[Opinion] Kwaku Azar writes on Dual Citizenship

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.”

I have in the past explained why it has nothing to do with dual citizenship. Very simply, the Constitution, until it was amended in 1996, did not allow dual citizenship so it could not have been addressing Article 94(2)(a) to a null set.

Unfortunately, this subtle point is under-appreciated, sometimes to disastrous consequences, such as happened to my brother Adamu Sakande (May he Rest In Peace).

The Supreme Court has not had the opportunity to interpret Article 94(2)(a) and Justice Duose did not and could not do so in the Adamu case.

However, for the purpose of this post only, let us assume the “street” interpretation of the law to equate allegiance and citizenship is apposite. For the avoidance of doubt, I think the street interpretation is opportunistic and wrong so treat this assumption with all the contempt that it deserves, save for the current exercise.

Note from Article 94 that we are talking about allegiance. It is the “loyalty” or “commitment” that one feels to another country. It is therefore entirely in the control of the person in Article 94, not the foreign official of the country that one supposedly owes allegiance to.

This becomes important when super Ghanafuo decide to disqualify other Ghanafuo who want to serve and have taken the needless step of renouncing their citizenship of the other foreign country.

When does the renunciation of “allegiance” become effective? Is it when one applies to renounce citizenship or is it when the foreign bureaucracy processes the application and issues the certificate of citizenship renunciation?

Notice that the question itself has an embedded trick. There is nothing like renunciation of allegiance. It is a subjective, and highly nebulous, concept and there could not be a rational system for its renunciation. There is something like renunciation of citizenship. So one has to work harder to successfully answer the question.

In my mind, since allegiance is subjective and at the control of the applicant, it becomes effective once he applies for the renunciation of citizenship. At the time, he has manifested a clear intention to renounce any allegiance owed to the foreign polity.

The timing of the decision of renunciation of the citizenship by the foreign official does not matter in determining when allegiance is terminated, under our assumption that the allegiance was ever “owed”. Nor does the decision (approved or denied) matter to the question of allegiance, as distinct from the question of the underlying citizenship.

Put simply, if I apply to renounce my citizenship, therefore allegiance per our assumption, on 1/1/2021 then that is the proper date for the renunciation of the allegiance, not 1/1/2025 or whatever date the foreign official processes my application and issues me a certificate of renunciation of citizenship.

My allegiance is in my hands. It is my presumed loyalty to the other country. I terminate it on the date I notify the foreign official by my application.

However, the foreign citizenship is not thereby automatically renounced. It is subject to processing and approval by the foreign official. It is in their hands, not mine.

Allegiance is my state of mind. Citizenship is some right that the foreign official confers on me. They are separable concepts as a matter of law. The law does not use them interchangeably or randomly.

The foreign official determines when my renunciation of citizenship is effective. I determine when my renunciation of allegiance, if I ever gave it, on the date that I told the foreign official to go to hell with the citizenship that they gave me.

Note that in some countries, you can not renounce your citizenship, even if you proclaim in an ad printed in the most widely disseminated gazette that you owe them no allegiance, you do not want their citizenship and you will never visit there.

Well, it is just a rambunctious reminder that allegiance can and should be decoupled from citizenship, as done by those who framed the 1992 Constitution.

If all of these sounds abstract, just imagine the easier scenario where there is a protracted divorce. The divorce decree granted by a court may come long after the parties no longer owe any loyalty or allegiance to each other.

It is therefore useful to separate the date of the divorce decree from the date when the loyalty ended.

The loyalty is the state of the mind of the parties and is under their control. The divorce decree is the government’s formal recognition of the end of the relationship. It has nothing to do with parties’ state of mind.

To say that the loyalty of the parties terminated on the date of the divorce decree is to confuse the party’s subjective state of mind with the government’s objective action.

We need to be careful when we substitute words used in the Constitution (here allegiance) with our own words (here citizenship), thereby reducing the framers’ words to mere surplusage. Citizenship was known to the framers but they used allegiance. To ignore that is to rewrite the law.

GOGO will treat all Ghanafuo equally.

Da Yie!

The author is a private legal practitioner and a Professor of Accounting.