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The Decision in Francis Osei-Bonsu V The Attorney-General: A wake-up call to parliament in amending constitutional provisions

Opinion

Vincent Ekow Assafuah (Esq)

20 days ago
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“O Lord, correct me, but with justice; Not in Your anger, lest you bring me to nothing”-

Jeremiah 10:24, New King James Version.

Today, I express my opinion on the outcome of this decision wearing two caps; that is my lawyerly cap and my parliamentary cap as I fittingly possess these two caps and this decision of the Supreme Court revolves around me in these two capacities.

INTRODUCTION

The Supreme Court of Ghana as the constitutional court and repository of legal knowledge has a duty to safeguard the 1992 Constitution which has formed the bedrock of the democracy we enjoy today. As one of the safeguard mechanisms, the Supreme Court is vested with exclusive original jurisdiction to determine the constitutionality or otherwise of any enactment, rule, or order and this jurisdiction has been emphatically stated in the Constitution as follows;

“(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in

(b) All matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution”.

In MICHAEL YEBOAH V JOSEPH HENRY MENSAH, Kpegah JSC in his dissenting opinion, discussed the exclusive original jurisdiction of the Supreme Court as follows;

“The burden of the submission so far is that the Supreme Court can be said to have three types of exclusive original jurisdiction: (i) enforcement jurisdiction; (ii) interpretative jurisdiction; and (iii) jurisdiction to declare an enactment as being inconsistent with the constitution and therefore void.”

As trustees of the Constitution, the Supreme Court has a duty to protect the Constitution and to ensure that its supremacy is at all times upheld. In CHARLES MATE KOLE AND NENE AZAGO KWESITSU V THE ELECTORAL COMMISSION AND THE ATTORNEY-GENERAL, the apex Court unanimously speaking through Atuguba JSC held that;

“The Constitution of Ghana under articles 1 and 2 is the supreme and most fundamental law of Ghana and it is clear from articles 2 and 130 as construed by this court that subject to the High Court’s jurisdiction in the enforcement of private fundamental human rights this court is the Trustee of the 1992 Constitution of Ghana. Clearly then if a genuine break with the infamous case of In Re Akoto (1961) 2 GLR 253, SC is to be made by this court then this court cannot shut its eyes to breaches of the Constitution when they loom large in a case before it”

It is therefore not in doubt that the Supreme Court is the fulcrum for the determination of the constitutionality or otherwise of any enactment, rule, or order and where the apex Court concludes that an enactment, rule, or order has breached the Constitution, declare same as void.

BACKGROUND

On Wednesday, the 24th day of April 2024, the Supreme Court by a 6-1 majority held thatSections 16(2)(a), (h), (i) (j), (k), and (l) of the Citizenship Act, 2000 (Act 591) wereunconstitutional as these sections were made contrary to Article 289(2) of the 1992 Constitution.

This decision has raised many eyebrows among the citizenry as ordinary Ghanaians truly want to appreciate the cause and consequences of the decision. I shall assist in this regard by putting on my lawyerly cap at this juncture.

LEGAL EXPLICATION OF THE DECISION

Prior to the enactment of Act 527, the Constitution of Ghana did not generally accept the idea of dual citizenship. This meant that our brothers and sisters in the Diaspora could not attain in addition to their foreign citizenship, a Ghanaian one, and this ultimately had a toll on the socio-economic growth of the country. The original Article 8 of the 1992 Constitution stated in clause 1 as follows;

“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, acquires or retains the citizenship of a country other than Ghana.”

This provision meant that aside from marriage, generally, a person could not acquire in addition to his or her Ghanaian citizenship, the citizenship of any other country.

However, Act 527 came in to salvage the situation and provided generally that a citizen of Ghana could in addition to his or her Ghanaian citizenship, acquire the citizenship of any other country. The framers of this Constitutional Amendment in their own wisdom also provided that, despite the acceptance of dual citizenship generally, some offices in Ghana should not be occupied by people with dual citizenship. The rationale was that these offices needed people who owed a hundred percent allegiance to the motherland only and not to any other country. The said offices as provided by the amendment are as follows;

a. Ambassador or High Commissioner;
b. Secretary to the Cabinet;
c. Chief of Defence Staff or any Service Chief;
d. Inspector-General of Police;
e. Commissioner, Customs, Excise and Preventive Service;
f. Director of Immigration Service; and 
g. Any office specified by an Act of Parliament.
What this means is that the above-listed offices cannot be occupied by a person with dual citizenship.

Clearly, the list of offices not to be occupied by dual citizens is not exhaustive and could be added on by an Act of Parliament. A cursory look at the impugned sections in Act 591 reveals that those provisions were added to the list provided in Article 8(2) of the 1992 Constitution.

