Francis Osei Bonsu v Attorney General Tlp Sc 2024 145

TLP/SC/2024/145
FRANCIS OSEI-BONSU
[PLAINTIFF]
ATTORNEY GENERAL
[DEFENDANT]
SUIT NO. J1/18/2023 24th APRIL, 2024

__________________________________________________________________
CORAM
SACKEY TORKORNOO J.S.C., (PRESIDING), PWAMANG J.S.C., OWUSU
J.S.C., KULENDI J.S.C., ACKAH-YENSU J.S.C., KOOMSON J.S.C., GAEWU
J.S.C.
COUNSEL
BRIGHT OKYERE-ADJEKUM ESQ. for the plaintiff with him, HENRIETTA
KONADU OWUSU DAPAAH.
GODFRED YEBOAH DAME (Attorney General) for the defendant with him,
DIANA ASONABA DAPAAH (Deputy Attorney General), CLARENCE
KUWORNU (Chief State Attorney) , PATRICIA DANSO ABBEAM (Principal State
Attorney) & GEORGINA MENSAH BONSU (Principal State Attorney).
JUDGMENT
KULENDI JSC:
thelawplatform.online The Law Platform @DeLaw_Platform the_law_platform @thelawplatform

TLP/SC/2024/145
1. The Plaintiff, a legal practitioner and a citizen of Ghana, on the 10 th of
July, 2023 invoked our original jurisdiction pursuant to Article 2(1) of
the Constitution praying for the following reliefs:
i. A Declaration that Section 16(2)(a) of the Citizenship Act, 2000 (Act
591), is null and void on account of having been passed in a manner that
is inconsistent with and in contravention of Article 289(2) of the 1992
Constitution.
ii. A Declaration that Section 16(2)(h)-(l) of the Citizenship Act, 2000 (Act 591),
are null and void on account of having been passed in a manner that is
inconsistent with and in contravention of Article 289(2) of the 1992
Constitution.
iii. An Order striking down Section 16(2)(a) and (h)-(l) of the Citizenship Act,
as being unconstitutional.
iv. Any further Orders and/or Directions as the Court may deem fit.
2. In a statement of case filed on the 12th of July, 2023, the Plaintiff argues
that the original formulation in the Constitution rendered the holding
of dual citizenship by individuals 21 years and older, unconstitutional
unless the said status was procured by reason of marriage.
The said provision, which was captured under Article 8 provided as
follows:

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“(1) 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.
(2) A person who becomes a citizen of Ghana by registration and immediately
after the day on which he becomes a citizen of Ghana is also a citizen of some
other country, shall cease to be a citizen of Ghana unless he has renounced his
citizenship of that other country, taken the oath of allegiance specified in the
Second Schedule to this Constitution and made and registered such
declaration of his intentions concerning residence as may be prescribed by law,
or unless he has obtained an extension of time for taking those steps and the
extended period has not expired.
(3) A Ghanaian citizen who loses his Ghanaian citizenship as a result of the
acquisition or possession of the citizenship of a country other than Ghana
shall, on the renunciation of his citizenship of that other country, become a
citizen of Ghana.
(4) Where the law of a country, other than Ghana, requires a person who
marries a citizen of that country to renounce the citizenship of his own
country by virtue of that marriage, a citizen of Ghana who is deprived of his
citizenship of Ghana by virtue of that marriage shall, on the dissolution of that

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marriage, if he thereby loses his citizenship acquired by that marriage, become
a citizen of Ghana.”
3. This position was however subsequently amended by the
Constitution of the Republic of Ghana (Amendment) Act, 1996 (Act
527) which reversed the general prohibition of dual-citizenship, with
the caveat however, that such holders of dual citizenship were not
allowed to occupy certain public offices which were enumerated
within the said Act.
Section 1 of the said Act provided as follows:
1. Article 8 of the Constitution is repealed and the following
inserted-
8. (1) A citizen of Ghana may hold the citizenship of any other country in
addition to his citizenship of Ghana.
(2) Without 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-
(a) Ambassador or High Commissioner;
(b) Secretary to the Cabinet;

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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.”
4. The Plaintiff submits that the passage of Act 527 above, was consistent
with the procedures stipulated under Articles 289 and 291 and
therefore, validly amended the initial terms of the constitution, to
usher in a new dispensation under which Ghanaians could validly
hold dual citizenship. This shift in the constitutional position was
however subject to the condition that such holders of dual citizenship
were ineligible to occupy the offices specified in Article 8(2) above.
5. The Plaintiff however contends that the Citizenship Act, 2000 (Act
591) which received presidential assent on the 19 th of December, 2000,
in section 16(2)(a) and 16(2)(h)-(l) purported to replace Article 8 of the
Constitution, by amending or altering the list of offices that dual
citizens could not legally hold.
The impugned section states 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

