• Corruption Getting Worse Under NDC
• The Woyomes’ PANDORA BOX
• Israel’s Former President, Mosha Katsav, Jailed
• Former Governor Rod Blagojevich Jailed

We have been told again and again that political corruption is the bane of Africa’s development. While the assertion is accurate, it is also recognized that the type of corruption in which African countries are implicated, just like anywhere else in the world, involves intractable networks with multiple players at various societal levels – there are principal culprits, abettors, underlings, international collaborators, and whole institutions, among others.

From the international financial havens (call them destinations for loot, if you want) in Switzerland to allegations of corruption in the judiciary, the legislature, and the executive in many African countries including Ghana, it has become obvious that the notion that a change of government could bring about accountability is fast becoming a mirage. It is easier to campaign on the back of corruption to win votes, simply because the poor whose taxes are being exploited by the rich and the powerful in society abhor it, but the political will wanes for obvious reasons after winning power. When this happens, corruption only festers and become endemic making it embedded in every aspect of a country’s life, and concomitantly undermines the progress of the people. This section examines the canker from the international levels before drawing down to the local situations.

International Kleptocracy
What beats reason is that instead of the much needed capital flowing to the African continent to spur its development, it is rather leaving the continent for Europe and more developed countries. Africa is the most capital-scarce continent, but this becomes dramatically more pronounced when capital is separated into its private and public components. In a successful region such as East Asia there is more than twice as much private capital as public capital; for Africa, the reverse is true. While private businesses find both scrupulous and unscrupulous means to repatriate profits back home, monies from aid, taxes, and kickbacks, using public office as conduits, find their way to the world’s financial centers. So while a meager capital flows into the continent, much of her capital is outward bound, most of it being hidden owing to its illegality. It is called capital flight. By 1990, 38 % of Africa’s wealth was held abroad, higher than any other region in the world.
Interestingly, a people comparison between those who make the list of the biggest customers of some of the secret financial havens of the world depicts a very ironic picture. The names of Bill Gate, Warren Buffet, and Donald Trump, foremost American entrepreneurs, not Bill Gate, George Bush, and Barack Obama, would make sense here. The latter group, being politicians, are nowhere near the mammoth wealth of the former, being entrepreneurs of their generation. But the obverse is true in most African countries. The leaders of many of these poor countries are themselves among the world’s superrich and some of the biggest customers of the so-called financial havens.
In some cases, leaders from some of these poor countries are richer than the countries they lead. One cannot gloss over the name of the late leader of the former Zaire, now the Democratic Republic of Congo, Mobutu Sese Seko in a discussion of this nature. His country was his cash cow. He milked it without nourishing it; so when the cow became emaciated and turns its anger on the herder, it did not only dispose the herder but plunged the whole ranch into a bedlam. Even when these monies are discovered and efforts made by “requesting” countries to “holders” to return them, these pleas fall on death ears or are stonewalled by the “holder” countries. After the death of Mobutu Sese Seko of the Democratic Republic of the Congo or the former Zaire, billions of dollars looted from Zaire by the late President were tracked to Swiss secret accounts. A whooping US$5 to 6 billion was estimated to have been stashed away by the flamboyant kleptocrat. Interestingly, only 300 miles of road were tarred in that country by the time of his death. Similarly, Abacha’s stolen wealth was also traced to accounts in the same country. But due to the secrecy codes of Swiss banks, it has been very difficult for requesting African countries to retrieve their stolen wealth from the keepers of the loot.
In the United States it came to light in 2004 that Riggs Bank, in Washington, D.C. was holding huge deposits from the President of Equatorial Guinea with officials of the bank writing cringingly effusive letters of encouragement to the plunderer [urging him on to save more]. As soon as the matter came to light it was stopped and the bank radically reorganized. Interestingly, these are the very countries that turn around to churn out corruption indexes each year accusing African countries and their leaders of being corrupt when they are themselves abettors of these corrupt acts.
Until recently, if a French company bribed a public official in a developing country, the payment was tax deductible in France. French taxpayers were indirectly subsidizing bribery. But it did not apply in France. If a French company reported that it had bribed a French politician, the consequence would have been a criminal investigation, not a reduced tax bill.
However, recent developments in international circles give some glimpse of hope to countries whose citizens might have stashed their state funds in personal offshore bank accounts. Nonetheless, whether African countries would also have the guts to stand up to the Swiss authorities and other global financial centers outside the continent remain to be seen.

In a recent suit in Florida, the Internal Revenue Service and Justice Department in the US were seeking to compel the Swiss bank, Union Bank of Switzerland (UBS) to hand over the names of 52,000 U.S. taxpayers with private-banking accounts in Switzerland. According to an affidavit filed with the court by the Swiss tax authorities, the summons “does not identify any facts that could be construed as constituting tax fraud or the like, but rather makes a broad demand for the identity of all U.S. taxpayers for which certain forms have not been filed.” There is suspicion some Americans have evaded tax and shipped their monies abroad to banks with high levels of secrecy. But in hard economic times, with America seemingly not been able to find answers to its own domestic economic problems, it is keen on tracking some of these financial resources.

