Dr Abdul Basit writes: Ghanaian Citizenship, Voter Registration and Vouching
Dear Reader, if you are obsessed with getting the fine details of Ghanaian citizenship rules right, you really have a daunting task. To determine who is a Ghanaian citizen is not a walk in the park but a complex legal process involving a blend of our legal history, social and biographical facts about you, your parents, grandparents or even great grandparents. Yet our Electoral Commission and Parliament say, a fellow Ghanaian – an ordinary citizen unfamiliar with the complexities of our citizenship rules – can vouch or certify the citizenship of another person.
Our history and Government blunders on citizenship
In our recent past, our governments have had eggs on their faces. Two cases will illustrate this embarrassment. In Olympio v Commissioner for the Interior, the plaintiff claimed that he was a citizen of Ghana by descent and could not be lawfully asked to leave Ghana or to require permission to stay in Ghana. Having established that the father of the plaintiff was a Ghanaian national and his mother was born in Keta, Ghana, and aGhanaian by birth, the Court upheld his claim that he was a citizen of Ghana.
In the case of Bruce v AttorneyGeneral, the primary issue was whether or not the deportation order issued against the plaintiff was null and void and should be revoked because the plaintiff was not an alien but a British subject by birth. The court relied on an old German baptismal book which showed the ‘plaintiff’s place of birth as being in British territory and of the resulting position that he is [a] natural born British subject’ and allowed the plaintiff’s appeal against deportation.
If our governments could be spectacularly wrong on who qualified or qualifies as a Ghanaian citizen, what about the ordinary citizen?
This notwithstanding, our Electoral Commission and Parliament say, a fellow Ghanaian – an ordinary citizen, unfamiliar with the complexities of our citizenship rules – can vouch or certify the citizenship of another person.
Our citizenship laws are complex
As Bennion observes in his book “The Constitutional Law of Ghana” our citizenship law is “a matter of some difficulty”(p. 190). Because of the complex architecture of our rules on citizenship and in order not to disenfranchise any group of Ghanaians, it will interest you to note, Dear Reader,that from 1950 to 1995, a period of about 45 years, none of our laws on voter registration required a person who had applied to be registered as a voter to prove his/her citizenship by producing specific identification documents.
These laws consists of (a) the Elections (Legislative Assembly) Ordinance, 1950(CAP 270); (b) Electoral Provisions Ordinance, 1953 (No. 33); (c) Registration of Voters Regulations 1968 (LI 587); (d) the District Assembly Elections (Registration of Voters) Regulations, 1988(LI 1397); and (e) the Public Elections (Registration of Voters) Regulations 1995 (CI 12).
For that long period, our law-makers in their wisdom and ostensibly taking into account the social, geographical, political, cultural and legal context of the country selected, preferred and placed more emphasis on the regime of criminalization of false or fraudulent voter registration instead of proof of citizenship through the production of specifically prescribed documents to prove eligibility for registration as a voter or elector.
For instance, under CAP 270, Schedule 3, regulation 2(2) thereof, the Registration officer was required to receive “such evidence as may be necessary to prove to his satisfaction that the claimant possesses the qualifications in respect of which he claims to be an elector”. Section 14 of CAP 270 made it an offence for a person to make a false claim, declaration or statement in connection with the registration of electors. Moreover, section 12 of Electoral Provisions Ordinance, 1953 (No. 33) also criminalized false claims, declarations or statements in connection with registration of electors or voters. The same approach of criminalization of fraudulent or false voter registration is adopted in regulation 24 of the Public Elections (Registration of Voters) Regulations 1995 (CI 12) and section 27 of the Representation of People Law, 1992 (PNCL 284).
Now let me try to unpeel some of the layers of difficulty in our citizenship laws.
First layer of Complication
Note that four territories, (1) Gold Coast Colony, (2) Ashanti Colony, (3) Northern Territories Protectorate, and Trans-Volta(British) Togoland, with different legal histories, were put together to constitute the territory of present-day Ghana. The distinct history of each of the four territories has a role to play in determining whether or not you are a Ghanaian citizen.
If you or any of your parents, grandparents or great grandparents were born in any part of present-day Ghana that formed part of the Gold Coast Colony, and we desire a high degree of confidence in your status as Ghanaian citizen or not, we need to trace your family tree or citizenship all the way back to, at least,24th July 1874 when the Gold Coast Colony became a colony of the British Crown.
