Dual Citizenship – Part 3 – Nigeria Points the Way to a Solution for Ghana

Kofi A. Boateng

New York October 7, 2008

We have pointed out the implicit concepts of Citizen by Birth and by Registration in Ghana’s 1992 Constitution and the Ghana Citizenship Act 2000 in previous parts of this series. We have taken the trouble to highlight the two categories of citizenship in order to arrive at three conclusions:

1. That Article 94 (2) ( a) stating that: “A person shall not be qualified to be a Member of Parliament if he owes allegiance to a country other than Ghana” does not apply to children of the soil- citizens by birth – lawyers use the term “jus soli.”

2. That the thirteen plus disqualifications from various positions in Ghana enumerated in Article 16 (2) of the Citizenship Act 2000 are unconstitutional if made applicable to Ghana’s citizens by birth. 3. That Article 9 (5) of the 1992 Constitution stating that: “Parliament may make provision for the renunciation by any person of his citizenship of Ghana” comes to life in The Citizenship Regulations 2001 that provides a Form 13 – Declaration of Renunciation of Citizenship of Ghana. As such until one completes this Form 13 and properly files it with the Minister of Interior or his/her designee, it cannot be assumed that the mere acquisition of a secondary nationality presumes a renunciation of Ghana citizenship.

Yes, I know that you are wondering how Kofi A. Boateng who is not a lawyer arrive at these conclusions. Read on. Let us start with Ghana’s Supreme Court. In November 2003, Justice George Kingsley Acquah, then Chief Justice of Ghana, speaking on the topic, "Who is a Ghanaian? The Citizenship Perspective” at the 44th Founder's Week celebrations of the Ghana Academy of Arts and Science in Accra called for an amendment of the Dual Citizenship laws of Ghana. Listen to him, not me:

“There should be an amendment to the Ghana’s Dual Citizenship Act to protect the rights of Ghanaian citizens. Where the citizenship laws of that country require a renunciation of existing citizenship, the dual citizenship act becomes ineffective. Ghana should look to an adoption of Nigeria’s Dual Citizenship Act which ensures that the birth right citizenship of either a Nigerian or non-Nigerian is not lost on the acquisition of a foreign or Nigerian citizenship. Such a highly commendable provision is worthy of emulation by all nations including Ghana in particular."

Chapter three of Nigeria’s 1999 Constitution identifies four separate categories of Nigerian citizenship. The categories are: (25) Citizenship by birth; (26) Citizenship by registration; (27) Citizenship by naturalization; and (28) Dual citizenship. Chapter 3 of Ghana’s 1992 Constitution – Citizenship- uses the words birth and registration but these are not categorized and no special differentiation is made. This is the beginning of the problem in Ghana. Let us look at the relevant provisions in the Nigeria Constitution that appealed to the late Chief Justice Acquah and that shows a way to a solution for Ghana.

A. Citizenship by Birth - comparing Nigeria’s and Ghana’s Nigeria - Article 25 “The following persons are citizens of Nigeria by birth- namely- (a) every person born in Nigeria before the date of independence (October 1, 1960), either of whose parents or any of whose grandparents belonged to a community indigenous to Nigeria; (b) every person born in Nigeria after the date of independence either of whose parents or any of whose grandparents is a citizen of Nigeria; and (c) every person born outside Nigeria either of whose parents is a citizen of Nigeria”

Compare the clarity and specificity in the Nigerian Constitution in defining citizenship by birth to Ghana’s.

Ghana - Article 6

“(1) every person who, on the coming into force of this Constitution, is a citizen of Ghana by the 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 citizen of Ghana.

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

(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, by virtue of the adoption, be a citizen of Ghana”

It is a sad comment that the only category that specifically is entitled to be a citizen of Ghana by birth is the wandering child of not more than seven years old in item (3). Surely Ghana’s Constitution’s treatment of its citizenship is shouting for an amendment. Citizens by birth in both Nigeria and Ghana do not swear an oath of allegiance to become citizens. This is a very significant right to the children of the soil. No one has any superior authority to deny another of his or her citizenship by birth. Ghana’s constitution in Article 8 (2) requires the renunciation of another country’s citizenship in order to be fully registered as a citizen of Ghana. Nigeria’s Article 28 (2) requires the renunciation of another country’s citizenship only for those who become citizens by registration and naturalization and only if they are not citizens by birth of that original country. This is crucially important. In other words, the children and grandchildren of Nigerians born in countries that by virtue of their birth also make them citizens by birth in those countries (USA as an example) do not have to ever renounce their second country citizenship. They are permanent dual citizens without any fuss or infringements of rights. This is what Justice Acquah found refreshingly inclusive and fair in Nigeria’s dual citizenship laws.

