When a Ghanaian is not a Ghanaian

My friend, Samuel Kwaku Binfo Akowuah is a legal resident in the United Kingdom. Indeed, he and his family have been domiciled there, legally, for the past 20 or so years. Mr Akowuah was born in Ghana to Ghanaian parents, schooled here, before travelling abroad. He still holds on to his Ghanaian passport, a prime evidence of a person’s nationality or citizenship.

Therefore, Mr Akowuah is not a British citizen. But Mr Akowuah votes in British elections without a sweat. Meanwhile, Mr Adepoju, born in Ghana to Papua Guinean citizens in similar circumstances would not be allowed to vote in Ghanaian elections. If he were resident in America, legally, he would be allowed to vote in elections even though he was not an American citizen.

The Concept of Citizenship

Citizenship, like most governmental concepts, remains meaningless unless the specific legal regime of the state concerned is raised to illuminate it.

International law recognises two principal legal regimes governing the conferment of citizenship on individuals. These are the ‘Jus sanguinine’ and the ‘jus soli’ principles. We can liken it to the maternal and the paternal family systems where in the case of the Akan, a child is a bonafide member of her mother’s family which is based on blood whilst that of the Ewe is belongs to his father’s family based on the soul of the father. Of course, there are several other means of acquisition of citizenship which is determined by each country.

The ‘jus sanguinine’ principle is what we referred to as citizenship by birth through blood. That is who ‘born dog’? The test for one’s citizenship is thus his parenthood. Ones you are able to proof that either or both of your parents are citizens, then you automatically qualifies to be a citizen of their country. Here, it doesn't matter where one is born. Ghana and Britain operate the citizenship by birth by blood principle.

The ‘jus soli’ principle is what is known as citizenship by soil. The son or daughter of the soil. The test is to provide evidence of where you were born. Once you are able to prove that you were born within the jurisdiction, then your citizenship is affirmed. The United States and Germany are among the few countries where citizenship by soil is guaranteed.

Thus, citizenship by birth, just like I tired to explain party systems the other time, is not s straight forward issue as the uninitiated would take it to mean. It is as technical as the off-side rule in football.

Who is a Citizen?

The issue of citizenship is muted until when a person is seeking for a passport or to vote in an election. The acquisition of passport is a process where the citizenship of a person becomes contentious. Just like everyone within a household in the Akan areas in Ghana is a member of the family unless the contest for the occupancy of the stool comes up. That is where the slave and the royal is openly designated.

The issue of citizenship regarding acquisition of a passport is universal. In Ghana, the obvious question that arises is who is or are your parents or grandparents. Once you are able to provide that evidence, your request for a passport would be granted, provided either of your parents is a citizen of Ghana.

In the United States, with its ‘jus soli’ legal regime on the other hand , the test is to produce evidence of the place of birth. Once, you are able to show that you were born on American soil, your passport would be given to you.

Birth Certificate

When a person is born, he is given a name by his parents. The issue of the place and parents is never contentious in a simple society where everybody knows everybody. But when societies become complex due to urbanisation, industrialisation and migration, then there arises the need to document the birth of a person. The document that records the relevant data regarding the birth of a person is the Birth Certificate. The data that is recorded on a Birth Certificate includes the date and place of birth and the parents of the child. It is this document that is to be provided when a person seeks to acquire a national document such as the passport.

It thus follows that in America, with its ‘jus soli’ citizenship principle, the data of relevance would be where the child was born. I believe the process commences as soon as the child is born. Under a ‘jus sanguinine’ system just as ours, the data to consider is the parents. So in America, if the birth certificate indicates that the child is born in America it becomes an automatic indication of a person’s citizenship. In Ghana, it is the parents who are scrutinized to determine their citizenship before same is conferred on the child.

Citizenship, Birth Certificate and Elections in Ghana

To appreciate the cacophony of noise generated by politicians and academicians regarding the recent Supreme Court Ruling in the National Democratic Congress v Attorney General, Electoral Commission, one needs to read Article 42 of the 1992 Constitution, Section 7 of the Citizenship Act 2000, Act 591, and Section 8 of the Registration of Birth and Deaths Act, 1965, Act 301 and Public Elections (Registration of Voters) Regulations 2020, (C.I. 206).

The issue before the Supreme Court was to determine whether the exclusion of the birth certificate as an evidence of identification for registration by the Electoral Commission (EC) as stipulated in C.I. 206 is unconstitutional. Once the protagonists were the NDC and the NPP in disguise, any outcome of the case was destined to be controversial as the controversy itself.

The relevant legal provisions to assist us to critique the decision of the Supreme Court are Articles 6(2) and 42 of the 1992 Constitution, Section 7 of the Citizenship Act 2000, Act 591, and Section 8 of the Registration of Birth and Deaths Act, 1965.

Article 6 (2) of Constitution 1992 states: ‘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 he date of his (her) birth if either of his parents or grand[parents was a citizen of Ghana’. Section 7 of Act 591 also states: ‘A person is a citizen of Ghana if he was born on 7th January, 1993 or born after that date in or outside Ghana and at the time of his birth either of his parents or grandparents was a citizen of Ghana’. Finally, Section 8 of the Registration of Birth and Deaths Act, 1965, Act 301Act provides that the birth of a child in a district to which the Act applies shall be registered by he registrar in the district in which the child is born.

Simply put, the EC is mandated to register Ghanaian citizens only for election purposes. And Ghanaian, citizen by birth is one whose either parents or grandparents is a citizen of Ghana, irrespective of where he is born. This is the jus sanguinine principle. The birth certificate is a document which registers persons born in Ghana. It does not necessarily indicate the citizenship of that person. Granted that the citizenship of the parent is recorded in it, it does nothing more than registering. There is nothing done by the Registrar to authenticate citizenship of the parents. The birth certificate register would necessarily contain every child born in Ghana regardless his parent.

Therefore, if the EC is registering Ghanaian citizens for election purposes, it would be difficult to suggest that a birth certificate should be used as an identification of a persons citizenship. Just like it would be customary wrong to include anybody within the royal household as a contestant in a chieftaincy contest.

Interestingly, the people who speak in favour of the birth certificate as a form of identification do not tell us what is to be identified. The counter argument is that, the passport should not be used either if the source document is determined to be inadequate. I tend to agree to some extent with this position. Except that, the process in acquiring a passport is more rigorous to determine ones citizenship than the birth certificate. The reason why you have to fill a form which includes all the data in a birth certificate. The EC does not possess an unlimited time in compiling a voters register to subject a birth certificate to such rigorous scrutiny.

Have we also asked why nobody raised a finger when the Electoral Commission refused to include the birth certificate as an identification document in the previous CIs? Perhaps, the inclusion of the voters register as a citizenship identification document served their purpose. But Abu Ramadan case had dealt with that one. They never realised that there was going o be a double whammy. The problem is the academicians who failed to identify and discuss the ramifications of the Abu Ramadan case. Yet again, they might also have put on their mufflers under their gowns when they mounted the podium.

Conclusion

Be as it may, the Law Lords have spoken. Alas, there is little time to mount another legal challenge at he Supreme Court. I wish the politicians and the professors would focus attention on the policies of the parties in terms of delivery by the incumbent and the prospect f delivery by the opposition. That is the only way t compel them to be civil in their engagements.