Justice must be done in Assin North even if the Heavens Fall

The judge in Ankomah-Nimfah v Quayson (Suit No. CRP/E/3/21) case faced a remarkably straightforward question — Is the duly elected member of parliament (MP) of Assin-North disqualified from being an MP because he owes allegiance to a country other than Ghana? Remarkably, the judge provided a most non-responsive answer — Yes, because at the time of filing his parliamentary nomination forms, he held Canadian citizenship. On the strength of that answer, the judge proceeded to cancel the elections and further ordered the Electoral Commission to conduct fresh Parliamentary Elections in the Assin North constituency.

There are, at least, 4 errors in the judgment: (1) the judge engaged in streetlight jurisprudence; (2) the judge granted summary judgment, even though there were disputed material facts; (3) the judge failed to refer article 94(2)(a) to the Supreme Court for interpretation as required by article 130(2); and (4) the judge cancelled the election results contrary to PNDCL 284 (20)(d). Each of these errors, which are discussed below, are separate grounds for reversing that judgment.

The Judge erred when he engaged in Streetlight Jurisprudence

I define streetlight jurisprudence as the propensity for a judge to search for evidence where it is easiest to find rather than search for evidence that is germane to the issue confronting the court. It is akin to the well-known drunkard search principle, where a drunkard searches for his lost money in a lighted place rather than where he lost it. Here, the judge, rather than search for evidence of the MP’s disavowal of his allegiance to Canada, sought evidence of the date on which his application for renunciation of citizenship was granted because the latter is easier to inspect, even though it does not come anywhere close to answering the question of owing allegiance to Canada.

Article 94(2)(a) provides that “a person shall not be qualified to be a member of Parliament if he owes allegiance to a country other Ghana.” Article 94(2)(a), properly interpreted, has nothing to do with citizenship-related allegiance because at the time of the promulgation of the Constitution, one could not retain his Ghanaian citizenship if he was a citizen of another country (i.e., dual citizenship was not permitted). Article 94(2)(a) could not be saying that while dual citizenship is not a permissible status, a person who is a dual citizen is not qualified to be an MP. Moreover, amending the Constitution in 1996 to allow for dual citizenship did not and could not have amended article 94(2)(a) or somehow changed its meaning and scope. Constitutional interpretation does not work that way. I have provided a full explanation of why article 94(2)(a) is unrelated to citizenship in a companion article (see https://www.graphic.com.gh/features/features/it-is-time-to-end-the-politico-judicial-persecution-of-dual-citizens.html).

But let us ignore that important point for now and proceed as if article 94(2)(a) is referring to allegiance-related citizenship. It is obvious, even under this clearly contrived regime, that the article does not say “a person shall not be qualified to be a member of Parliament if he is a citizen of a country other Ghana.” It still says a person is not qualified to be an MP if he owes allegiance to a country other than Ghana, except now we depart from the Constitution and allow allegiance to be related to citizenship.

Therefore, citizenship of another country is not dispositive of allegiance as used in article 94(2)(a) or citizenship-related allegiance. The proper inquiry under this contrived meaning of article 94(2)(a) is whether allegiance is owed and, if so, if it had been effectively disavowed. The test, even in this contrived regime, should be disavowal of allegiance, not renunciation of citizenship.

In the Canadian case of McAteer v Canada, 2014 ONCA 578, the oath of allegiance is characterized as “a symbolic commitment to be governed as a democratic constitutional monarchy unless and until democratically changed,” that a naturalized citizen can publicly disavow at any time without affecting his citizenship status. In fact, some Canadian citizens have set up websites where they proudly proclaim such disavowals (e.g., http://disavowal.ca).

In so holding, the McAteer court was merely stating the obvious that allegiance is severable from citizenship as was stated in Bilson v Rawlings and Another [1993-94] 2 GLR 413-428, where the defendant affirmed, under oath, that he was born a British subject in 1949 and became a Ghanaian in May 1957, an affirmation that was of no consequence to his qualification to run for office because Justice Esslifie-Bondzie properly focused on his allegiance, which he had repeatedly sworn to Ghana, not citizenships.

Thus, assuming the reference to allegiance in article 94(2)(a) had anything to do with citizenship, which it did not, holding Canadian citizenship is not dispositive of the question of owing allegiance. Furthermore, while article 94(2)(a) conditions the disqualification on being an MP, the judge rewrote it to condition it on being a parliamentary candidate. Article 94(2)(a) says absolutely nothing about the time of filing for nomination and the judge again engaged in streetlight jurisprudence by searching for evidence on that date.

