Ghana’s year of return: Citizenship without political rights

By: Professor Kwaku Asare

Ghana has declared 2019 as the “year of return” for Africans in the diaspora, as part of its commemoration of the 400th year since the first slave ship from Africa landed in Virginia. The declaration and related events are aimed at reviving the movement to unite Africans on the continent with their diaspora brethren. To this end, the government plans to confer Ghanaian citizenship on 200 African-Americans. The country has always been a trailblazer at reaching out to the African diaspora.

For instance, Ghana’s first Prime Minister, Kwame Nkrumah, is well known for framing Africa’s liberation around the concept of Africans all over the world resettling in Africa. The tombs of the great African-American civil rights leader, W. E. B Du Bois, and his wife, lie in the heart of Accra, just a few meters from the US embassy. In 2000, the country provided for a “Right of Abode” law, which allows any person of African descent in the Diaspora to ingress into and egress out of the country without hindrance. In 2007, the government initiated the Joseph Project to commemorate the 200th anniversary of the abolition of slavery by the British parliament and to encourage the African Diaspora to return home.

The “year of return” also targets natural born Ghanaians who, for a variety of reasons, have relocated to the diaspora in recent times. Because Ghana is a net sending (emigration exceeds immigration) country, this population is significant and is estimated at 235,000 in the United States alone.

Quite apart from rekindling the socio-cultural tissues that bind the country and the African diaspora, the government understands, appreciates and is keenly aware of the economic impact that a returning African Diaspora can have on the country’s economy. In fact, to be eligible for the “Right of Abode,” the government must be satisfied that the applicant is capable of making a substantial contribution to the development of Ghana. In 2018, remittances from Ghanaians in the diaspora to the country reached $3.8 billion (approximately 8% of GDP). Ghanaians in the diaspora also represent a source of entrepreneurial capital and have become an important lobby group for Ghana in their new countries.

Whether it is the African diaspora, who are natural citizens of other countries, or natural-born Ghanaians, who have acquired the citizenships of their new countries, the quest for reunification must contend with the reality of plural citizenship. For a variety of reasons (economic, emotional, sociological and legal), the returnees are unlikely to give up their foreign citizenship to acquire or retain their Ghanaian citizenship. In 1996, the government confronted this reality by joining the growing list of countries that allow plural citizenship.

While the government welcomes plural citizens because of their calculated impact on the economy, it is also very deliberate in excluding them from the political space. Using an archaic constitutional allegiance clause, inherited from the British in 1957, and a series of laws passed by Parliament, plural citizens are automatically disqualified from holding about 30 public offices, ranging from serving in the legislature, executive or the country’s Supreme Court to forming or leading a political party, serving on the country’s election management board, serving on the Lands Commission or even serving as the country’s chief fire officer.

These wide-ranging exclusions are in place ostensibly because of questions about the allegiance or loyalty of plural citizens but more likely because of their calculated impact on the politicians’ political fortunes. After all, allowing plural citizens to operate in the political space increases political competition, which, even if beneficial to the political economy, does not inure to the benefit of non-performing incumbents.

Whatever the actual reason for the exclusions, the country then seems to be doing no more than offering “status citizenship” to these returnees. But the concept of citizenship is more than status. It is a bundle of rights, prominent among which is the right to participate equally and fairly in the political space. Citizenship is vacuous if it does not confer the right to have a voice in the legislature or the right to join existing political parties as executive members or the right to form a new political party to protect one’s interest. With these exclusions, it is apposite to state that the country is offering these returnees fractional, not plural, citizenship —economic, not political, citizenship.

History of Plural Citizenship

Ghana’s history of plural citizenship has been coloured by its colonial ties, commonwealth origins, migration policies, porous borders and leading role in Pan-Africanism. As such, unlike most western democracies that historically had an aversion to plural citizenship, the country, ironically, started as a land of plural citizens. Its first citizenship law, passed in 1957, not only provided for Ghanaian citizenship but also allowed the inhabitants to maintain their former citizenship of the United Kingdom and Colonies or British protected persons. Further, by virtue of their Ghanaian citizenship, they also acquired commonwealth citizenship.