As usual, the US-Swiss treaty on sharing tax information, which is said to date back over 30 years, has been advanced by the Swiss side as a bulwark to frustrate any attempts at seeking out individuals who might have infringe on tax edicts of the United States. But this is where it matters most. As the Swiss authorities tried to hide behind the cloak of US-Swiss treaty to seal off their world of secrecy from a prying Big Brother, the US threatened to use the Central Intelligence Authority (CIA) and the Federal Bureau of Investigations (FBI) to break Swiss secrecy codes if they continue to frustrate their attempts at accessing vital information on American citizens who have evaded tax and have deposits with the world’s most revered depositories for their secrecy. This effectively cowed the Swiss into submission – the Swiss are said to have released 5000 names to the Obama administration in 2010, presumably to avoid the invasion of their secrecy codes.

If this is the precedent, would the United States, lead the way by being benevolent enough to urge its own banks to return stolen monies deposited in its banks to poor African countries like Equatorial Guinea? If not, do African countries even have the leverage or will to request the Swiss and other depositories around the world to return their stolen wealth?

What is incredible is that in cases where information on these stolen monies become available and leadership of opposition parties or newly installed governments have been urged to expose these crimes and request the return of these monies, they grippingly show disinterest in pursing what have been plundered from their countries. The only conclusion the director of World Bank Communications, Dr. Sina Odugbemi, at a conference in Ohio University in April 2010, could draw from this development is that it is obvious political elites are mindful of the effects of some of these actions, which may predispose them to similar actions when they leave office one day. Therefore, the adage “scratch my back and let me scratch yours” and the “revolving door” politics is fast becoming the norm in many African countries, even those that have changed governments in the last few years.

The conviction once was that if anti-corruption institutions are failing in their duties, a change of government within the democratic dispensation offers a relief. The anti-corruption campaigns, as key political messages by opposition parties in many African countries including Ghana, offered that false expectation that a new administration would unearth some of the corrupt activities of previous regimes and ensure accountability, especially at the political level.

It is noted, however, that “even radical and peaceful change can prove disappointing. In December 2002, Kenya breathed a sigh of relief when the 24 year rule of Daniel Arap Moi ended peacefully. The new president, Mwai Kibaki, a former finance minister and vice president under the old regime, had allegedly changed his stripes.” Unfortunately, a couple of years into his presidency, April 2004, draft revisions to the constitution intended to curb the power of the presidency and the plundering of public assets were blocked by a faction close to the president. In July the same year, the British envoy to Kenya told businessmen that the new government had signed corrupt deals worth almost US$200 million. “Evidently the practitioners now in government have the arrogance, greed and perhaps a desperate sense of panic to lead them to eat like gluttons. They may expect we shall not see, or notice, or will forgive them a bit of gluttony because they profess to like Oxfam lunches. But they can hardly expect us not to care when their gluttony causes them to vomit all over our shoes,” he said.

In Ghana, the issue of corruption had been one of the key election issues in the tightly contested election in 2008. The opposition NDC persistently accused the then ruling NPP administration of massive corruption. A plethora of government contracts, payments, and transactions involving both local and foreign companies were believed to have been shortchanged by the then NPP government officials and their underlings with the proceeds ending up in their personal bank accounts or those of their cronies. Watching the public accounts committee hearing in 2007, in Ghana, one got the impression that there was a bottomless abyss under her revenue vat, created by those charged with the responsibility of safeguarding her revenue mobilization, which is channeled into personal accounts and private pockets.

On the heels of that came the disclosures on how the NPP government obtained a loan facility of US$20 million dollars from India for the celebration of Ghana’s 50th independence anniversary celebration. This amount excluded components of local contributions from individuals and corporate organizations. The secretariat had reportedly spent US$60 million and was still in arrears of US$18 million two years after the celebrations. Disgruntled insiders continuously leaked information to the then opposition NDC about how resources made available to the body tasked – Ghana @ 50 – to oversee the yearlong celebration were being diverted into private pockets. By the end of the festivities, the expenditure incurred stood at US$78 million against the US$20 million approved by Ghana’s legislative body. Armed with these pieces of information and other colossal scandals like the carting away of 2 tons of cocaine from police exhibit room at the police headquarters in Accra, the capital, the opposition NDC continued to harmer on corruption as its key campaign message. The message sunk so deep that even the media gatekeepers who had been on the payroll of the NPP government since it took office could not do the damage control. Indeed, if the election had been a media war, the NDC obviously would have lost it even before the contest started. There were systematic attempts at every twist and turn to malign the opposition party and its leadership by some known media outlets. But this goes to underscore the fact that audience come to the media with their own backgrounds and views and the media only helps them to reinforce those views, as the cultural theorist argue. The issue of corruption made the government more and more unpopular among Ghanaians. The message sank so well that the NDC won the election 2008.

