Ghana: Asare v. Attorney General (J1/6/2011) [2012] GHASC 31

Published: 22/May/2012
Source: Supreme Court of Ghana

Holding that additional restrictions on public office for dual citizens provided in legislation are constitutional:

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.

[…]

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.

[…]

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 […].’

Read full judgment: https://ghalii.org/gh/judgment/supreme-court/2012/31

Themes: Dual Nationality, Nationality of Politicians
Regions: Ghana
Year: 2012