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The Supreme Court never erred in its Birth Certificate decision

Tue, 21 Jul 2020 Source: Harold Boateng

The recent decision of the apex court brings into sharp focus the similarity or difference if any, between the concept of Nationality and Citizenship.

Article 15 of the Universal Declaration of Human Rights affirms that “Everyone has the right to a nationality” and “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. A person’s nationality is crucial to him/her having full recognition under international law and being accorded necessary courtesies.

While it differs from country to country, Nationality is acquired by birth or adoption, marriage, or descent. The right to a nationality is a fundamental human right. International human rights law provides that the right of States to decide who their nationals are is not absolute and, in particular, States must comply with their human rights obligations concerning the granting and loss of nationality.

Citizenship on the other hand is a much narrower concept with a specific legal relationship between the state and a person. Citizenship in Ghana is a question of law. Chapter 3 of the 1992 Constitution of the Republic of Ghana and the Citizenship Act, 2000 prescribes who a citizen is. A person can be a citizen by birth, registration through marriage, foundling, adoption and by naturalization. In some countries, for example, in Mexico, a person acquires nationality at birth but receives citizenship only upon turning 18 years. This means that Mexican children, therefore, are nationals but not citizens. In the United Kingdom for instance, since the British Nationality Act 1981, it is no longer possible to acquire British citizenship by reason only of being born in the United Kingdom. Since 1 January 1983, a child will become a British citizen if one of his/her parents is a British citizen or is settled in the United Kingdom.

Citizens enjoy certain rights and responsibilities. One of such enviable rights is provided in Article 42 of the Constitution which states that: “Every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda.” Clearly to be registered as a voter, one must provide evidence that he or she is a citizen of Ghana, is a eighteen years and above, and obviously of a sound mind.

The Electoral Commission which is seized with the mandate, as provided in Article 45(a) of the Constitution “to compile the register of voters and revise it at such periods as may be determined by law”, excluded the use of Birth Certificate as a mode of identification in the Public Elections (Registration of Voters) (Amendment) Regulations, 2020 (C.I. 126). The Supreme Court in a unanimous decision found no merit in the contention of the plaintiff in Mark Takyi-Banson v Electoral Commission and Another to include Birth Certificate as a mode of identification.

This decision of the apex court goes to the root to further fortify the provisions in respect of Citizenship by birth.

In Ghana, to become a citizen at birth, the Constitution in Article 6 provides that: “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.” Citizenship by birth is conditional on having at least one of your parents or grandparents being a citizen of Ghana.

The Births and Deaths Registry are mandated by law in Ghana to register all births. The Registration of Births and Deaths Act, 1965 (Act 301) ensures the registration of all births, deaths and fetal deaths. It also addresses fraud, alterations in the register, offences and penalties. By law the time allowed for registration? is within the first year of birth except where a written authority is given by the Registrar and the prescribed fee is paid. The Act imposes a legal obligation to register the birth of a child and an official birth certificate is issued as a result of birth registration.

It is important to note that the requirements for birth registration is an Immunization card and the Name of the child. The information collected at the registration

a. in respect of the child are:

Name, Date of birth, Sex, Place of occurrence [of the birth], Type of place of occurrence (hospital, home, etc.), Date of registration, Place of registration, Attendant at birth, Type of birth (single, twin, triplet and so forth)

b. Regarding the mother of the child:

Date of birth or age, Educational attainment, Place of usual residence, Children born alive to the mother during her entire lifetime, Birth order parity, Maiden name, Nationality

c. Regarding the father of the child: Date of birth or age of the father, Educational attainment, Nationality, Occupation (whether gainfully employed), Religion

Suffice to state that while the law provides that “…a person born in or outside Ghana… 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” the information provided by his or her parents at the time of registration has to do with their [parents] Nationality and not Citizenship.

Clearly the citizenship of a person at birth can not be evidenced by the issuance of a birth certificate. The details required to issue the Birth certificate fails to meet the requirement for the basis of one’s citizen which is either of his parents or grandparents must be a citizen and not a national.

Persons of a British national (overseas) are required to register as a British Citizen and meet certain conditions. Nationality is a given, same cannot be said of Citizenship. There are British nationals who are not British citizens. A person’s nationality differs from his citizenship.

I must concede that there exist a thin line between Nationality and Citizenship, a person can become a national of a country by birth or by inheritance. As against this, there are a variety of ways through which an individual can become the citizen of a country, i.e. by birth, inheritance, marriage, naturalization. The nationality of a person cannot be changed. However, his citizenship can be changed. Also, a person cannot be a national of more than one country. In contrast, a person can possess citizenship of more than one country at a time. One is acquired by birth and the other is acquired by law.

I am of the firm opinion that the learned judges of the Supreme Court did not err in their undisputed judgement that the non-inclusion of birth certificate as a document for the identification of a person who applies for registration as a voter by C.I 126 is NOT consistent with or in contravention of the Constitution, or any other law.

A birth certificate cannot be accepted as a proof of ones citizenship.

Columnist: Harold Boateng

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