If you or any of your parents, grandparents or great grandparents were born in any part of present-day Ghana that formed part ofthe Northern Territories Protectorate or the Ashanti Colony our legal analysis must go all the way back to 1901 when the Northern Territories and Ashanti Colony were added to the Gold Coast Colony under British jurisdiction.
If you or any of your parents, grandparents or great grandparents were born in any part of present-day Ghana that formed part of British Togoland then our analysis should end at the earliest in 1914 or 1922 when the League of Nations after the 1st World War placed British Togoland under British Administration. If for persons linked with British Togoland you want to probe furtherbecause you are an ethnocentric bigot, you need to extend your legal analysis to cover German colonial laws on citizenship for the period 1884 to about 1914 when British Togoland was under German colonial rule.
2nd layer of complication
When we exclude the categories of Ghanaian citizenship by naturalization, registration and adoption, matters get overly complicated. Outside of these closed and discrete groups, if we want to determine whether you qualify as a Ghanaian citizen weneed to assess whether you or any of your parents, grandparents or great grandparents are affected by any of the laws below:
a. British Nationality and Status of Aliens Act 1914–1943;
b. British Nationality Act 1948;
c. Ghana Nationality and Citizenship Act 1957
d. Ghana Nationality Act 1961 (Act 62);
e. Ghana Nationality (Amendment) Decree, 1967 (NLCD 191);
f. Ghana Nationality Decree, 1969 (NLCD 333);
g. Ghana Nationality Act 361 of 1971 (Act 361);
h. Ghana Nationality (Amendment) Decree, 1972 (NRCD 134);
i. Ghana Nationality (Amendment) Decree, 1978 (SMCD 172);
j. Ghana Nationality (Amendment) Decree, 1979 (AFRCD 42);
k. Citizenship Act 2000 (Act 591);
l. Citizenship Regulations 2001 (LI 1690).
m. In some cases, rules of the English Common law.
How these laws will apply to you depend on where you, any of your parents, grandparents or great grandparents were born: whether in the (1) Gold Coast Colony, (2) Ashanti Colony, (3) Northern Territories Protectorate or British Togoland.
Simplifying the citizenship rules; but the devil is in the detail
Given the complexities of our citizenship laws, in the year 2000,Parliament passed the Citizenship Act 2000 (Act 591) in an attempt to amend and simplify our citizenship laws. However,the Citizenship Act is a circuitous piece of legislation that takes us back to the laws on citizenship mentioned above.
What are the rules in Part 1 of Act 591 on Ghanaian citizenship?
The most important rule (Rule 1) of our citizenship law is article 6(1) of our Constitution (repeated in section 1 of the Citizenship Act). This article states, “Every person who on the coming into force of the Constitution [i.e. January 7, 1993] was a citizen of Ghana by law shall continue to be a citizen of Ghana.
Rule 2: A person born before 6th March 1957 is a citizen of Ghana by birth if – (a) he was born in Ghana and at least one of his parents or grandparents was born in Ghana; or (b) he was born outside Ghana and one of his parents was born in Ghana.
Do not miss the import of the second limb of Rule 2. It implies that a person may be born in Togo, Burkina Fasso, Ivory Coast or in any other country and still qualify as a citizen of Ghana.
Rule 3: A person born on or after 6th March 1957 and before 22nd August 1969 is a citizen of Ghana by birth if – (a) he was born in or outside Ghana and either of his parents and also one at least of his grandparents or great-grandparents, was born in Ghana; or (b) in the case of a person born in Ghana neither of whose parents was born in Ghana, at least one of his grandparents was born in Ghana.
Again, pay attention to the first limb of Rule 3. It connotes that a person may be born in Togo, Burkina Fasso, Ivory Coast or in any other country and still qualify as a citizen of Ghana.
Rule 4: A person is not a citizen of Ghana under Rule 3 if at the time of his birth the parent, grandparent or great-grandparent through whom the citizenship is claimed has lost his citizenship of Ghana.