Although it is yet unknown whether any of her leaders, past and present, have stashed off public resources away in Swiss banks, there are no doubts about massive looting of the state coffers. The Justice Douse Commission, a commission set up by the NDC government upon assumption of office speaks volumes of that. Two important findings will bring the reader to this understanding. First, the auditor general’s report revealed that “neither staff nor records to assist in the auditing were available, and the Auditor General’s Department had to put receipts and payments together to determine whether there was value for money.” Practically, only one out of 25 public toilets for which an amount of GH 19 million, an equivalent of US$19 million, was allocated had been provided two years after the celebrations.

This was happening in a country where there are large numbers of unemployed individuals with finance and management degrees who could ensure the right things were done. But it goes to the very roots of the problem. When you employ family members and cronies who lack the expertise needed for these jobs, the outcome is gross indiscipline in the management of state resources. Since there were no checks and balances and this pseudo-institution, like many others, was ran like a family business, the outcome was not unexpected.

It is said that the wheels of justice turn so slow. It is unlikely, after a change of government, that Ghanaians were expecting the government to bypass the law courts to dump alleged culprits in jail without due process. But Ghanaians expect due diligence by the government in investigating some of these cases and bringing offenders to book, no matter how long it takes.

At the congress that elected the flag-bearer for the main opposition NPP, Nana Akuffo-Addo, for the 2012 election, the immediate former Ghanaian president, John Agyekum Kufour, accused his successor’s administration of being corrupt. In the ex-president’s words, “Corruption is becoming incarnate. We see corruption everywhere.” To him corruption has resurged under Atta-Mills, as if under his administration corruption was extinct. This comment, however, sparked off a hail of fire from two overzealous government functionaries – a deputy information minister, Samuel Okudzeto and a presidential aide-de-camp, Nii Lamptey Vanderpuye – to the effect that they had discovered a can of worms on assumption of office but had been prevailed upon by the international community, in the supreme interest of peace, as it were, not to open it.

Similar responses were to come from the NDC Kwabena Mensah Woyome, MP for South Tongu, whose brother Alfred Woyome is being accused by the MP for Assin North, Ken Agyepong, of swindling the state to the tune of GHC42 million. The young Woyome talks about a PANDORA BOX that needs opening. May someone tell the MP to carry the PANDORA BOX to the courts? After all, that is what the courts are for. If he needs help with a porter, I am sure there are many in his village who do not even have safe drinking water who can carry the PANDORA BOX to the courts for a pittance.

This is against the backdrop that the NDC campaigned vigorously on the back of fighting corruption and was elected to do a solemn duty to Ghanaians by fighting the menace, it now turned around to point fingers at the international community for prevailing on it to halt a duty its leadership had promised, with an oath, to execute. The term international community has sometimes been used nondescriptly to mean nothing. Who is the international community? Is it supposedly London and Washington, or it does include the comity of nations, headquartered in New York? Are they not the very institutions that accuse African governments day-in day-out of corruption? Why would they now turn around to halt what would make Ghana corruption free? Are they complicit in the so-called can of worm of corruption in Ghana?

If the president’s aide-de-camp is supposedly the former’s confidante, then he must be speaking for the president, and the public must trust what he tells them. One would have expected the president to call his aide-de-camp to order or disassociate himself from the statement, but indeed he must have said exactly what the president was thinking. For the Woyomes and Agyepong, they are now on each other’s, so there is a PANDORA BOX that needs opening.

These episodes only underscore the fact that politicians in young democracies such as Ghana and elsewhere are waking up to the reality that with the democratic trajectory, no government has monopoly over power. There is, therefore, the tendency to believe that the corrupt people you haul before the courts may return to apply same measures to you, especially when corruption starts to raise its head in your own administration.

Beyond the hail of rebuttal, the question needs to be asked whether the former Ghanaian president was telling his countrymen something they needed to find out more about. Did he have any incriminating evidence against functionaries serving in the government of his successor or it is just a political rhetoric as usual? If he did, why did he not submit that to the police service he left behind in less than two years? This question arises especially when he has been telling Ghanaians to go to the police if they had any incriminating evidence against any of his officials, when he was a president.

Print a copy and enter a discussion with your neighbor on this…
The above-title is serialized into 30 articles covering issues of politics, corruption, education, migration, the economy (Ghanaian economy), unemployment, land tenure, dearth of policy innovation, and stories from the frontlines – Cote d’Ivoire, Kenya, ECOWAS and the AU. The series are syndicated and media houses/outlets interested in enriching the national debates in Ghana for the 2012 are free to publish all the series.