Section 16 of the Act 591 provided as follows;

“(2) without prejudice to Article 94 (2) (a) of the Constitution, a citizen does not qualify to be

Appointed as a holder of an office specified in this subsection if the citizen holds the citizenship of any other country in addition to the citizenship of Ghana:

(a) Chief Justice and Justices of the Supreme Court;

(b) Ambassador or High Commissioner;

(c) Secretary to the Cabinet;

(d) Chief of Defence Staff or any Service Chief;

(e) Inspector-General of Police;

(f) Commissioner, Custom, Excise and Preventive Service;

(g) Director of Immigration Service;

(h) Commissioner, Value Added Tax Service;

(i) Director-General, Prisons Service;

(j) Chief Fire Officer;

(k) Chief Director of a Ministry;

(l) The rank of a Colonel in the Army or its equivalent in the other security services; and

(m) Any other public office that the Minister may, by legislative instrument, prescribe.”

One would hurriedly and erroneously conclude that it is pursuant to Article 8(2)(g) of the 1992 Constitution of Ghana that Parliament has added to the list that cannot be occupied by dual citizens in sections 16(2)(a), (h), (i), (j), (k), and (l) of Act 591.

The problem is not necessarily with the addition of these offices but how they were added. In other terms, was the right procedure used in adding on to these offices as stipulated in Article 8(2) of the 1992 Constitution?

Admittedly, the impugned sections of Act 591 sought to add to the list provided in Article 8(2) of the Constitution, 1992. Can we conclude that the addition to the list as provided in Article 8(2) of the Constitution, 1992 by the impugned sections amounts to an amendment of the Constitution?

The Oxford Learner’s Dictionary defines amendment as “a small change or improvement that is made to a document or proposed new law; the process of changing a document or proposed new law”. The literal meaning of the word “amendment” connotes changed either by way of an addition or deletion of a text and this is trite. Similarly, in NANA BARIMA EKOW GYESA V BANK OF GHANA AND NANA KWO GYANTEH IV, His Lordship, Dr. Richmond Osei-Hwere J defined ‘amendment’ relying on the law dictionary at the lawdictionary.org as follows;

“In practice. The correction of an error committed in any process, pleading, or proceeding at law, or in equity, and which is done either of course, or by the consent of parties, or upon motion to the court in which the proceeding is pending. 3 Bl. Comm. 407, 408; 44S; 1 Tidd, Pr. 696. Hardin v. Boyd, 113 U. S. 756, 5 Sup. Ct 771, 2S L. Ed1141. Any writing made or proposed as an improvement of some principal writing. In legislation. A modification or alteration proposed to be made in a bill on its passage, or an enacted law; also such modification or change when made. Brake v. Callison (C. C.)122 Fed. 722.”

From the above, it can be said that the impugned provisions intended to amend Article 8(2) of the 1992 Constitution because the impugned provisions sought to add to the list as provided in Article 8(2) of the Constitution, 1992. In fact, the issue of section 16(2) of Act 591 amending Article 8(2) of the 1992 Constitution is not alien to our legal jurisprudence. In the concurring opinion of Sophia A.B Akuffo JSC (as she then was) in the case of PROFESSOR STEPHEN KWAKU ASARE V THE ATTORNEY-GENERAL, the Learned Justice held as follows;

“In my view, these clear, specific, and basic requirements for a valid amendment of the Constitution were not complied with in the enactment of Section 16(2) of Act 591. The long title of the Act reads as follows: -

“An Act to consolidate with amendments the law relating to citizenship of Ghana, to state in respect of citizenship by birth the legal conditions applicable at the given points in time, to bring the law in conformity with the Constitution as amended and to provide for related matters.”

The declared purpose of the Act, to my understanding, is therefore that it was being enacted to consolidate and bring into pursuant effect the amended provisions of the Constitution. It was not declared to be, itself, a constitutional amendment act. Thus its sole purpose was not to amend the Constitution, and as far as the Ghanaian public is formally aware, there has been only one amendment of article 8(2) of the Constitution, and the terms of that amendment are those set out in Act 527. Yet it is clear that section 16(2) has purported to amend and alter the provisions of Article 8(2). These amendments added to the list of offices that may not be held by persons holding dual citizenship. Additionally, and of even greater concern, they also weakened the process integrity originally envisaged by the Constitutional Amendment Act, by passing downward to the Minister the power to further add to the list of prohibited offices by legislative instrument. The power thus conferred on the Minister is quite excessive, in my view. Thus, whereas the Constitution stipulates more stringent measures and processes at higher levels for the amendment of its provisions, under the Citizenship Act, an even greater number of persons with dual citizenship may be disqualified by way of a mere legislative instrument issued by a Minister, thereby by-passing the checks mounted by the Constitution, in Articles 291 and 292.”

It can therefore be concluded that section 16(2) of Act 591 to some extent sought to amend Article 8(2) of the 1992 Constitution.