A Canadian Judge reading Ankomah-Nimfah would be bemused by the equation of citizenship with allegiance and will undoubtedly conclude that the Ghanaian judge does not understand Canadian law on allegiance and citizenship. He will be utterly baffled that a Ghanaian judge will interpret the Canadian oath of allegiance to impose a burden on a natural born Ghanaian that can be lifted only by a Canadian official’s approval of his application for renunciation of Canadian citizenship. He will wonder why our conception of citizenship and allegiance remains rooted in feudal concepts while most of the rest of the world have embraced the modern conception of citizenship as a legal status that bestows equal political rights and duties on its members.

The Judge erred when he granted Summary Judgment

The judge mischaracterized “owing allegiance to a country other than Ghana” as a question of law, which allowed him to preempt a trial on the facts and to decide the issue as a matter of law. Whether one owes allegiance to any country is a question of fact to be determined by a trier of fact. Among others, facts could show that he had disavowed any allegiance to Canada, pursuant to McAteer. Further, facts could have shown that he reasonably and honestly believed that he did not owe allegiance to Canada, after turning in his passport, certificate of naturalization, and all rights and privileges appertaining to his citizenship. The parties could have brought in expert witnesses to clarify what it means to owe allegiance to Canada, if there is such a thing, etc. There were many disputed unresolved factual issues and summary judgment was inapposite.

This error was compounded by the judge’s failure to do any research on, or refer to, Canada law on allegiance. Rather, the summary judgment relied primarily on the date on the MP’s certificate of citizenship renunciation, the processes filed, and Wikipedia to infer that the MP owes allegiance to Canada. By granting summary judgment, the judge denied the MP a fair trial in two distinct ways: (1) the court impermissibly discharged the plaintiff of his burden to prove his factual claims that the MP owed allegiance to Canada; and (2) the court impermissibly denied the MP the opportunity to show that he did not owe allegiance to Canada, assuming that the plaintiff was able to meet his burden of persuasion.

Remarkably, the Supreme Court, in granting the injunction to the plaintiff in the subsequently filed writ for interpretation, recited that the high court judge “gave judgment after a trial” (see page 3 of the Supreme Court interim injunctive relief in Ankomah-Nimfah v Quayson et al. Writ No. J1/11/2022, 13/4/2022). Trials resolve disputed factual issues, but the high court judge gave judgment as a matter of law. This is not an insignificant error. It suggests that the injunction was based on a misunderstanding of what happened at the high court. In most appellate courts, the standards of review for a trial or summary judgment, hence the deference to attach to a lower court judgment, differ. Trials, typically, are reviewed for abuse of discretion while summary judgments are reviewed de novo both as to the determination that there is no remaining genuine issue of material fact and that the prevailing party was entitled to judgment as a matter of law. In my opinion, that error by the apex court is enough to arrest its injunction.

The Judge erred in failing to refer article 94(2)(a) to the Supreme Court for interpretation

Article 130(2) mandates that lower courts stay proceedings and refer matters of interpretation of the Constitution to the Supreme Court. In determining whether an issue of interpretation has arisen, lower courts apply the Ex Parte Akosah test and evaluate whether any of the following events are present:
• the words of the provision of the Constitution are imprecise or unclear or ambiguous.
• rival meanings have been placed by the litigants on the words of any provisions of the Constitution.
• there is a conflict in the meaning and effect of two or more articles of the Constitution, and the question is raised as to which provision should prevail.
• on the face of the provisions, there is a conflict between the operation of institutions set up under the Constitution and thereby raising problems of enforcement and of interpretation.

It is obvious that an interpretation issue had arisen under the first and second wings of Ex Parte Akosah. Owing allegiance to a country other than Ghana is inherently imprecise, unclear, and ambiguous. The parties had invited the court to declare that it meant something different from what it plainly says, including the insertion of terms (citizenship) and dates (filing of nomination forms). Further, the parties had put rival meanings on the term allegiance, with plaintiff suggesting it was the same as citizenship and the defendant suggesting otherwise.

Under those circumstances, the judge was obliged under article 130(2) to stay proceedings and to refer the matter to the Court, thereby foreclosing the current tenuous situation where the prevailing party, who objected to the referral of the matter to the Court, has now invited the Court for the interpretation.

The Judge explained that he did not have to refer the matter to the Court for interpretation because “the meaning and effect of the article are clear, precise, and unambiguous and the court is simply applying the article (page 55). Furthermore, the judge noted that “article 94(2) has received judicial consideration and clarity by the SC in Ex Parte Zanetor,” and that case “is the recent and authoritative decision by the SC on what point in time the eligibility or qualification criteria as set out in article 94(2)(a) of the constitution come into play” (page 56).