By: Prosper Yao Tsikata
Email: [email protected]
Blog: http://theafricanmessenger.blogspot.com

As a country that came from colonization many thought that our politics would be civil and responsible than before, as our democracy keeps growing from strength to strength, but that is not the case. Rather, is tempting us to remind ourselves of the dark days in our political history. 

As a former student leader and someone who sit on the fence with basic understanding of conceptual politics I have always held the belief that politics is competition of ideas and not insults. 

The academic discipline that describes how power is exercised, through the administration of public power, to manage citizens affairs may perhaps be termed politics. 

The recent development in our airwaves in relation to the politics of insult is in bad taste and I do not want to belabor it, we need to be shameful of ourselves. I’m very much worried about this phenomenon and I know every well meaning Ghanaian would also be concern about this, particularly when my 12-year-old junior brother came to ask me why there is so much insult on our radio station. I was embarrassed. While in all these, the media has been indispensable. The media should be seen as a powerful tool for education and as such must not be used for malice. 

As a celebrated country and the pride of African democracy, our politics should be issue centered rather than vitriolic attacks on personalities. However, it is very inappropriate to destroy a person’s hard earned reputation for money or parochial ends and we need to be conscious about that. 

In our daily lives we are faced with myriad of challenges – lack of good drinking water in our taps, hawkers on our street, inflation, reduction in the size of kenkey, poor services in our hospitals, lack of quality education in our schools which makes the people functionally illiterate and so on. Yet we digress from all these sensitive issues and we talk about how short or tall a presidential candidate is, how handsome or ugly another is, how sick or mad, “ntafoo koa”, “wonai chi a apai pai”, “kooko-ase kurasene”, “All die be die” among others. In my judgment, I think enough is enough; the sooner we nib it in the bud the better. We must wake up from our slumber and extricate ourselves from this journey of nowhere. 

I hold a firm opinion that, the best way to kill a tree is not to cut it branches but to dig out its roots. To me, the root of this problem has to do with unethical journalism. Discretion is the better part of valor. As the Prophet Mohammed wisely pointed out “Speak good (well) or be Silent”. 
Clearly, this means that if you have nothing meaningful to say, the best you could do is to humbly keep quiet. 

I recommend to the media editors to look for those mature people in our society who are inspirational to the youth, who set an exemplary good life for others to emulate, those who make sense in their discussions rather than noise. 

What can we do about this cancer that is impeding the growth of our democracy? 

THE MEDIA

First, there must be laws and regulations that will empower the media commission so that it can enforce professionalism in their modus operands. Second, the media profession must have ethical values far from political ideologies and organizations. We must end the practice of corrupting the press for partisan purposes. Third, media practitioners should exercise their freedom of expression through a high sense of responsibilities. 

Fourth, media practitioners require a lot of investment both in human resource and in technology to be able to offer an excellent job and reduce temptation from selfish politicians. 

Fifth, the media should censor putting reckless or “loose talks” on air. Again, the practitioners have to pluck up courage and dissuade foul mouth politicians who for some reasons best known to them spew insults on our air waves instead of substantive issues. 

As we are approaching the 2012 elections, I am urging all and sundry to be circumspect and discerning to eschew gullibility and apocalyptic consequences. However, the purpose of an election is to determine the will of the people who are voting. 

Consistent with these provisions, someday we shall move forward without doubt. 


Author: Tijani Kassim Abdallah
Ibn_abass2g7@yahoo. com

Source: S. Kwaku Asare

In this article, I present equal citizenship as a fundamental principle animating the 1992 Constitution. I also argue that the principle is under imminent threat and danger. The purpose of the article is to call for a united and sustained effort to protect the principle and to avoid becoming a society of unequal citizens. I start by defining equal citizenship and describing its constitutional foundations. This is followed by a discussion of areas where equal citizenship is currently under severe attack.

Briefly, the areas are: (1) some citizens are banned from holding certain unelected public offices; (2) some citizens are banned from holding certain elected public offices; (3) some citizens’ votes count more than others; (4) some voting laws are not enforced with the sole purpose of disenfranchising some citizens. I conclude with strategies that the citizens under attack must pursue to win this war on equal citizenship. What is Equal Citizenship? The Constitution addresses citizenship from two perspectives: In chapter 3, it focuses on citizenship as status and delineates who is a Ghanaian citizen. In chapter 7, it focuses on citizenship as a bundle of rights and delineates the rights that accrue to only and all citizens. Thus, citizenship status and citizenship rights are inseparable and represent different sides of the same coin. This is an extremely important concept because it highlights that except as severed by the Constitution itself, any actions to separate status and rights are presumptively unconstitutional. In Chapter 3, the Constitution stipulates the various ways that one can become a Ghanaian. These include grandfathered citizenship (those who were citizens before 1992), blood citizenship (anyone born anywhere to at least one Ghanaian citizen), child citizenship (children who are less than 8 years and found in Ghana or less than 16 years and adopted) and marriage citizenship (anyone married to a Ghanaian can apply to become a citizen). In Chapter 7, the Constitution stipulates that citizens have the unfettered right to vote. This right has several derivative rights, including the right to be registered, the right to participate fully and equally in the political process, the right to cast a ballot, the right for the ballot to be counted, the right for the ballot to be weighed equally, the right to run for elected office, the right to hold unelected public office, and the right to finance a candidate.