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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.”
6. The Plaintiff submits that the addition of seven other offices to the list
of offices set out by Article 8(2) of the Constitution amounts to an
alteration or amendment of the Constitution. This is because, in the
Plaintiff’s estimation, the list of offices under section 16(2) of Act 591,
which dual citizens cannot occupy, are more than those stipulated in

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Article 8 of the Constitution. Plaintiff contends this is more so because
the list of prohibited public offices contemplated by the framers of the
Constitution under Article 8 is exhaustive and therefore admits of no
additions except in the manner prescribed by Article 289 and 291 of
the Constitution. Therefore, any addition to this list of public offices,
to which dual citizens are ineligible, in a manner that does not accord
with the amendment procedure stipulated in Articles 289 and 291
aforesaid, constituted an alteration to the constitutional scope which
had been defined by Article 8(2) and therefore was inconsistent with
and in contravention of the Constitution.
7. The Plaintiff anchors his claim on the express text of Article 289 which
provides that:
“ 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.”
8. On the basis of this provision, the Plaintiff argues that, firstly, Act 591
was not promulgated for the sole purpose of amending the
Constitution and secondly, Act 591 was not passed in accordance with

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Chapter 25 in general and in article 291 in particular. Plaintiff
concludes that notwithstanding the failure of Parliament to abide the
terms of Articles 289 and 291, the terms and effect of section 16(2) is to
directly alter Article 8(2). Consequently, the said additions and
alterations obviously sins against the clear intent, language and
meaning of Article 289 and is for that reason, null and void in terms of
Article 1(2) of the Constitution.
9. The Plaintiff further contends that the effect of section 16(2) of the
Citizenship Act, 2000 (Act 591) is that it imposes an additional
‘qualification criterion’ which can only validly be prescribed by the
Constitution. He argues that the additional offices introduced by
section 16(2) are not included in the offices listed in Article 8 of the
Constitution. Therefore, unless the Constitution is expressly amended
by recourse to the procedure prescribed in Chapter to include these
offices, any Act of Parliament which purports to impose a ‘non dual-
citizenship’ qualification clause on the holder of a public office other
than the offices specified in Article 8, contravenes the Constitution and
is inconsistent with the express terms of Articles 289 and 291 and for
that matter, null and void.
10. The Plaintiff further argues that quite apart from adding to the list of
offices which dual-citizens are disqualified from holding, the said

TLP/SC/2024/145
section 16(2)(a) of Act 591, has the effect of amending the
constitutionally prescribed qualification for Justices of the Supreme
Court under Article 128(4).
Article 128(4) of the Constitution provides that:
“A person shall not be qualified for appointment as a Justice of the Supreme
Court unless he is of high moral character and proven integrity and is of not
less than fifteen years' standing as a lawyer.”
11. The Plaintiff argues that the criteria set out in the above provision
constitutes the full and final qualification criteria that any Justice of the
Supreme Court can constitutionally be subjected to, and therefore, an
Act of Parliament enacted in a manner that does not conform with the
requirements of Articles 289 and 291 and yet, has the effect of directly
or indirectly altering or amending the qualification criteria amounts to
an unconstitutional amendment.
12. The Plaintiff submits that it is immaterial whether or not the alteration
occasioned by the Act was a direct or tangential amendment of the
Constitution. According to the Plaintiff, as long as the effect of the
provisions of the Act was either a direct or indirect amendment of the
Constitution, then same ought to have been enacted pursuant to the
process spelt out in Article 291, which pertained to the amendment of
non-entrenched provisions in the Constitution.

TLP/SC/2024/145
13. An apt summary of the Plaintiff's case can be found at paragraph 16
of his statement of case where he contends thus:
“It is the plaintiff’s case that section 16(2)(a) and (h)-(l) of the Citizenship
Act was not passed in accordance with Chapter 25 of the Constitution.
Accordingly, to the extent that section 16(2)(a) and (h)-(l) of the Citizenship
Act purports to “amend or alter” whether directly or indirectly” the
Constitution, it is null and void.’
14. In an uncommon but impressive and for that matter commendable
turn of events, the Attorney General and Minister of Justice, principal
legal advisor to Government, filed a statement of case on the 26 th of
July, 2023, where “in the spirit of intellectual honesty” and after
“careful consideration”, he expressed his substantial support for the
views and positions canvassed by the Plaintiff.
15. While underlying the fundamentality and materiality of citizenship,
the Attorney General argued that the phrasing adopted even in the
amended Article 8(2), lent credence to the view that the list of offices
set out thereunder, were exhaustive and could only be augmented
upon an amendment of the Constitution in accordance with the

procedure prescribed for such an amendment of the Constitution.
Article 8(2) of Constitution provides as follows:
10

