Considering the sensitivity of this piece, as a result of the subject matter on which it rests, it is imperative to note at the outset that in an earlier article titled “CONTEMPT OF COURT AND CRITICISM OF A COURT’S DECISION: WHERE MUST THE LINE BE DRAWN?” I sought to examine the soundness and sometimes necessity of criticizing decisions of courts. It is in that sense therefore that I am putting together this little piece to examine the recent decision of the apex court in light of the state of the law on citizenship and other relevant areas of law that this case hinges on. In brief, this article is not tainted with any political idiosyncrasies or some other sentimental bosh of the sort. It is, on the contrary, necessitated by the fact that the decision of the court has the tendency of eroding the essence of certain fundamental legal concepts, and may eventually drive our legal system into perpetual doom, even if through a subtle and piecemeal way.

Proceeding therefrom, mention ought to be made of the celebrated case of Shalabi v. The Attorney General [1972] 1 GLR 259-270 wherein Hayfrom-Benjamin J (as he then was) quoted with approval an excerpt from the dissenting opinion of Warren C.J in the American case of Perez v. Brownell 356 U.S. 44 (1958) as follows:

Citizenship is man’s basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. He has no lawful claim to protection from any nation, and no nation may assert rights on his behalf. His very existence is at the sufferance of the state within whose borders he happens to be. In this country the expatriate would presumably enjoy, at most, only the limited rights and privileges of aliens, and like the alien he might even be subject to deportation and thereby deprived of the right to assert any rights. This government was not entrusted with power to decree this fate.

The people who created this government endowed it with broad powers. They created a sovereign state with power to function as a sovereignty. But the citizens themselves are sovereign, and their citizenship is not subject to the general powers of their government. Whatever may be the scope of its powers to regulate the conduct and affairs of all persons within its jurisdiction, a government of the people cannot take away their citizenship simply because one branch of that government can be said to have a conceivably rational basis for wanting to do so.”

The concept of citizenship, so widely misunderstood and misinterpreted, is a fundamental norm of every nation. In the Ghanaian situation, our citizenship laws are overly complex that one cannot readily say who a citizen is. Determining who can be said to be a citizen is usually the fruit of a studious and painstaking legal enquiry. Even the finest and most refined of legal brains cannot simplify the dynamics of our citizenship law, or at least there has not as yet been any success in so doing. Yet, the law on citizenship is as delicate and fragile as an egg, and ought to be guarded jealously. Accordingly, to deny a person of his citizenship has the effect of denying him his very existence and sense of belonging to an internationally recognized community, the state. As such, in interpreting and applying our citizenship laws, an onerous and painstaking task is placed on the courts to as much as possible not deny a citizen of what is duly his, but rather advance his right to assert rights and insulate it from the control of any dubious person or institution.

In the impugned consolidated cases of National Democratic Congress v. Attorney General and Electoral Commission and Mark Takyi-Banson v. Attorney General and Electoral Commission, the court made a very thought provoking remark which has since been the subject of debate among many people, lawyers and non-lawyers alike.

In the first case, the National Democratic Congress (NDC) invoked the original and exclusive jurisdiction of the Supreme Court challenging the non-inclusion of the old voter identification cards by the Electoral Commission in its compilation of a new register ahead of the 2020 elections. The plaintiff in the second suit went to court seeking for the inclusion of the birth certificate in the voter registration process. The court therefore thought it wise to consolidate these suits, since the reliefs sought were similar in substantial degree.

By a unanimous decision, the court rejected the claims of the two plaintiffs. Of particular interest for purposes of this particular discourse is the ruling of the court in respect of the non-inclusion of the birth certificate in the registration process. In graphic terms, Prof. Nii Ashie Kotey JSC, in delivering the unanimous judgment of the court stated at page 27 of his judgment thus:

A birth certificate is not a form of identification. It does not establish the identity of the bearer. Nor does it link the holder with the information on the certificate. Quite obviously, it provides no evidence of citizenship. In fact, as a form of identification, it is far worse than the NHI card which was held to be unconstitutional as evidence of identification of a person who applies for registration as a voter” in the Abu Ramadan cases.

I have serious misgivings with respect to this remark. Looking at this issue, having removed all political lenses, one would see that if the court had ended with the reasoning that the birth certificate does not link the bearer with the information on it and cannot be relied on for purposes of the voter registration, much as I would disagree with such a position for the reasons embodied in this article, it would have been a sounder postulation than an emphatic statement that a birth certificate “provides no evidence of citizenship.” This postulation begs the nagging question of what provides evidence of citizenship.

Before I revert to deal with this issue, it is worthy of note that by the consolidated effect of Article 1(1) and Article 125(1) of the 1992 Constitution, justice emanates from the sovereign people of Ghana, for whose welfare the judiciary is enjoined to act. The judgment of the court in respect of citizenship and the birth certificate throws one into unutterable confusion. In my culture, when one is rejected by his paternal people, he runs to his maternal community to be salvaged. The decision of the Supreme Court, analogically, presents an absurd situation where one is rejected first by his maternal people. What then becomes one’s fate in a case where he is rejected by his paternal community?

Ordinarily, the first point of recourse by any person aggrieved by a decision of any body or person that is adverse to his fundamental human rights, including the right to have rights – citizenship – would be to match towards the majestic shores of the courtroom for redress. Surprisingly, and much more sadly, the courts are rather the first to deny citizens of their most basic of rights. The courtroom appears no more to be a safe haven for victims of abuse. What a sad reflection on our constitutional jurisprudence!