In some rare instances, the Constitution itself severs status and rights. For instance, only 18 year olds can vote (but notice here that it is assumed their parent or guardians will participate on their behalf). Only those of sound mind can vote (but notice here it is because it is assumed that they lack the capacity to participate in the political process). Those who commit high crimes or tax crimes or those who are bankrupt (and have not been discharged) cannot hold certain elected and unelected public office. However, 2 notice this is a restriction based on serious criminal actions or those that raise questions about a citizen’s ability to be trusted. Thus, equal citizenship means every citizen, as defined by Chapter 3 of the constitution, is entitled to the same rights, as defined in Chapter 7. By embracing the doctrine of equal citizenship, the Constitution and people of Ghana rejected a Caste system that varies a citizen’s rights based on social, economic, political, religious, ethnic, resident, or other citizenship status. In effect, in Ghana, except where the constitution itself curtails these political rights, the rights cannot be disturbed. Equal citizenship affirms that whatever their inequalities of wealth, status, and power in the everyday activities of civil society; citizenship gives everyone the same status as peers in the political public. It is not hard to understand why equal citizenship was such an important concept to those who framed the 1992 Constitution. The 4 th Republic emerged from a period where “the Provisional National Defence Council (PNDC) had polarized Ghanaian society into “Citizens” (“the professionals,” the relatively well-off”) and “People” (the working classes, very junior officers, and the unemployed). The “citizens” were presumed to be corrupt, and many were put before the National Investigations Committee and Citizens Vetting Committee to explain how they came by their wealth. Soldiers were positioned behind such persons undergoing interrogation, and administered slaps, beatings and military drills, often under orders from civilian personnel.” Class warfare was something that the new Republic had to avoid. Threats to Equal citizenship The doctrine of equal citizenship is being violated in four areas: (1) some citizens are banned from holding certain unelected public offices; (2) some citizens are banned from holding certain elected public offices; (3) some citizens’ votes count more than others; (4) some voting laws are not enforced with the sole purpose of disenfranchising some citizens.

Some citizens are unlawfully banned from holding certain unelected public offices In 1996, Parliament repealed Article 8(1) of the Constitution, and substituted Article 8(1) Constitution, (Amendment Act), 1996 (Act 527). The substituted Article states, “A citizen of Ghana may hold the citizenship of any other country in addition to his citizenship of Ghana.” The effect of this amendment is that the Republic now extends dual citizenship to a broader class of citizens. This is not a problem. Parliament has the express power under Article 9(1) of the Constitution to make provision for the acquisition of citizenship of Ghana by persons who are not eligible to become citizens of Ghana. Further, Article 8(1) was not an entrenched provision of the 1992 Constitution. Therefore, Parliament had the power to amend it using the ordinary amendment procedure specified in Article 291 of the 1992 Constitution.3 At the same time, Act 527 sought to disqualify dual citizens from holding several specified public offices by inserting Article 8(2) into the Constitution.

Article 8(2) states “[W]ithout prejudice to article 94(2)(a) of the Constitution, no citizen of Ghana shall qualify to be appointed as a holder of any office specified in this clause if he holds the citizenship of any other country in addition to his citizenship of Ghana

• Ambassador or High Commissioner; • Secretary to the Cabinet • Chief of Defense Staff or any Service Chief; • Inspector General of Police; • Commissioner, Customs, Excise and Preventive Service; • Director of Immigration Service; and • Any office specified by an Act of Parliament.”

Subsequently, the Citizenship Act of 2000 expanded the number of public offices and granted the minister of interior the power to exclude more offices. The new list reads as follows:

• Chief Justice and Justices of the Supreme Court; • Ambassador or High Commissioner; • Secretary to the Cabinet; • Chief of Defence Staff or any Service Chief; • Inspector-General of Police; • Commissioner, Custom, Excise and Preventive Service; • Director of Immigration Service; • Commissioner, Value Added Tax Service; • Director-General, Prisons Service; • Chief Fire Officer; • Chief Director of a Ministry; • the rank of a Colonel in the Army or its equivalent in the other security services; and • Any other public office that the Minister may by legislative instrument prescribe

In addition, the Citizenship Regulation 2001 requires dual citizens to carry dual citizenship certificates. Under those regulations, the person must apply for Form 11 (Dual Citizenship certificate) by filling Form 10 at a cost of 200 GHC. She must have a Cover letter; Evidence of Ghanaian citizenship, Evidence of parents’ citizenship, Naturalization Certificate and 4 passport-sized Picture.