In consequence, the inherited monarchical constitution of 1957 did not bar plural citizens from holding office, even though it had an allegiance clause requiring legislators not to owe allegiance to other countries. Thus, all the country’s leaders at independence were plural citizens. Some, like Augustus Molade Akiwumi, the second Speaker of the Parliament, was actually a natural born Nigeria who naturalized as a Ghanaian. This is hardly surprising as the British Parliament, which served as a model for the Ghanaian Parliament, did not have any prohibitions against legislators holding plural citizenship. This is also true of other Commonwealth countries, such as Nigeria, Canada and New Zealand. Gabon recently appointed Professor Lee, a renowned conservationist, who has dual British-Gabonese citizenship to be the minister in charge of the sustainable development of the country’s forestry and oceans and to ensure that the country meet its self-imposed target of reducing greenhouse gas emissions.

The notion that allegiance is not synonymous with citizenship is also evident in the United States where naturalized citizens take an oath to “absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen.”

Historically, the allegiance clause, which originated in serfdom, had allowed the King to control British citizens perpetually but had never been conceptualized as an office holding-exclusion instrument. The Americans responded with their own version of allegiance in what is commonly known as the expatriation doctrine, ultimately culminating in the war of 1812 when the British impressed former citizens who had naturalized in the United States.

The exclusion of plural citizens from Ghana’s political space started with politicians politicizing allegiance, deporting members of the opposition parties, defying court orders not to deport some bona fide Ghanaian citizens, tinkering with the statutes and eventually constitutionally outlawing plural citizenship in the second (1969), third (1979) and fourth (1979) republican constitutions.

However, many prominent Ghanaians have resisted the urge to outlaw plural citizenship or exclude them from holding public office. For instance, during his contributions to the 1968 constituent assembly, which ushered in the second republican constitution, former President Kufuor said that “precluding plural citizens from occupying high positions in our society will not be in conformity with civilization and natural justice.” In the same year, Dr Obed Asamoah, one the country’s longest serving Attorney General, added that he “does not see why some Ghanaian citizens should have lesser rights than others.” Mr Joe Appiah also reminded the nation in 1968 that “plural citizens fought for this nation and we must learn to live in unity.”

The Exclusions are Irrational

When the Republic had an opportunity to justify these exclusions at the Supreme Court in 2012, it raised the issue of fidelity and loyalty and invited the Court to ponder over 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 the UK if there is a diplomatic row between Ghana and UK when the same Ghanaian High Commissioner holds British citizenship as well?”

The plaintiff pointed out that the loyalty and fidelity arguments are not legal arguments; that the Republic is unable to cite a single legal authority or adduce empirical evidence to support those imaginations and hypothetical scenarios; and that it may rather be observed that all those who have engaged in treason by overthrowing the constitutionally empowered government of the country have all been single citizen Ghanaians.

Surprisingly, while the Court agreed with cogency of the plaintiff’s argument, it held “that 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.” In other words, on the question of whether the law discriminates against plural citizens, the Court was willing to applied a standard even lower than rationality. Anything goes!

The Court was also not willing to give plural citizens a higher level of protection when it comes to their political rights. Here, the Court held that the exclusions “do 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.”

Is the Court concerned at all about plural citizens’ political rights? Apparently, yes, “since the legislation also gives power to Parliament to specify any office from which plural citizens will then be disqualified from holding.” Here the Court holds that “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).” In effect, a pathetic jurisprudence of any office is excludable as long as all offices are not excluded.

Of course, the loyalty and fidelity arguments are largely questionable, speculative, misconceived and even nonsensical grounds for a policy to exclude all plural citizens from holding public office. The exclusions are not rooted in law, economics, or history or anything that is remotely rational. There is no empirical evidence that questions the fidelity and loyalty of plural citizens and the perceived conflict of interest inherent in the Republic’s claim is best cured by case-specific disclosures or recusals not overbroad exclusions of citizens. In recent times, Prime Minister Netanyahu has credited Meyer Habib, a French Israeli in France’s Parliament, for the cooperation of the two countries in fighting terrorism.

The Exclusions are Selectively Applied

In a case challenging the eligibility of former President Jerry Rawlings to run for President, the judge distinguished between allegiance and citizenship and held that “even if on attaining the age of 21 he had dual citizenship (which is not admitted), the irresistible inference which the court draws from the oaths of allegiance he took on these several occasions, is that the first defendant does not owe allegiance to any foreign government.” President Rawlings had asserted in his affidavit that he was at birth a British subject who in January 1949 became a citizen of the United Kingdom and Colonies and in May 1957 became a citizen of Ghana by operation of the first Ghana Nationality and Citizenship Act. On the other hand, a court sentenced a legislator, Adamu Sakande, to jail for being a dual citizen without making a distinction between allegiance and citizenship.

