Michael Ankomah Nimfah v. James Gyakye Quayson, The Electoral Commission, Attorney General [2023] DLSC15163

Material Facts:

Article 94(2)(a) of the 1992 Constitution of Ghana provides that "a person shall not be qualified to be a member of Parliament if he owes allegiance to a country other than Ghana".

The first defendant, James Quayson, was a dual citizen of Ghana and Canada. In 2020, he filed a nomination to contest for the parliamentary seat for Assin North Constituency when the second defendant, the Electoral Commission of Ghana, opened nominations for parliamentary elections. At the time of filing his nomination, despite having commenced a process to renounce his Canadian citizenship in 2019, he had still not received a Renunciation Certificate from the Canadian authorities. He, however, received the certificate after filing his nomination, but before the parliamentary elections on December 7, 2020. He won the parliamentary elections and was sworn in as a Member of Parliament for the Assin North Constituency.

The plaintiff invoked the original jurisdiction of the Supreme Court under article 2(1) seeking, inter alia, a declaration that the first defendant was not qualified to contest the 2020 Parliamentary elections at the time of filing his nomination forms because, having not received his renunciation certificate and still being a dual citizen, he owes allegiance to a country other than Ghana, contrary to article 94(2)(a).

Procedural History:

The plaintiff had earlier commenced an action in the High Court in a case titled Re Michael Ankomah-Nimfa (Suit No. CRP/E/3/2021, Unreported judgement of High Court, Cape Coast, dated July 28, 2021) seeking a nullification of the first defendant’s election as Member of Parliament. The High Court found that the first defendant was not qualified to contest the elections at the time of filing his nomination. The first defendant (James Quayson) claims that the decision is currently being appealed at the Court of Appeal.

While that action is still pending, the plaintiff commenced the present action in the Supreme Court, seeking the reliefs cited above.

Issues:

1. Whether the Supreme Court has the jurisdiction to entertain the present action
2. Whether the eligibility requirements for a person to be a Member of Parliament become operative at the time of filing nominations, at the time of the election, or at the time of being sworn in as a Member of Parliament
3. Whether upon a true and proper interpretation of article 94(2)(a) of the 1992 Constitution of Ghana , the first defendant was qualified to be a Member of Parliament

Arguments and Case of the Plaintiff:

1. Between October 5 and October 9, which was when James Quayson filed his nomination forms with the Electoral Commission, he was a citizen of Ghana and Canada and held both Ghanaian and Canadian passports. So, he had dual nationality, and this means he owed allegiance to a country other than Ghana, contrary to 94(2)(a).
2. In the case of Republic v. High Court (General Jurisdiction), Accra; Ex Parte Zanetor Rawlings (Ashittey and National Democratic Congress Interested Parties) (No 2) [2015–2016] 1 SCGLR 92 , the Supreme Court, in interpreting article 94 , decided that the eligibility criteria to become a member of parliament arise at the time of the filing of nominations. Consequently, the plaintiff was not eligible to contest for the parliamentary seat.
3. That citizenship and allegiance are intertwined, per the cases of Asare v. Attorney General [2012] 1 SCGLR 460 (Dual Citizenship Case) and Re Gallagher (2018). Consequently, the first defendant owed allegiance to Canada because he held Canadian citizenship, contrary to article 94(2)(a).

Arguments and Case of the First Defendant (James Quayson):

