Michael Ankomah Nimfah v. James Gyakye Quayson, The Electoral Commission, Attorney General  DLSC15163
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).
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.
Arguments and Case of the Plaintiff:
Arguments and Case of the First Defendant (James Quayson):
Arguments of the Third Defendant (Attorney General)
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  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.