A notary public, High/Circuit Judge or Head of Ghana’s Mission Abroad, must seal the Form. If satisfied, the Minister would issue the Dual Citizenship Certificate (Form 11), at a statutory fee, which is now 20 GHC.4 Act 527 is unconstitutional because it creates a class of citizens with fewer rights, in violation of the doctrine of equal citizenship and the Constitution. Specifically, by banning dual citizens from holding the specified offices, Act 527 curtails their right to participate fully and equally in the political life of the country. This recreates the caste system that the 1992 constitution sought to avoid. Further, Act 527 discriminates against dual-citizens and violates their dignity in violation of their fundamental human rights recognized in Chapter 5 of the constitution.

It is easy to see how Act 527 discriminates against dual citizens. But the violation of their dignity requires additional elaboration. Based on case law from South Africa and other jurisdictions, human dignity is said to be violated where groups are marginalized, ignored or devalued; where minorities are excluded from decision-making processes that affect them; or where individuals are treated as objects. Clearly, the exclusions in Act 527 treat dual citizens as objects; devalues and dehumanizes them; and exclude them from decision-making processes that affect them.

A potentially elegant but incurably flawed argument to support the ban is that Act 527 is an amendment of the Constitution; hence it cannot be constitutional. Simply stated, what is in the constitution cannot be unconstitutional!

While it is apt to argue that a provision of the Constitution cannot be said to be unconstitutional, it is also true and even more important to realize that provisions must be put in the Constitution in only the constitutionally permissible ways. The constitution provides 2 different paths to its amendment. Article 290 provides the path for amending entrenched provisions and Article 291 is the path for amending provisions that are not entrenched.

The Article 290 path is noteworthy because it requires that the amendments be submitted to a referendum held throughout Ghana. Further, the amendment can only pass if at least forty percent of the persons entitled to vote, voted at the referendum and at least seventyfive percent of the persons who voted cast their votes in favor of the passing of the bill.

Further, the constitution identifies those provisions that must be amended only via Article 290. The right to vote (Article 42); the right participate in political activity intended to influence the composition and policies of the Government (Article 55(10)). These two are entrenched because they are the pillars of equal citizenship. In addition, the anti -discrimination clause (Article 17) and the dignity clause (Article 15) are both entrenched.

Needless to say, any amendment of the Constitution that disturbs these entrenched provisions are void and of no effect unless the amendments are procured by following the path outlined by Article 290. And therein lies the problem with the argument that Act 527 is constitutional because it is in the Constitution! The argument is both too little and too much. It is too little because it fails to take into account the effect and implications of the purported amendment. It is too 5 much because we have an ordinary amendment of the constitution, that its extraordinary in the way it extinguishes fundamental rights, sweeping in its impact on the body politic, and revolutionary in the way it sets aside the doctrine of equal citizenship in favor of a caste system that many of us spent our lives fighting against during the PNDC days. Undoubtedly, Act 527 is an amendment. The more interesting question is what is the effect of the amendment and was the amendment properly procured? This is an important question because, as discussed, some amendments can only be procured via a referendum.

What then is the effect of an amendment of the constitution that creates a class of citizens who are excluded from holding certain public offices? In my opinion, the exclusions in Act 527 has the effect of amending the sections of the constitution that guarantee that all citizens can fully and equally participate in the political process. I also believe that the exclusions interfere with the right to vote, broadly and properly construed. In effect, the exclusions derail the concept of equal citizenship.

Further, Act 527 has the effect of amending the anti-discrimination and dignity clauses of the constitution. All four clauses being entrenched provisions, the government does not have the power to amend them by using the ordinary amendment procedures in Article 291. It is also important to note that disqualifying dual citizens from holding the specified offices serves no legitimate purpose. In the alternative, the disqualification is disproportional. That is, assuming that the ban serves a legitimate purpose, the government could seek less restrictive ways to achieve this purpose than an outright ban on dual citizens. One such way is to ask the dual citizens to take a special oath! The exclusions in Act 527 are problematic for another important reason. Specifically, the prohibitions are not consistent with our obligations under the International Covenant of Civil and Political Rights (Article 26), the African Charter on Human and Peoples’ rights (Articles 2 and 3), and the Universal Declaration of Human Rights (Article 7). Finally, the prohibition is counter to the emerging progressive jurisprudence worldwide, including Nigeria where the Courts have held that Nigerians by birth can stand for any office, including the Presidency, even if they are dual citizens.