1. On jurisdiction, the Supreme Court has no jurisdiction to entertain the present action because a similar action was initiated in the High Court and an appeal against the decision of the High Court is still pending in the Court of Appeal. That the present action is merely forum shopping.
2. On jurisdiction, the present case is an election petition case that has been dressed up as a case regarding the interpretation of article 94(2)(a). Being an election petition case, it is the High Court that has jurisdiction to entertain the case by virtue of article 99 and section 16 of PNDCL 284.
3. On jurisdiction, the Supreme Court has stated in a number of cases, one of which is Bimpong-Buta v. General Legal Council [2003- 2004] 2 SCGLR 1200, that when a cause of action is of such a nature that it may be resolved by another court and not one lying exclusively within the jurisdiction of the Supreme Court, the court will decline jurisdiction.
4. On allegiance, that he had commenced proceedings to renounce his Canadian citizenship and therefore did not owe allegiance to Canada.
5. The Electoral Commission invited him to respond to the allegations that he owed allegiance to a country other than Ghana. It was only after he satisfied the body that he did not owe allegiance to a country other than Ghana that he was given permission to contest the election.
6. In Article 94(1), the framers explicitly mentioned that one must be a citizen of Ghana before he is qualified to be a Member of Parliament. However, article 94(2)(a) does not use nationality as a disqualification criterion but rather "allegiance." The disqualification criterion in article 94(2)(a) is not anchored on dual nationality, and if the framers had wanted it to be so, they would have stated just that.
7. The time of being "a Member of Parliament' is not when a person puts in his nomination to stand for election but rather when he is elected, gazetted, and takes his seat in Parliament after "taking and subscribing before the Speaker and in the presence of Members of Parliament, the oath of allegiance and the oath of a Member of Parliament set out in the Second Schedule of this Constitution.
8. Section 20(1)(d) of the Representation of People's Act, PNDC Law 284 states that the election of a person shall be declared void in an election petition if it is found that he was not qualified to contest "at the time of his election". Consequently, the time the eligibility criteria become operative is at the time of the election, not at the time of filing nominations.

Arguments of the Third Defendant (Attorney General)

1. In determining whether a person owes allegiance to a country other than Ghana, an objective test should be used rather than a subjective test because the courts cannot intrude into the minds of people to determine if they owe allegiance to a country other than Ghana.
2. The most objective way of ascertaining whether a person owes allegiance to a country other than Ghana is by establishing whether that person holds the citizenship of another country.
3. In Article 8 of the 1992 Constitution, dual citizens are prohibited from holding certain sensitive offices because the framers of the constitution intended to treat citizenship as reflective or indicative of allegiance.
4. Per the decision in Ex Parte Zanetor (supra), the time that the eligibility requirements arise is at the opening of nominations for the elections, not some indeterminable future time.

Holdings:

1. The Supreme Court has the jurisdiction to entertain the present action.
2. The eligibility requirements for a person to be a Member of Parliament become operative at the time the Electoral Commission opens nominations for registration of candidates for election as Members of Parliament.
3. On a true and proper interpretation ofarticle 94(2)(a), the first defendant was not qualified to be a Member of Parliament at the time of filing his nomination, at the time of his election, and at the time he was sworn in as Member of Parliament.

Ratio Decidendi:

On the issue of jurisdiction, there is a difference between the suit heard in the High Court and the present action. While the suit in the High Court merely sought the nullification of the election of the first defendant, the present case seeks an interpretation of article 94(2)(a) and cannot be said to be an election petition case dressed as an issue in need of interpretation. Further, the fact that the High Court has the jurisdiction to settle the validity of the first defendant’s election does not deprive the Supreme Court of its original jurisdiction under articles 2(1) and 130(1) to interpret and enforce the provisions of the constitution. Finally, the facts of the present case are similar to the earlier case of Sumaila Bielbiel (No. 1) v. Dramani and Another [2011] 1 SCGLR 132, wherein the Supreme Court, speaking through Gbadegbe JSC, held that it had jurisdiction because the case before it concerned an alleged breach of article 94(2)(a), which is different in scope from the case in the High Court, which was an action to invalidate the election of the defendant. While the Supreme Court can depart from the decision in Sumaila Bielbiel (supra), there are no cogent reasons to do so in the present case.

On the issue of when the eligibility criteria arise, the Supreme Court, speaking through Benin JSC in Ex Parte Zanetor (supra) , held that the eligibility criteria in article 94 become operative at the time the Electoral Commission commences the statutory processes for nomination and filing for parliamentary candidates. In Ex Parte Zanetor (supra), Benin JSC stated

It is our view that the eligibility criteria set out in article 94(J)(a) come into force only when a public election of a Member of Parliament has been declared by the Electoral Commission and it has set the time to file nominations. Thus, a person who qualifies to enter Parliament must be a Ghanaian citizen, of twenty-one years or beyond and a registered voter as at the time he files his nomination papers within the time stipulated by the Electoral Commission For that particular election. That is the true intendment of Article 94(1)(a) of the Constitution/ the eligibility criteria come alive from time to time when the Electoral Commission sets the date to file nominations for parliamentary election

The court upheld the above opinion and concluded that the time the eligibility requirements become operative is "…at the time when nominations are opened by the Electoral Commission for registration of candidates for election as Members of Parliament."

