading on some of the issues on citizenship, see, O. K. Seneadza, “The Law of Citizenship: International Questions Arising, Faculty of Law, KNUST Law Journal, Vol. 1 No 1, (2004)].
The writer is with the Law faculty of the Kwame Nkrumah University of Science and Technology.