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Opinions Sun, 19 Jul 2020

Is the Supreme Court assertion on birth certificate 'per incuriam'?

I have had the opportunity of reading the written judgement of the Supreme Court (SC) in the case of the National Democratic Congress/Mark Banson v the Electoral Commission (EC)/the Attorney General and whilst I agree with most of their decisions and reasons behind them, I am baffled by the assertion that birth certificate (bc) does not establish citizenship.

This article is the analysis of the section relating to bc as contained in pages 26 to 28 of the written judgement.

Let me put on record that I have no problem with the SC affirming that bc is not an acceptable identification document for the purpose of registering to vote because it has never been and therefore customary practice has been established. However, I strongly disagree with the SC that bc does not establish citizenship.

I reproduce the most relevant sections for easy reference. Among the reliefs Mr Banson, the 2nd Plaintiff sought from SC was, “an order directed at the EC to include under Regulations 1(3) of the Public Registration of Voters (Amendment) Regulations 2020 (C I 126) birth certificate as evidence of identification”.

The SC ruled that, “we find no merit whatsoever in the 2nd Plaintiff’s contention. It flies in the face of article 42 of the Constitution and the decision of this court in Abu Ramadan (No 1 and No 2), supra. 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 information on the certificate. Quite obviously, it provides no evidence of citizenship. It therefore does not satisfy the requirement of the 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 evidence of identification of a person who applies for registration as a voter in Abu Ramadan (No 1 and No 2), supra.

My reaction on reading the above was, are these factually correct? My answer is no because a Ghanaian bc issued in 2019 contains the name, date, place of birth and sex of the owner. It also states names, nationalities and religion of both parents, and occupation of father, place and district of issue.

Ghanaian bc therefore establishes beyond doubt that the citizen of the owner by “jus sanguinis” (by blood or ancestry), if one or both parents is/are Ghanaian national/s.

For these material facts, the above reasons given by the SC are factually incorrect, unreliable and unsafe.

It's important to note that nationality and not citizenship of parents are recorded on birth certificates. This is for no mean reason because nationality is a reciprocal legal relationship between the individual and the state. That is, duties of allegiance to the state and protection by the state.

It is also not true that bc does not link the holder with the information on it.

A simple test is to hold the birth certificates of a number of five year old Ghanaian children in a classroom, select one at random and call out the name as written on the bc and the child with that name will respond, so the name alone on the bc links it to an individual. Ask the child the names of the parents and the child will tell you.

That is further evidence that bc links the information on it to an individual. Some may be able to confirm their date and place of birth as further evidence of a connecting link to an individual.

Since the judgement also asserted that bc is a worse form of identification than the NHI card, I requested a photo of NHI card from Ghana. It only contains the name, date of birth and photo of the owner, date of issue and expiry date.

Is NHI card better form of identifying the citizenship let alone Ghanaian citizenship of the owner than bc just because it contains a photo of the owner? The answer is, absolutely not. Again, this assertion by the SC court falls flat on the face of the evidence.

The apex court also got it wrong that a Ghanaian bc does not meet the constitutional criteria in Article 42 of the Constitution because it establishes the age and Ghanaian citizenship of the owner or holder. If one or both parents is/are Ghanaian national/s then the child is automatically Ghanaian and the age could be determined from the date of birth. The two are not in doubt from a Ghanaian bc.

On the requirement for “being of sound mind”, both passport and Ghana Card do not indicate whether the owner or holder is of sound mind, so is bc but unless otherwise proven, it is reasonable to believe beyond doubt that the owner of a Ghanaian bc at a registration centre is of sound mind. Here again, this part of the judgement is not backed by the evidence.

In fact, it shows that the Justices who sat on the case have on idea what is contained on a Ghanaian bc. Otherwise, they would not have come to such erroneous conclusions.

We must remember that a birth certificate is not an ordinary document but a legal one that bestows rights on the bearer because it is a certified copy of an entry of birth in the registry and evidence or affirmation of birth. Nationality and citizenship are either by “jus sanguinis” or “jus soli” (by land).

These are internationally accepted norms. Therefore, the fact that birth certificates in Ghana could be obtained through corrupt means does not negate acceptable international norms.

The judgement concluded as follows: “It is little wonder that a birth certificate has never been included as one of the documents to be used as evidence of identification by a person who applies to be registered as a voter. We have quoted the relevance provisions of CI 72 and CI 91 in this judgement.

None of these specify a birth certificate as an identification document. Its introduction would be a retrograde step”.

Here, I agree partially with the SC that since both CI 72 and CI 91 excluded bc as a form of identification for registration purposes, it would have been prudent for the SC to say that a customary practice has been established so no harm would be caused by its continued exclusion and leave it at that, instead of this unjustifiable assertion that bc does not establish citizenship.