In my opinion, the requirement to possess additional documentation that sole citizens are not required to possess is unreasonable, unnecessary, discriminatory and not constitutionally warranted and is therefore null, void and of no effect. What purpose is achieved by acquiring this document that is neither a travel document nor an identification card? Dual citizens ingress into Ghana with their Ghanaian passports and ingress into their other countries of citizenship with the passports of those countries. When egressing out of Ghana, a carrier might demand evidence that the dual citizen is admissible into the destination country and the dual citizen can 6 show the non-Ghanaian passport as evidence. The Dual Citizenship certificate is entirely worthless. In sum, the Amended Article 8(2) and the consequential legislation imposing public office-holding exclusions on certain citizens of Ghana is unconstitutional in that, the amendment has the obvious and intended effect (if not the express purpose) of discriminating against a certain class of citizens in violation of the Equality Clause of the constitution; devaluing and dehumanizing them in violation of the Dignity clause of the constitution; curtailing their right to participate equally and fully in the political process in violation of the Participation clause of the constitution; the grounds for the exclusions are not permissible grounds under the Equality, Dignity and Participation clauses of the Constitution; The Equality, Dignity and Participation Clauses of the Constitution being entrenched clauses of the Constitution, any purported amendment to those provision must be in conformance with the provision for the amendment of entrenched clauses spelled out in Article 290 of the Constitution;

The amendment in question, not having been procured in conformance with the provision spelled out in Article 290 for the amendment of an entrenched clause of the Constitution, cannot stand.

The myth of the ban on holding elected public office According to Article 94(2)(a) “A person shall not be qualified to be a Member of Parliament if he owes allegiance to a country other than Ghana.” Remarkably, this provision is being used to prosecute and persecute dual-citizens. For instance, Adamu Sakande, the MP from Bawku, has been on trial since 2008, even though he has renounced his British Citizenship.

Let us be very clear that Article 94(2)(a) does not talk about dual citizenship. The framers of the 1992 constitution, when they wanted to talk about dual citizens did it in very clear and precise language. For instance, the pre-Amended Article 8(1) takes the form of “Subject to this article, a citizen of Ghana Shall cease forthwith to be a citizen of Ghana if, on attaining the age of twenty-one years, he, by a voluntary act, other than marriage, acquired or retains the citizenship of a country other than Ghana.” So Article 94(2)(a), if it were targeted at dual citizens would have read “a citizen of Ghana who acquires or retains the citizenship of a country other than Ghana shall not be qualified to be a Member of Parliament.”

But the framers did not use this language! And for the obvious reason, that the statement was not targeted at dual citizens, who were largely aliens under the pre-amended Article 8(1) regime.7 It is important to distinguish allegiance from citizenship. As a general rule, allegiance is owed to Kings and not to Republics. Allegiance is a relic of the common law, where subjects in England, had to trade their allegiance to the King in exchange for land. If one did a comparative study of the oaths that new citizens take in various countries, one would find significant variance in the content of the oaths. For instance, in USA, a new citizen makes oath that “I will support and defend the Constitution and Laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” Is this the same thing as owing allegiance to the USA?

Canada does it differently. Here a new citizen makes oath as follows “I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen.” Again, here the allegiance is to the Queen, as allegiances, under the common law has always been, in return for land from the monarch.”

The point is that it is not only incorrect to assume that Article 94(2)(a) addresses dual citizens, it is also undeniably wrong to assume that becoming a citizen of every country requires the same oath of allegiance. Thus, whether one owes allegiance to another country becomes a matter of fact, not a matter of assumption, as is being currently done in Ghana, especially by the political parties and in the Adamu case, where a perjury charge is being used to obfuscate the agenda against violating equal citizenship.

Who was Article 94(2)(a) targeted at? While answering this question is not necessary to demonstrate that it was not targeted at dual citizens, I believe it is important for me to provide an answer for those who might ask the question. I believe that Article 94(2)(a) was targeted at those single citizens who conspired with other countries to engage in activities deemed inimical to the interests of the Republic. Official concerns and unofficial rumors about agents of foreign governments are pervasive in our political landscape to have attracted the attention of the constitutional framers. A memorable instance of this problem is the swap between USA and Ghana, in the matter of Soussodis et al.

Some will no doubt disagree with my distinction between allegiance and citizenship. But even those who disagree with the distinction would probably concede that Article 94(2)(a) is hopelessly ambiguous. It is a widely understood and accepted principle of interpretation that ambiguous laws are not to be construed to deny people rights, here a right that is fundamental to citizenship.