The judge is fatally wrong on Ex Parte Zanetor. That case has no voice on article 94(2)(a) and it is plain error for the judge to say otherwise. That case is related to article 94(1)(a), an eligibility article, not 94(2)(a), a disqualification article. Moreover, allegiance, unlike “registered voter” is an imprecise term that cannot be inferred from Ex Parte Zanetor. Neither does Ex Parte Zanetor control the timing of the determination of allegiance to a country other than Ghana.

The wording of articles 94(1) and 94(2) differs for the important reason that the former defines the eligibility for parliament whereas the latter disqualifies an eligible person from being an MP. Article 94(1)(a) provides that “a person shall not be qualified to be a member of Parliament unless he is a citizen of Ghana, has attained the age of twenty-one years and is a registered voter” and article 94(2)(a) provides that “a person shall not be qualified to be a member of Parliament if he owes allegiance to a country other than Ghana”.

Even a duly elected and serving MP can be disqualified if he is found culpable of performing the prohibited act specified in article 94(2)(a). Unsurprisingly, the election laws treat article 94(1) and 94(2) differently. PNDCL 284 (9)(1)(a) 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.” However, PNDCL 284 (9)(2)(a) 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 differences in PNDCL 284 9(1)(a) and PNDCL 284 9(2)(a) are not an accident. There is a very clear legislative intent for articles 94(1)(a) and 94(2)(a) to be treated differently. The eligibility criteria in 94(1)(a) must be established to be a candidate for an election. The disqualification criterion in 94(2)(a) disqualifies a person from being an MP, whether he has just been elected or is an incumbent. An MP can be disqualified at any time from serving in parliament if it is established by proper proof that he has engaged in the offending act.

Curiously, after resisting the MPs repeated calls for article 94(2)(a) to be transmitted from the high court to the Supreme Court for interpretation, the plaintiff issued a writ at that Court seeking an interpretation of that very same article and an application for an interim injunction anchored on that writ. Rather than question the procedural posture of the writ and arrest the high court judgment as premature, in the absence of a definitive interpretation, the Court granted the injunction. I do believe that the Court allowed the plaintiff to do the 4-step “rashikoko” dance.

• First, successfully resist all attempts to get the Supreme Court to interpret article 94(2)(a).
• Next, get the high court to say that the article has been violated.
• Then, majestically go to the Supreme Court to seek an interpretation of the violated article.
• Lastly, get the Supreme Court to “kotokiokously” injunct on your behalf

The Judge Erred when he cancelled the results

PNDCL 284 (20)(1)(d) governs the cancellation of election results. It provides that “the election of a candidate shall be declared void on an election petition if the High Court is satisfied that the candidate was at the time of his election a person not qualified or a person disqualified for election.” The law embodies the idea that any harm associated with a disqualifying event (e.g., owing allegiance to a country than Ghana) is not going to occur through filing of papers or during campaigning. Further, voters’ wishes must be respected, and their decisions must be honoured if a person is qualified at the time of his election.

Applying PNDCL 284 (20)(1)(d) to the facts, the only question the high court judge should have asked is whether on December 7, 2020, at the time of his election, had he disavowed his allegiance to Canada (the correct test in the contrived regime where the allegiance in article 94(2)(a) is related to citizenship) or renounced his citizenship using either a subjective test (correct test, in the contrived world where citizenship is equated to allegiance) or objective test (wrong test, in the contrived test where citizenship is equated to allegiance)? Any of those contrived tests would have resolved the matter that he was qualified at the time of his election. He applied for renunciation of his citizenship in December 2019, a whole year ahead of the election date. At that time, he did all in his power and control to sever all relationships with Canada and relocated to Assin-North. He turned in his naturalization certificate, passport and was no longer eligible to even reside in Canada. His application for renunciation was granted on November 26, 2020. Both of those dates are before the election.

The Judge Abused his Discretion when he granted the interim injunction on January 6, 2021

While a judge has discretion to grant injunction, the presumptions and precedents show that he abused his discretion when he granted the interlocutory injunction on 6th January 2021, one week after the election petition was filed. Prior to the elections, the Electoral Commission had examined a petition seeking to disqualify the MP on the same citizenship grounds. The Commission, after examining the evidence, cleared the MP as qualified to contest in the elections. The judge should have treated this determination by the election manager with deference. It is difficult to imagine the harm that would have occurred by denying the injunction, while allowing the parties time to build their cases. In contrast, the hasty and unwise grant of this interim injunction, was it properly served, would have denied Assin-North a say in the election of the Speaker and was the proximate cause of the fisticuffs that occurred in parliament on 6th January. The precedents in various election petitions all pointed to the same outcome of not granting the injunction because of the presumption that elections are regular, and winners have been validly declared.