Rule 5: A person born on or after 6th March 1957 and before 22nd August 1969 is a citizen of Ghana by birth if – (a) he was born in Ghana and at the time of his birth either of his parents was a citizen of Ghana by registration or naturalization; or (b) he was born outside Ghana and at the time of his birth both of his parents were citizens of Ghana by registration or naturalization.
Similarly, kindly pay attention to the second part of Rule 5. It leaves no doubt that a person born in Togo, Burkina Fasso, Ivory Coast or in any other country could still qualify as a citizen of Ghana.
Rule 6: A person is a citizen of Ghana by birth if he was born in or outside Ghana on or after 22nd August 1969 and before 24th September 1979 and at the date of his birth either of his parents was a citizen of Ghana.
You can also see from Rule 6 that a person born in Togo, Burkina Fasso, Ivory Coast or in any other country and ordinarily resident in that country could still qualify as a citizen of Ghana.
Rule 7: A person born on or after 24th September 1979 and before 7th January 1993 is a citizen of Ghana by birth if – (a) he was born in Ghana and at the date of his birth either of his parents or one grandparent was a citizen of Ghana; or (b) he was born outside Ghana and at the date of his birth either of his parents was a citizen of Ghana.
Rule 8: A person is a citizen of Ghana by birth if he was born on 7th January 1993 or born after that date in or outside Ghana and at the date of his birth either of his parents or one grandparent was or is a citizen.
Well, you can figure out for yourself from the language of Rules 7 and 8 whether a person born outside Ghana and ordinarily resident in Burkina Fasso, Ivory Coast or in any other country cannot qualify as a citizen of Ghana.
Rule 9: A child of not more than seven years of age found in Ghana whose parents are not known shall be presumed to be a citizen of Ghana by birth.
Rule 10: Effective 16th December 1996 a Ghanaian citizen may acquire and hold the citizenship of another country in addition to his citizenship of Ghana. To apply for registration as a dual citizen you must at the time of the application be a citizen of Ghana.
Loss of Ghanaian citizenship
Assuming the application of Rules 1 to 10 stated above qualify you as a citizen of Ghana, you could still not be regarded as a Ghanaian citizen under certain circumstances:
Rule 1: Until the amendment of our Constitution in 1996 that allowed for dual citizens our laws generally prohibited dual citizenship. For this reason, prior to 16th December 1996 a Ghanaian citizen who acquired the citizenship of another country through a voluntary act immediately ceased being a citizen of Ghana.
Rule 2: Only persons who are Ghanaians can apply to be registered as dual citizens. What this means is that, all persons who acquired foreign nationality before 16th December 1996 in addition to their Ghanaian citizenship cannot lawfully apply to be registered as dual citizens while they hold the citizenship of any other country.
Rule 3: A person who has renounced or has been deprived of his/her Ghanaian citizenship loses his/her Ghanaian citizenship.
Needless to say it is this complex maze of citizenship inclusion and exclusion criteria that guarantors are expected to vouch for per the Public Elections (Registration of Voters) Regulations, 2016 (CI 91) as amended CI 126 if an eligible voter does not have an National Identification Authority card or passport in the imminent voters registration exercise otherwise you are excluded.
From the foregoing, it is abundantly clear our citizenship laws are so complex. There may be Ghanaian citizens by descent who have never stepped foot in Ghana and could assert their Ghanaian citizenship at any time. There are persons who started as Ghanaian citizens but unknown to them have ceased being Ghanaian citizens by operation of law.
Furthermore, there may be Ghanaians who have registered as dual citizens but who in fact did not meet the qualifications for registration as dual citizens because at the time of the registration they possessed the citizenship of another country.
There may be government ministers, officials and others who have no clue they lost their Ghanaian citizenship when they acquired US or British nationality during the time of their sojourn in the US and UK.
Therefore, given the complexities of our citizenship laws, it is quite intriguing that an ordinary citizen – unfamiliar with the complexities of our citizenship laws – can vouch for or certify the citizenship of another person during the impending voter registration exercise under CI 91 as amended by CI 126.
Meanwhile, some of our government officials or politicians with a penchant for inflammatory rhetoric and bombastic statements could spare us needless tension and unease if they ceased the public exhibition of their ignorance about our citizenship laws.
Dr Abdul Basit Aziz Bamba is a law lecturer at the University of Ghana, Legon.