The judgement concluded, “We, therefore, hold that no-inclusion of birth certificate as a document for the identification of a person who applies for registration as a voter by CI 126 is not inconsistent with or in contravention of the Constitution, or any other law.

I disagree with the SC on the above for a number of reasons including the fact that the information on a Ghanaian bc meets the requirements to register to vote under Article 42 of the Constitution. Moreover, under Ghanaian Citizenship as spelt out in Chapter Three of the Constitution, Ghanaian bc meets every criterion stated under Article 6 of the Constitution, which states as follows:

“(1) Every person who, on the coming into force of this Constitution, is a citizen of Ghana by law shall continue to be a citizen of Ghana;

(2) 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;

(3) A child of not more than seven years of age found in Ghana whose parents are not know shall be presumed to be a citizen of Ghana by birth; and

(4) A child of not more than sixteen years of age neither of whose parents is a citizen of Ghana who is adopted by a citizen of Ghana shall, be virtue of the adoption, be a citizen of Ghana”.

The information on Ghanaian bc that links it to the owner do satisfy all the above and therefore the assertions that it does not meet Article 42 requirements, neither does it satisfy citizenship requirement are not true and therefore contrary to Article 6 of the Constitution because I have shown above that the information on bc links to an individual and if one or both parents is/are Ghanaian/s, then the bearer is a Ghanaian citizen. That is what the Constitution says.

Finally, Section 8 of the NIA Register (Amendment) Act 2017 (Act 950) specifically requires registrants to submit a number of documents and first on the list is bc. Therefore, for the SC to assert that bc does not establish citizenship is contrary to the NIA (Amendment) Act 2017.

The SC’s assertion that bc is not proof of citizenship is unsustainable because since time immemorial bc has been the main acceptable document to acquire a passport in Ghana and across the globe. A Ghanaian bc meets the requirements in both Articles 6 and 42 of the Constitution as it contains the nationalities of the bearer’s parents.

So, with such information, it establishes without doubt one’s citizenship either by “jus sanguinis” or “jus soli” as in Article 6.

For example, when President Obama’s nationality and citizenship and whether he could be president if he was not born in the US were questioned, it was his bc which proved beyond doubt that he was not only a US citizen but also born in the US.

The UK has no national photo identity card and relies on bc to establish citizenship because the information on the bc can establish whether one is a citizen by “jus sanguinis” or “jus soli”.

Of course, in the UK, proof of address such as bank statement, council tax bill and utility bills with one’s name and address will support the bc as proof of ownership. This Ghana can easily request proof of ownership in addition to bc to establish citizenship beyond doubt.

Is it not odd that one can obtain a passport and Ghana Card which were acquired with bc as proof of citizenship, yet the SC says bc is not acceptable as proof of citizenship under Article 42? What logic is that? It is now being argued that because when applying for a passport there are two guarantors. This is universal and not only in Ghana.

In any case, if there is reasonable suspicion that a bc is not genuine or does not belong to the owner, it can be challenged or the person could be asked for further evidence to prove that it is genuine and s/he is the true owner.

The additional information such as parents and residential address could also be verified. After all, we should not forget the principle of “affirmati non neganti incumbit probatio" (the burden of proof is upon him who affirms, not on him who denies).

I am not naive to assume that there are no problems with the acquisition of bc in Ghana. I am aware that dishonest people and corrupt officials make it possible for foreigners to acquire Ghanaian bc with relative ease.

But that is a problem for the state to find an effective solution to the integrity and reliability of Ghanaian bc and not administer collective punishment on citizens as a result of the state’s own failures.

The judgement by the SC is tantamount to throwing away the baby with the bath water to the extent that, plans are reportedly being made by the authorities to exclude bc from the acceptable documents for acquiring passport (see, “government to phase out birth certificate as requirement for acquiring a Ghanaian passport”, Ghanaweb, July 17, 2020).

This is a knee-jerk reaction to the ruling because the SC did not declare the use of bc to acquire a passport or NIA card unconstitutional but only asserted that bc on its own does not establish citizenship.

Since the Passport Office requires other proof such as two guarantors there is no need for any additional measures or stop the use of bc to acquire a passport can ask for proof of address (utility bills and bank statements) to support the bc.

The way forward is for all Ghanaians to acquire Ghana Card and immediate enactment of legislation requiring all births and deaths in Ghana to be registered within a specified period, not more than three months of birth and death, with a fine and or imprisonment for failure to comply within the specified period.

Finally, the authorities must implement measures to weed out the practice of acquiring birth certificates through corrupt means.

Ghana will become the first country in the world to reject her own birth certificate as proof of citizenship. She will be a laughing stock among the community of nations.

I wonder with this judgement and plans to exclude bc from the acquisition of passports, whether foreign missions in Ghana and governments across the world will reject Ghanaian birth certificates as evidence of citizenship.

This judgement is not only problematic but, in my view, also “per incuriam” (without care and a mistaken decision).
Columnist: Kofi Ata