On the final issue, the ruling on whether the first defendant was qualified to be a member of parliament was dependent on the relationship between citizenship and allegiance and when it can be said that a person has renounced his citizenship.

Amegatcher JSC noted that the meaning of allegiance and its relationship with citizenship have been inferentially clarified and applied by the court in Asare v. Attorney General (2012), 1 SCGLR 460 (Dual Citizenship Case) . In that case, an issue arose as to whether dual citizens owed unalloyed allegiance to Ghana when Parliament, in section 16(2) of the Citizenship Act 2000, Act 591 , expanded the list of offices that could not be occupied by dual citizens. In that case, Atuguba JSC noted that certain offices are sensitive and must only be occupied by citizens who do not owe allegiance to any other country other than Ghana. He referred to the Report on the Committee of Experts (Constitution) On Proposals for a Draft Constitution of Ghana (presented to the PNDC, July 31, 1991), wherein it was stated that one of the views concerning dual citizenship was that "…the Committee could not dismiss the question of allegiance which is indeed at the root of citizenship". Atuguba JSC concluded his judgement by saying that "I would therefore hold that the impugned provisions are intended to protect the interest of Ghana as far as crucial loyalty to Ghana is concerned".

Considering the above, Amegatcher concluded:

We have taken the trouble to set out these words to show that as far back as 2012, this court was very clear that citizenship was bound up with loyalty to the State and allegiance to it . There is, therefore, no ambiguity when article 94(2) (a) refers to 'owing allegiance to a country other than Ghana'. In Asare v Attorney General, this court assumed the words to mean being a citizen of a country other than Ghana. Citizenship and allegiance are bound up in the same spirit.

Further, he noted that the holding that citizenship and allegiance are bound together is further evidenced by the fact that in section 8 of Act 591 , it is provided that "A person shall not be registered as a citizen unless that person has taken the oath of allegiance." Consequently, being a citizen means owing allegiance to the country of which one is a citizen. Further, section 13 of Act 591 also ties citizenship to allegiance, as it provides that natural persons must take the oath of allegiance, after which they become citizens. In light of the above interpretation, his lordship added:

We state without any equivocation that article 94 (2) (a) means that to be qualified to be a member of parliament, a citizen of Ghana must not hold any other citizenship at the time when nominations are opened by the Electoral Commission for registration of candidates for election as Members of Parliament.

In response to the first defendant’s contention that he had renounced his Canadian citizenship and therefore did not owe allegiance to Canada, their lordships believed that

Since citizenship is a matter of law and is determined by the law and the regulatory mechanisms of States, it is not a valid legal submission that a unilateral statement of renunciation of citizenship of another country should be recognized as severance of allegiance from that country . If that were plausible, persons who have complied with stringent conditions and borne considerable costs to become citizens of Ghana or another country could simply throw affidavits or Declarations at the State and deem themselves divested of citizenship if they find a reason to quickly remove the burden of that citizenship from themselves because of changed needs. There would be no need for the Certificate of Renunciation issued by the Canadian authorities to take effect from 26th November 2020.

In the same way that the obtaining of alternate citizenship is done through due process and by legal means, we are satisfied that without a legal record granted by the State that conferred the alternate citizenship, persons who present themselves as having renounced their alternate citizenship cannot be accepted as having done so, unless they show an official record stating so from the alternate State.

Thus, the fact that the first defendant had not received his renunciation certification at the time the eligibility requirements in article 94 became operative, which is "…at the time when nominations are opened by the Electoral Commission for registration of candidates for election as Members of Parliament" meant that his renunciation was not effective and he still owed allegiance to Canada. Consequently, he was not qualified to be a member of parliament at the time that he filed his nomination papers, at the time he stood for elections, or at the time he was declared an elected Member of Parliament.

Among others, the court ordered Parliament to expunge the name of the first defendant as the Member of Parliament for the Assin North Constituency.