The constitutional conundrum inherent in using allegiance as an exclusionary instrument was recently on full display when legislators of NPP, the ruling party, proposed an amendment to the Party’s constitution to the effect that “A person shall not be qualified to hold executive position in NPP if he owes allegiance to a country other than Ghana.” According to the caucus, they were merely importing Articles 55(8) and 94(2)(a) from the national constitution into the party’s constitution.

The move was resoundingly defeated when the President, Nana Addo Dankwa Akufo-Addo, stated that “the motion to amend the constitution of the party, which will make it impossible for dual citizens to hold party office and contest for election will lead to the collapse of our overseas branches and will be withdrawn.”

These events compel asking an obvious question:

How can a provision of the National Constitution be considered too toxic for inclusion in a political party’s constitution?

Alternatively, what is the case for retaining in the National Constitution articles that are considered too toxic for inclusion in the constitution of political parties?

In my opinion, the Allegiance Article is a historically harmless Article that has been purposefully misunderstood and opportunistically misapplied. Alternatively, if my argument is not sustainable then the Article, as understood and applied, is too toxic to remain in the Constitution. Either way, it is time to Repeal the Article and other related exclusionary articles and Statutory enactments from the Constitution and the Statutes.

Ritual of Renouncing

The exclusion laws have given birth to a new ritual of pre-confirmation renouncing of foreign citizenship by some political nominees. Yet, such last-minute renunciations are an “ostrichian” ritual, which is no cure for the underlying problem, if indeed there was a problem. If the underlying argument that a person who holds another citizenship cannot be trusted to hold certain public offices, in what sense is that trust deficit cured merely by an opportunistic renunciation of the other citizenship?

Such renunciations are problematic because they also lead to loss of residence. Further, renouncing is discriminatory because it treats permanent residents differently (no loss of residence to serve in Ghana). In some cases, renouncing citizenship could lead to loss of profession or investment, curtail the ability to return to the renounced country, lead to loss of social security and other health entitlements in the renounced country, and require natural born dual citizens to choose between parents.

It is probably wiser for plural citizens who want to serve in the country to join the crusade to repeal the laws on exclusion rather than taking the easy way out by renouncing their citizenships and providing the ammunition to exclude their children.

Revitalising Ghana’s Brain Trust

Ghana developed a brain trust in the 1960s on the hope that it will lead to future brain gain. However, the years of a military rule imposed a brain pain that led to massive brain drain. Repealing the exclusionary laws is sine qua non to attracting the brains back to fulfil their trusteeship role and to tapping into their wealth with various diaspora financial vehicles. Questioning their fidelity is incongruous to asking them to be patriotic.

The Fierce Urgency of the Repeal

Exclusions from the political space is a common strategy employed by politicians to reduce political competition in Africa. In, Rwanda, Liberia, Nigeria, Ethiopia and Cote d’Ivoire, politicians have used variants of exclusionary citizenship to disqualify political opponents, who are bonafide citizens, from holding office. Alas, grievances relating to citizenship rights are the primary cause of conflict in post-independence Africa.

Conclusion

If Ghana is serious about the “year of the return,” it should take immediate steps to repeal the laws that exclude plural citizens from its political space.

Creating a category of Ghanaian citizens who are valued for their economic potential but whose potential to contribute to the political space is devalued and questioned is antithetical to the principle of equal citizenship, which not only animates the country’s Constitution but was the basis for the state created in 1957, after independence from the United Kingdom.

Further, at best, it undermines the country’s commitment to the African Diaspora and, at worst, suggests a country that is forging a new exploitative economic relationship with the African Diaspora.

Professor Stephen Kwaku Asare is a Democracy & Development (D&D) Fellow in Public Law and Justice at CDD-Ghana. A KPMG Professor in accounting at the Fisher School of Accounting, Professor Asare is better known in Ghana as a public intellectual and scholar-activist whose contributions and activism, including as plaintiff in a number of precedent-setting cases before the Supreme Court of Ghana, are helping to push the frontiers of governance and the rule of law, particularly in the area of constitutional law and practice.

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