Article: Can Gyekye-Quayson Lawfully Run As An MP In The Assin-North Bye-election? – Prof. Kwaku Azar Writes

Dear DUCRIPS:

Can Gyekye-Quayson lawfully run as an MP in the Assin-North bye-election?

Sincerely yours,

Kwame Anokwa.

Dear Kwame:

The relevant question is if he is disqualified under any law in the country?

In my opinion, no reasonable reading of the laws will lead to that conclusion. He is eligible to run because he is a natural born citizen of Ghana who meets the age, residence, and voter registration criteria.

He is not disqualified because he is not a bankrupt, he is not a lunatic, he is not a felon, and he owes no allegiance to a country other than Ghana, properly interpreted and even improperly interpreted.

Properly interpreted, allegiance to a country other than Ghana, as used in article 94(2)(a), has nothing to do with citizenship.

The framers of the Constitution could not have been addressing dual citizens, when they outlawed dual citizenship. As the legislative history clearly shows, they were referring to occupation-related allegiance to other countries, such as serving in foreign militaries, working as spies for other countries, or traitors.

Improperly interpreted as a citizenship-encumbrance, Canada law, not Ghana law, determines who owes allegiance to it, as the judge in the Jomoro case recognized. In Canada, citizenship-related allegiance is subjective and can be renounced at will. It is not presumed merely by the possession of citizenship (see, e.g., http://disavowal.ca/ ).

Quite apart from that constitutional overview, I also do not think any reasonable and diligent reading of our statutory laws should have led to his disqualification.

Section 9(1) off PNDCL 284 provides that “a person shall not be qualified to be a candidate for the office of member of Parliament unless he is a citizen of Ghana, has attained the age of twenty-one years and is a registered voter”, but section 9(2) provides that “A person shall not be qualified to be a member of Parliament if he owes allegiance to a country other than Ghana.”

PNDCL 284 clearly distinguishes between eligibility and disqualification and provides different timelines for their determinations. Eligibility, as in Zanetor, is determined at the time of filing for nomination but disqualification is evaluated at the time of being sworn in. That is the essence of 9(1) stating “a candidate for the office of MP” and 9(2) stating “to be a MP.”

So the EC broke no law when it certified that Quayson was qualified to run, on inspecting his renunciation certificate prior to the election (assuming citizenship is the same as allegiance as used in article 94(2)(a), which it is not; and assuming he owed allegiance to Canada, which was never established but merely presumed). Allegiance, as used in article 94(2)(a) can’t be presumed from citizenship.

Allegiance to a country other than Ghana, whatever it means, does not disqualify candidates for the office of MP because it is not an eligibility criteria. Rather, it disqualifies from being sworn in as MP.

This is the whole purpose of having article 94(1) on eligibility and article 94(2) on disqualification. It also is the whole point of the statutory distinction implied by section 9(1) and 9(2).

To me, the new timeline set by the SC, which appears to confirm that set by the HC, dispenses with the existing timeline as enunciated by PNDCL 284. It also fails to distinguish between eligibility and disqualification and fails to appreciate while they require different timelines.

Not only does the SC set aside the carefully constructed timelines, but it also retrospectively and unjustifiably applied its new disqualification timeline to overrule the EC and to disqualify Quayson. In so doing, the Court abandoned its long held position that actions taken by the EC are presumed to be regular. It also overruled the voice of the voters.

No matter how you slice it then, Quayson is a victim of gross injustice.

He is, however, not the only victim of injustice. All dual citizens are also a victim of any reading of the Constitution that treats them as second class citizens.

Second class citizens because by this infamous reading, they are now disqualified from serving on the legislature, executive, Supreme Court, Constitutional Bodies (e.g., EC, Lands Commission, NCCE etc), even from being founders, leaders, and executive members of the Political Parties.

They suffer these crippling disabilities not because they have violated any law but because the SC has decided that it is going to ignore the glaring distinction between article 94(2)(a) and 8(2).

But the SC has the final word on these matters. Such finality should not be confused with infallibility.

The US SC once ruled that negroes were not citizens. It too was supposedly applying a law. It took a civil war to fix that mess. A war that could be avoided by a broad and progressive reading of their laws. Today, those judges who authored that opinion belong to the judicial hall of shame!

Litigation can’t go on forever. That is why we give the SC the final word. So we must move on as a nation but resolve to build a progressive and inclusive society that does not exclude over 3 million citizens from holding over 30 public offices, including sitting on the Supreme Court.

Parenthetically, the panel that decided that per incuriam Assin-North decision is chaired by a judge who sits on the SC of Gambia. He finds nothing wrong with being a non-Gambian who sits on the Gambia SC and the Ghana SC but thinks a law that says a natural born Ghanaian cannot be his colleague on the SC is constitutional.

We agree with the presiding Justice’s implicit justification for sitting on the Gambia SC to the effect that qualifications to sit on the SC should be based on skills, knowledge, education, experience, training, integrity; not on some speculations about loyalty or other metaphysical attributes.

Alas, we wished he applied the same standard when he was evaluating article 94(2)(a) and not held others to a standard, which he doesn’t apply to himself, or to so badly misconstrue the article.

Unknown to most people, the absurd Supreme Court ruling disqualifies dual citizens from even being executive members of political parties. Therefore, any dual citizen holding an executive office in the overseas branches is in violation of the law.

When you cheer the Quayson decision, and champion his prosecution, you are also championing the prosecution of these party officers and asking them to vacate their positions in the political parties.

We must emulate our neighbours in Nigeria and Sierra Leone whose progressive courts have taken a broad view of citizenship and have frowned upon excluding dual citizens from belonging in their legislature.

As Justice Thompson from Sierra Leone puts it, how can the same law that allows dual citizenship strip dual citizens of the basic right of citizenship?

For the avoidance of doubt, that basic right is the right to participate fully in the political community as recognized by Aristotle many centuries ago and as ensconced in the Africa Charter on Human Rights.

The “other citizenship” exclusion of Outtara in Ivory Coast triggered their first civil war, as it did in Rwanda, USA and other places.

The bipartisan train to repeal the misinterpreted and misapplied article 94(2)(a) is in full gear.

The President supports the bill. Ex-President Mahama supports the bill. The Council of State supports the bill.

All truly liberal-minded and progressive people should be supporting the bill, not championing the cause to imprison a citizen whose only offense is to be cleared by the EC to run for an election and to be voted for by his constituents.

I distance myself from such cruelty!

Those who are truly disgusted by the shabby treatment of Adamu Sakande, as I am, should lead the fight to repeal the misinterpreted archaic law, not opportunistically misappropriate his name to pursue their narrow political agenda.

We celebrate the year of return by conferring citizenship on foreigners. Do we do so to divide their loyalties, thereby fatally contaminating their other citizenships such that they are ineligible for public office in these countries?

I will be remiss if I did not end on the historical note that our first prime minister was a citizen of UK, Ghana, Commonwealth, and also Guinea. Dual citizenship is our heritage. Let’s celebrate it.

While on history, your question about Quayson’s qualification also reminds me of the first prime minister running and winning a parliamentary seat from prison. Yet, here we are, several decades after independence, debating whether the mere charging of a person should disqualify him from running for office!!!!!

A natural born Ghanaian’s loyalty should be presumed not questioned! In any event, merely raising hypothetical questions about someone’s loyalty, without more, should never be a basis for punishment in a civilized polity.

The best path to loyalty is to let Ghanafuo enjoy equal rights! All for Ghana. Ghana for all.

#SALL is the cardinal sin of the 8th Parliament.

Da Yie!