Similarly, it is hard to understand the interlocutory injunction granted by the Supreme Court, which is anchored on a writ seeking an interpretation of an article of the Constitution that has been applied by a lower court to issue a judgment, which the Court relies on for its injunctive order. This is especially so when the Plaintiff and the courts below had consistently resisted a referral of the matter to the Court for interpretation. Further, it is hard to reconcile the plaintiff’s invocation of the Court’s interpretive jurisdiction, the lower court’s unequivocal ruling that article 94(2)(a) was clear, unambiguous, and precise, and the Court’s reliance on the lower court judgment. The plaintiff appears to be questioning the high court’s claims about the clarity of article 94(2)(a) by invoking the Court’s interpretive jurisdiction. On the other hand, the Court is relying on a judgment that declares that article 94(2)(a) is clear and precise, even as it is about to interpret the same article.

It seems the only and proper thing to do under these circumstances is for the Court to have arrested the judgment from the lower court and to stay all proceedings rather than to issue an injunction. A cursory review of the case’s procedural posture shows that the plaintiff effectively turned the Court into an enforcement wing of the lower court.

In granting the injunction, the Supreme Court stated that “greater hardship, irreparable damage, and inconvenience will be occasioned to the Constitution, the rule of law, the tenets of democracy, the constituents of Assin North, and the Ghanaian people as a whole if the MP is allowed to continue to hold himself out as a MP pending the determination of this suit.” It is hard to envision how a few days of service of the MP in parliament, while the Court deals with the substantive matter, can occasion these hardships and harm. Rather, the irreparable harm seems to be occasioned by an injunctive order that is based on a subsisting summary judgment, that the Court misconstrued as a judgment after a trial, and a writ for the interpretation of article 94(2)(a), when that same article is at the heart of the controversial summary judgment. Further, the injunction order comes after repeated rejection of invitations from the MP to the high court, court of appeal and the Supreme Court to interpret the same article, which the plaintiff has, in one attempt, succeeded in getting the Supreme Court to interpret. When evaluated in its totality, the flowery justification of the injunctive order reads more like dressing up a flawed order as legal reasoning without doing any legal reasoning at all.

The judicial abuse of injunctions in election petitions can have disastrous consequences and our judges and Justices must pay more attention to the precedents and presumptions.

The Judge will allow Foreign Law to Irremediably Curtail Citizens’ Political Rights

The judge recited that “some countries may not allow or do not recognize renunciation of citizenship or establish administrative procedures that are essentially impossible to complete, such as Argentina (page 44).” Notwithstanding this recital, the judge surprisingly holds that it is only a foreign country that can decide whether a natural born Ghanaian’s reasonable and honest effort to renounce his foreign citizenship is effective. In effect, the judge is saying that Ghanaian law will allow countries like Argentina, which do not recognize renunciation or make it difficult to do so, to control the political status of a natural-born Ghanaians in Ghana, even if he has severed all relations with that country and relocated to Ghana. This, in effect, reduces Ghanaian judges to mechanical inspectors of foreign certificates of renunciation, with no interest in or desire to understand the steps taken by the natural born Ghanaian to sever connections with the foreign country. It is almost as if the court’s jurisprudence does not value natural-born citizens and is determined to allow foreign law to control who participates in Ghana’s representative government. The irony, of course, being that a person who is a dual citizen might allow foreign interests to dominate or otherwise their judgments while serving in the legislature and related public institutions.

The Constitution is animated by the values of equal citizenship, especially the right of full participation in the political space. The preamble of the Constitution highlights the principles that “all powers of Government spring from the sovereign will of the people” and “universal audit suffrage”. Further, the common law, related to the Constitution, have highlighted the importance of voting and the right to be voted for. The right to self-governance through public participation is so vital that citizens have both a right and a duty to vote and to participate in the political space.

These values suggest that a natural born Ghanaian should not be prevented from participating in the democratic governance ordained by the Constitution where he has demonstrated that he has taken all steps reasonably required by foreign law to disavow his allegiance to that foreign country.

One would have hoped that amidst the plethora of errors, the judge, could have, at least, reasoned those countries like Argentina, who made renunciation impossible or difficult to achieve, should not be put in a position to prevent a natural born Ghanaian, who has taken all the steps that are reasonably required to renounce his foreign citizenship, from participating fully in the politics of Ghana. Such reasoning would have evidenced an interest in balancing the citizen’s political rights against whatever rights the foreign country has in putting administrative impediments in the way of a natural born Ghanaian who seeks to renounce his foreign citizenship.

Justice must be done in Assin North though the heavens fall.

SALL is the cardinal sin of the 8th Parliament.

Da Yie!