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“Without 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 … ”
16. According to the Attorney General this close ended phrasing gave rise
to a mutatis mutandis application of the “expressio unius” principle,
as it pertained to the list of offices enumerated under the said Clause.
Against this backdrop, the Attorney General submits that an addition
to the list of offices which dual citizens cannot occupy amounts to an
amendment of the Constitution and therefore ought to be carried out
pursuant to Article 289 and 291.
17. The Attorney General argues that his ideological asymmetry with the
Plaintiff stems from an understanding of the fact that since, in his view,
all major incidents of citizenship are provided for in the Constitution
itself, the imposition of a limitation to this sacred right ought to find
expression in the Constitution as well.
18. Furthermore, the Attorney General urged on this Court, the view that
a purposive interpretation of the entirety of Chapter Three of the
Constitution, which deals exclusively with citizenship, would reveal
that the framers intended to limit legislative interference and
11

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opportunity for alteration in issues that pertained to the subject of
citizenship. Consequently, he contends that it would be contrary to
the spirit of the Constitution to find that the legislature was given a
free hand to determine the scope of a person’s citizenship right and its
incidents and limitations.
19. Flowing from this, the Attorney General rehashes the Plaintiff’s view
on the fact that the failure of the legislature to submit Act 591 to the
constitutional prescriptions of Article 289 and 291, renders the
alterations in sections 16(2)(a) and 16(h)-(l) a flagrant violation of the
Constitution and consequently, void.
JURISDICTION:
20. In the case of Bimpong Buta v. General Legal Council [2003-2004]
SCGLR 1200, at page 1215, Her Ladyship Akuffo JSC (as she then was)
underscored the primacy of the question of jurisdiction in the
following words :
“Jurisdiction is always a fundamental issue in every matter that comes before
any court and, even if it is not questioned by any of the parties, it is crucial
for a court to advert its mind to it to assure a valid outcome...”
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21. It is trite learning that parties cannot by agreement or acquiescence,
confer jurisdiction on a Court where the exercise of such jurisdiction is
prohibited, or not provided for by law.
22. This principle was underscored in a judgment of this Court dated 9th
March, 2022 with Writ No.:J1/07/2022 entitled Justice Abdulai v. The
Attorney-General, which I had the privilege of authoring. In the said
case this Court held as follows:
“This preliminary exercise is anchored on the premise that parties cannot
confer jurisdiction on a court where there is none and an improper exercise of
jurisdiction, may almost always lead to the resultant decision being
susceptible to be set aside for nullity.”
23. In the Bimpong-Buta v. General Legal Council case supra, this court
per Kludze JSC said as follows:
“The intention of the framers of the Constitution 1992 is not to transform the
Supreme Court, the highest court of the land into a forum for the original
adjudication of ordinary civil disputes. It is only in cases of apparent
ambiguity or inconsistency of the provisions of 1992 Constitution that the
original jurisdiction of the Supreme Court may be invoked to interpret the
1992 Constitution”
13

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24. The salutary position of law therefore is that for the original and
exclusive jurisdiction of the Supreme Court to be properly invoked
pursuant to Article 2(1), there must be the existence of a real
interpretative or enforcement issue.
25. This Court held, on the 9th of February, 2009 in a case with Suit No.:
3/94 entitled Baafour Kwame Fante Aduamoa II And 6 Others v.
Nana Gyakorang Adu Twum II And Another that:
“ When then does a real or genuine issue of interpretation or enforcement of
a provision of the Constitution arise for determination by the Supreme Court
either in the exercise of its original jurisdiction under article 130(1)(a) or in
its reference jurisdiction under article 130(2) of the 1992 Constitution?
In Tait vrs. Ghana Airways Corporation (supra) at page 528, the court
said:“...unless the words of an article of the Constitution are imprecise and
ambiguous, an issue of interpretation does not arise, where the language of
the constitution is not only plain but admits of but one meaning, the task of
interpretation can hardly be said to arise. The mere fact that a party invokes
in support of his case, a provision of the Constitution which is couched in
plain unambiguous language, does not turn an action the true nature of which
is one of wrongful dismissal into one relating to the interpretation of a

provision of the Constitution within the meaning of article 106(1)(a)”.
14

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In the Republic vrs. Special Tribunal, ex parte Akosah (supra), the court
after examining the relevant authorities on the subject came to the conclusion
that an issue of enforcement or interpretation of a provision of the
Constitution arises in any of the following eventualities:
(a) Where the words of the provision are imprecise or unclear or ambiguous.
In other words, if one party invites the court do declare that the words of the
article have a double meaning or are obscure or else mean something different
from or more than what they say;
(b) where rival meanings have been placed by the litigants on the words of any
provision of the Constitution.
(c) Where 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 shall
prevail.
(d) Where on the face of the provisions, there is a conflict between the operation
of particular institutions set up under the constitution, and thereby raising
problems of enforcement and of interpretation.
At page 605 of the report, the court continued: “... there is no case of
enforcement or interpretation where the language of the article of the
Constitution is clear, precise and unambiguous ... Again where the
submission made relates to no more than a proper application of the provisions
15