B. Dual Citizenship – comparing Nigeria and Ghana By making the distinctions among the various categories of Nigerian citizenship, a consistency is maintained in dealing with issues like dual citizenship and qualifications to be a member of the legislative bodies and even President and Vice President of Nigeria without the incoherent confusions that bedevil Ghana.

Article 28 (1) - Nigeria –“Subject to the provisions of this section, a person shall forfeit forthwith his Nigerian citizenship if, not being a citizen of Nigeria by birth, he acquires or retains the citizenship or nationality of a country, other than Nigeria, of which he is not a citizen by birth.” (underline mine)

(2) “Any registration of a person as a citizen of Nigeria or the grant of a certificate of naturalization to a person who is a citizen of a country other than Nigeria at the time of such registration or grant shall, if he is not a citizen by birth of that other country, be conditional upon effective renunciation of the citizenship or nationality of that other country within a period of not more than five months from the date of such registration or grant.” (Underline mine)

By excluding those citizens by birth from the loss of citizenship via the taking of another country’s citizenship, Nigeria ensures that once a Nigerian by birth (jus soli) always a Nigerian by birth. The issue of curtailment of the rights of one group versus another does not arise. This after all is the virtue of the painstaking categorization of a country’s citizenship. A noble consistency of the Nigerian dual citizenship facility is that in Article 28 (2) citizens by birth of other countries are not required to renounce the citizenship of the countries of their birth.

This simple position is carried through to the all-important issue of who can be a member of the Legislature /Presidency. In the Nigerian Constitution, Article 28 (1) is always referred to as a point of departure.

Article 66 (1) of the Nigerian Constitution states: “No person shall be qualified for election to the Senate or House of Representatives if:

(a) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria, or except in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such a country” (underline mine)

The points to highlight are:

1. The qualification is clearly linked to ELECTION versus a similar provision in Ghana that is linked to MEMBERSHIP of Parliament yet is interpreted to operate as if for election- wrong.

2. If you are a Nigerian citizen by birth as per Article 28 (1), you can be a citizen by registration and naturalization of another country. You (the Nigerian citizen by birth) do not have to renounce neither your Nigerian nor your other country’s citizenship in order to be a member of the Legislature or even President of Nigeria. Ghana’s is often construed as requiring prospective members of parliament, ministers, security heads, Vice President and President who are Ghana citizens by birth to renounce their other citizenship as a precondition or be forever barred.

3. The expression “other than…” that is found in both Ghana and Nigeria’s prohibition for membership or election to the legislature and executive branches of government is more clearly seen in the case of Nigeria, as referring to citizens by registration and naturalization who may not have completed their Nigerian citizenship process within the five-month application period. During this time, such prospective Nigerian citizens by registration or naturalization certainly owe allegiance to countries other than Nigeria. We stress that Ghana’s should not be left to interpretation but more clearly stated as Nigeria’s. The benefits are obvious. It will free up the huge pool of Ghanaian talent living abroad to be more openly active in their countries and propel its development. Those who seek and occupy political offices will not be afraid of being uncovered. Unnecessary legal/political maneuverings will be halted and we shall all- Ghanaians living abroad and inside, be about the business of building up the one country and one soil that we commonly call home. Isn’t it sad that the country that prides itself of being the beacon and black star of Africa makes unintended criminals of its citizens because of poorly constructed laws? Oh how I wished the late Chief Justice had been listened to in 2003. But it is not late. An amendment needs to be made as the first order of business for parliament in 2009.

4. The irony of Ghana’s Citizenship Act 2000 that was motivated by former President Rawlings’ desire to extend dual citizenship to African-Americans does not achieve that objective. This is because the Act left unresolved the 1992 Constitution’s requirement of all those granted citizenship of Ghana by registration to also renounce their original citizenship as a condition. This is an issue bemoaned by the late Chief Justice. When care is not taken to consistently set aside citizens by birth you end up with something that hurts all and makes no sense. Note that Ghanaians who become US citizens by naturalization are not asked to renounce their Ghana citizenship as a condition. The US passports they obtain recognize and state that their place of birth as Ghana. Citizenship Act 2000 is an incomplete and confusing document with blame to go around to both regimes that have ruled Ghana since 1992. It is time therefore for a non-partisan and expeditious amendment.

PS: You are invited to join a non-partisan virtual Ad Hoc group – Ghana Citizenship Advocacy Group. G-CAG seeks to pursue the matter of seeking an amendment of Ghana’s citizenship laws. Please contact Kboateng@aaionline.org or gdjaba@yahoo.com It takes organization and money to effect change. Please make your check payable and send your tax deductible contributions to African Federation Inc., P.O. Box 2186, Grand Central, New York, NY 10163.