Reverting to the crux of the issue at hand, it is an undeniable fact that deeply etched in the corpus and inner core of the law of evidence in almost every legal system is the interplay of a myriad of legal presumptions, arguably inexhaustible to enumerate. I am not an expert in the law of evidence, and I do not purport to be one. But in view of the above, it is necessary to consider briefly what a presumption is as far as the law of evidence is concerned.

A cursory look at the available literature on the subject of legal presumptions reveals that legal scholars have held each other in a constant and never-ending intellectual captivity in an attempt to unravel the meaning of the legal term presumption and the scope of its application. However, there is no clear consensus as to what exactly a presumption properly so called is. Nevertheless, the authors, jurists, lawyers and judges are almost congruent in accepting that a presumption is something, the truth or veracity of which is accepted, until any evidence proves the contrary.

That said, recourse will be had to some attempted definitions of a presumption. The eighth edition of the Black’s Law Dictionary explains a presumption at page 3754 as:

“A legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts. Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption.”

In the book Phipson & Elliott Manual of the Law of Evidence, the authors define a presumption “as a conclusion, which may or must be drawn in the absence of contrary evidence.”

In view of the above, the fundamental question that one is entitled to ask can be framed thus: Did the court avert its mind to the law on presumptions before coming to that conclusion? With the greatest of respect to the learned Justices of the apex court of the land, like a stray goat in search of shelter in a heavy, stormy and tumultuous rainfall, the judgment of the court runs in search of a substantive legal justification. Thus far, a perusal of the legal authorities reveals that none can be found! In brief, the judgment is legally flawed.

On the issue of linking the holder of the birth certificate with the information on it, it would not be far-fetched to presume reasonably that prima facie, whoever is the holder of a birth certificate is the one whose details are on the certificate. Take note that this is a mere rebuttable presumption. Thus, if anyone has a reason to believe that the holder of it is not indeed the owner of the certificate, then that person assumes the onerous task of rebutting it by supporting his claim with evidence. Perhaps the court in coming to its conclusion on the matter was moved by the fact that there is no photograph of the owner of the certificate thereon. They therefore ruled in favour of the Passport and the Ghana Card which easily ‘establish’ the identity of the bearer.

At first sight, one would think that this position is unimpeachable. Nonetheless, this contention does not altogether eliminate all possibilities of impersonation. People look alike in photographs. We have twins and other siblings who are not easily distinguishable, even in reality. If it becomes wholly uneasy to distinguish between two people in person because of their resemblance, is it easier then to distinguish them in their photographs? Of course not!

Therefore, in much the same way that people can impersonate others using the birth certificate, it is equally possible to impersonate a person, using his Passport or Ghana Card. This is the obvious result of the imperfection of every system, and the court should not be oblivious of this glaring reality. The court therefore ought to have given all bearers of the birth certificate the benefit of the doubt that they are indeed the true owners of them, until any evidence is adduced to the contrary.

On the issue of fraud, it is possible also to acquire a birth certificate fraudulently. Nevertheless, anyone who alleges that a person’s birth certificate was fraudulently acquired should adduce evidence to that effect to rebut the presumption of regularity of the birth certificate. Without any evidence to the contrary, every birth certificate should be deemed to be regularly acquired.

Of greater concern is the issue about the birth certificate and citizenship. The court appeared to have misapprehended its own ruling in the Abu Ramadan cases. The court rejected the National Health Insurance (NHI) card in the Abu Ramadan cases because it failed to meet the citizenship test, as it does not disclose the nationality of the person identified with it. There is no mention of nationality on the NHI card, whereas it is necessary that to be identified as a citizen one’s nationality must be revealed by the document that one relies on to assert his citizenship.

In sharp contrast, the birth certificate contains overwhelming evidences which prove the nationality of the bearer of it. The citizenship of a person, especially that acquired by birth, is dependent to an incalculably large extent on the citizenship of at least one of his parents or grandparents as can be gleaned from Article 6(2) of the Constitution, 1992, and the relevant sections of the Citizenship Act, 2000 (Act 591).

Now, the nationality of the parents of a person is clearly indicated in the birth certificate. What else is needed to establish one’s citizenship if already it is clear on the birth certificate that one’s parents are or at least one of them is Ghanaian(s)? That is a question to which no answer can be found in the judgment of the court, perhaps because none exists.

Quite obviously, the decision of the Supreme Court and the available legal literature cannot be reconciled. The decision of the court vis-à-vis the law are “poles apart”, and cannot “jostle with each other in jocund camaraderie”, to use Francois JSC’s phrase in the case of New Patriotic Party v. Attorney General [1993-94] 2 GLR 35—192 (31st December Case).

The aftermath of the decision in the NDC and Mark Takyi-Banson cases was not without stiff criticisms. Following the heavy criticisms leveled against the Supreme Court after its ruling in these consolidated cases, one would have thought that the review application by the NDC presented a momentous occasion for the court to throw more light on the issue and set the records straight as far as concerns the relationship between citizenship and the birth certificate. Pathetically, the review application was dismissed by the court.

In conclusion, for the reasons established above, a clarion call is made on the Supreme Court to consider departing from the position it took in these consolidated cases whenever the opportunity presents itself, as it is the only court in the structure of the judiciary that can depart from its previous decisions. Failure to do this will produce very absurd and foreseeable constitutional consequences, which must not be allowed to find their way into our legal system.