No court has interpreted Article 94(2)(a). However, some political parties have opportunistically applied the provision to disqualify dual citizens or to intimidate them into renouncing their citizenship, a practice that subsequently robs the renouncer the ability to travel freely to the other country where she might continue to have interests, including family. In the Adamu Sakande case, the courts have entertained a writ from a civilian that essentially takes for granted that Article 94(2)(a) is directed to dual citizens.

The Republic has built on this private frivolous writ to bring a perjury charge against the Member of Parliament.8 How are other emerging democracies handling the dual citizenship question? The most recent decision on the matter is the decision of the European Court of Human Rights (ECHR) in the case of Tanase and Chirtoaca v. Moldova. In that case, the applicants, both Moldovan nationals had challenged a 2008 amendment to the Moldovan Constitution, which barred Moldovans who held dual nationality from contesting for Parliamentary positions. The Grand Chamber of the Court held that the 2008 amendments were unlawful and disproportionate to any concern of loyalty the country may have. The Court held that- ‘…in a democracy, loyalty to a State did not necessarily mean loyalty to the actual government of that State or to a particular political party. There were other methods available to the Moldovan Government to ensure loyalty of MPs to the nation, such as requiring them to take an oath. Such measures had been adopted by other European countries.’ The archaic language of Article 94(2)(a), imported into the Constitution in 1992 when dual citizenship was not even recognized, does not affect dual citizens per se and the persecution of Adamu Sakande must stop. In the same breadth, I urge those dual citizens interested in running for office not to renounce their citizenship but to fight the war against equal citizenship.

Some citizens’ votes count more than others According to Article 47 (1) “The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota.” Here is another command form the Constitution that reinforces the doctrine of equal citizenship. By using the population quota to demarcate constituency boundaries, each person’s vote is weighed equally, consistent with equal citizenship. Yet, since 1992, the Electoral Commissioner has created boundaries that severely violate Article 47(1), justifying the violation by citing the variance provision of Article 47. The variance provision of Article 47, allows the Electoral Commissioner to create constituencies whose numbers “may be greater or less than the population quota in order to take account of means of communication, geographical features, density of population and area and boundaries of the regions and other administrative or traditional areas.” The variance provision is necessary because of various logistical realities and the difficulties of perfect division. However, it does not permit the Electoral Commissioner to create constituencies that are 10 times as smaller (or larger) as others. A close study of the post- 1992 electoral shows a clear tendency for the largest constituencies to be NPP strongholds and the smallest constituencies to be NDC strongholds. It is neither necessary nor useful to speculate on the reasons for this electoral map. What is clear is that it has resulted in gerrymandering, and has assaulted the doctrine of equal citizenship.

The Electoral Commissioner should simply set an interval that all constituencies should fall within. As an example, assuming, the population is 20 million and there are 200 constituencies. That leads to a population quota of 100,000. The formula for creating constituencies can be specified as the population quota ± 5%. This way, constituencies can range from 95,000 to 105,000, depending on the variance factors. I am happy that 9 this matter is now before the Supreme Court in Bortier and Quaye v Electoral Commissioner. It is my fervent hope that the Supreme Court’s decision will affirm the doctrine of equal citizenship.

ALL LAW BE LAW

The Supreme Court is to be commended on its recent decision on prisoners’ right to vote (Ahumah Ocansey et al. v The Electoral Commissioner et al.). The Court is right in upholding the doctrine of equal citizenship. Under Article 42, the right to vote is given in unqualified terms and is not forfeited by committing a crime. What is not so amusing is the rapid move by the Electoral Commissioner and the Mills Government to enforce the ruling compared to the snail pace in enforcing ROPAA. ROPAA must be enforced because ALL LAW BE LAW!

It is utterly inappropriate and incurably lawless for the Electoral Commissioner and the Government to use the lack of funds to selectively enforce voting rights and consciously undermine equal citizenship. Failing to act, citizens abroad must issue a writ of mandamus to compel the Electoral Commissioner to put in place mechanisms to allow them to vote in 2012. The Electoral Commissioner has an absolute duty to enforce ROPAA and has no discretion whatsoever.

Winning the War on Equal Citizenship

How do we win the war on equal citizenship? I see six steps. First, those who believe in the doctrine of equal citizenship must support and fund only candidates who commit to enforce the doctrine. Second, citizens abroad must engage with the Electoral Commissioner to seek ways to implement ROPAA for 2012. If Kenya and Ivory Coast can implement their “ROPAA,” why not Ghana? I think citizens abroad should come out with proposals for ROPAA to become self-financing, perhaps by paying a nominal registration fee of no more than $50 to a ROPAA fund. Third, more workshops are needed on equal citizenship. Fourth, we must establish a civil liberties union to fight in the courts. Finally, those who are affected by the war on equal citizenship must organize.

They are too divided and that makes it easy for laws to be made and applied in ways that are detrimental to their interests.