It is the wrong procedure adopted by Parliament in adding to the list in Article 8(2) of the 1992 Constitution that led the Supreme Court to conclude that the impugned provisions violated Article 289(2) of the 1992 Constitution.

What does Article 289 say and what is the right procedure in amending a constitutional provision?

It is at this juncture that I would put on both my parliamentary and lawyerly caps to explain the procedure for amending a constitutional provision such as Article 8(2) of the 192 Constitution.

 

AMENDMENT OF THE CONSTITUTION

The framers of the Constitution designated a whole chapter in the 1992 Constitution to regulate the procedure for amending a constitutional provision. Article 289 of the Constitution, 1992 provides as follows;

“(1) Subject to the provisions of this Constitution, Parliament may, by an Act of Parliament, amend any provision of this Constitution.

(2) This Constitution shall not be amended by an Act of Parliament or altered whether directly or indirectly unless -

(a) the sole purpose of the Act is to amend this Constitution; and

(b) the Act has been passed in accordance with this Chapter.”

The Constitution clearly stipulates that where an Act seeks to amend a constitutional provision whether directly or indirectly, the mandatory procedure for amendment as stipulated in chapter 25 of the Constitution, 1992 must be followed religiously.

Generally, for the purposes of amendment, the Constitution is divided into entrenched and non-entrenched provisions. The entrenched provisions as stipulated in Article 290(1) of the 1992 Constitution have a relatively stringent process of amendment. Considering Article 290(1) of the 1992 Constitution, one would realize that Article 8 is not stated therein which means that Article 8 is a non-entrenched provision. The processes for amending a non-entrenched provision arestated in Articles 291 and 292(a) of the 1992 Constitution. The procedure is as follows;

a. The bill to amend the non-entrenched provision has to be published twice in the Gazette with the second publication being made at least three months after the first; and
b. At least ten days must pass after the second publication.
c. The Speaker shall, after the first reading of the bill in Parliament, refer it to the Council of State for consideration and advice and the Council of State shall render advice on the bill within thirty days after receiving it.
d. Where Parliament approves the bill, it may only be presented to the President for this assent if it was approved at the second and third readings of it in Parliament by the votes of at least two-thirds of all the members of Parliament.
e. Where the bill has been passed in accordance with this article, the President shall assent to it.
f. Before the President signs the bill that seeks to amend the non-entrenched constitutional provision, the President will only sign when the bill is accompanied by a certificate from the Speaker that the provisions of this Constitution have been complied with in relation to it. 
Clearly, Parliament in enacting section 16(2) of Act 591 did not follow this mandatory procedure as enumerated above and it was pursuant to the failure of Parliament to follow this mandatory procedure that warranted the Supreme Court to exercise the principle and/or power of severability of impugned legislations when the Plaintiff, Francis Osei-Bonsu invoked itsexclusive original jurisdiction. In CENTER FOR JUVENILE DELINQUENCY V GHANA REVENUE AUTHORITY AND THE ATTORNEY-GENERAL, the Supreme Court unanimously speaking through Adinyira (Mrs.) JSC held as follows;

“Two cardinal principles guiding the judicial review of legislation is firstly, the presumption that every enactment by the legislator is presumed to be valid or constitutional until the contrary is proven and secondly the principle of severability of impugned legislation; that is the power of this Court to strike down offending parts of legislation leaving the other part unaffected.”

Obviously, this is not the first time the Supreme Court has exercised this power and/or principle. The effect of the Supreme Court exercising this principle of severability is that the impugned legislations do not form part of the laws of Ghana from the moment they are struck down as unconstitutional.

Essentially, sections 16(2) (a), (h), (i) (j), (k), and (l) of the Citizenship Act, 2000 (Act 591) are no longer part of the laws of Ghana as they have been declared unconstitutional.


CONCLUSION

The Supreme Court by arriving at its decision on the 24th day of April 2024 sought to uphold the supremacy of the Constitution which is entrenched in Article 1(2) of the 1992 Constitution. The decision was purely based on the fact that in enacting the impugned legislation, a mandatory constitutional provision was not followed and the decision had nothing to do with downplaying the importance of the legislative arm of government in nation-building. Analogous to what the good book states in Jeremiah 10:24, the Supreme Court ought to correct the wrongs committed by Parliament with a view of achieving justice and upholding the supremacy of the Constitution, 1992.

It is my strong assertion that if Parliament had followed the mandatory procedure in enacting the impugned provisions which sought to amend Article 8(2) of the 1992 Constitution, irrespective of Parliament’s intention and/or rationale in excluding those offices from being occupied by dual citizens, the Supreme Court would not have intervened.

Author:

Vincent Ekow Assafuah (Esq)                                  

Member of Parliament (Old Tafo)                          

Deputy Minister Designate, Local Government, Rural Development and Decentralization

source: Vincent Ekow Assafuah (Esq)