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of the constitution to the facts in issue, this is a matter for the trial court to
deal with; and no case of interpretation arises”
In summary then, whereas the original jurisdiction to interpret and enforce
the provisions of the 1992 Constitution is vested solely in the Supreme Court,
every court and tribunal is duty-bound or vested with jurisdiction to apply
the provisions of the Constitution in the adjudication of disputes before it.
And this jurisdiction is not taken away merely by a party's reference to or
reliance on a provision of the Constitution. If the language of that provision
is clear, precise and unambiguous, no interpretation arises and the court is to
give effect to that provision.”
26. We must however be quick to point out that no court, save the
Supreme Court, has the power to strike down an Act of Parliament on
grounds of same being inconsistent with the provisions of the
Constitution. Therefore, where a Plaintiff, such as in this instance,
alleges that an Act is inconsistent with the provisions of the
Constitution, and thereby invokes the Court’s jurisdiction to have the
said inconsistent portions struck down, then this Court ought to
investigate the basis of the claim to ascertain the viability of the
Plaintiff’s action within the framework of this Court’s exclusive
original jurisdiction.
16

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27. This position accords with our reasoning in the case of Sumaila
Beilbeil v. Adamu Dramani, where this Court, speaking through
Gbadegbe JSC. said as follows:
“The provision in article 130(1) is concerned with the enforcement
jurisdiction of the Supreme Court in relation to the High court’s enforcement
jurisdiction in cases of alleged violation of fundamental human rights. A
careful reading of article 130(1) reveals that the word “and” is used in respect
of the two special or exclusive jurisdictions of the Supreme Court that are not
available to the High Court and is not intended to mean that for this Court to
have jurisdiction in cases of enforcement, the question for decision must also
involve the question whether an enactment was made in excess of the powers
conferred on Parliament or any other person by law or under this
Constitution. A contrary interpretation of article 130(1) would render article
2(1) of the Constitution superfluous.
In my opinion the jurisdiction conferred on the court in making declarations
under article 130(.1) coupled with the ancillary power conferred on it under
article 2(2) to “make such orders and give such directions as it may consider
appropriate for giving effect, or enabling effect to be given, to the declaration
so made” is an effective tool in ensuring and or compelling observance of the
constitution. These provisions require us to measure acts of the legislative and

executive branches against the constitution and where there is a violation to
declare such acts unconstitutional provided the act in question does not come
17

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within the designation of a “political question”. It is worthy of note that article
2(1) confers the right to seek a declaration that an act or omission of any
person is inconsistent with or in contravention of a provision of the
constitution while article 130(1) provides the means by which a person may
exercise the right conferred on him to seek relief in cases where provisions of
the constitution have been breached. The special jurisdiction that this Court
exercises in such cases is described by the constitution as original in
contradistinction to the appellate or supervisory jurisdiction. I think articles
2(1) and 130(1) confer on us the jurisdiction of judicial review although there
are no specific words in the constitution to that effect”
28. In applying these principles, we find that the pith of the Plaintiff’s case
is that Section 16(2)(a) and (h)-(l) of the Citizenship Act, 2000 (Act 591)
is unconstitutional as it amends Article 8(2) of the Constitution and
yet, this amendment was not effected in a manner consistent with the
strict provisions of Article 289 and 291.
29. Article 289 speaks to the fact that an Act of Parliament would be
incompetent to amend a provision of the Constitution unless the said
Act is passed according to the process stipulated under Articles 290,
291 and 292. Therefore, the Plaintiff first calls on this Court to examine
the terms of the section 16(2) of Act 591 to ascertain whether or not it
“directly or indirectly” amends the terms of the Constitution. In this
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sense, the Plaintiff brings into the foray Article 8(2) of the Constitution
and argues that portions of section 16(2) of the Citizenship Act, 2000
(Act 591) directly amends the clear and express terms of the
Constitution by adding to the list of offices designated by Article 8(2)
which cannot be occupied by persons with dual citizenship.
30. Should the above enquiry elicit an affirmative response from this
Court, the Plaintiff invites us to then assess whether or not this
amendment, which is encapsulated within the terms of Section 16(2)(a)
and 16(2)(h) – (l), was passed in accordance with the amendment
processes stipulated under Articles 289 and 291. It is on the basis of the
foregoing, that we hereby find that our jurisdiction is properly
invoked.
31. On the 14th of November, 2023, this Court directed both Parties to file
a submission in response to the following enquiry:
“Whether or not Parliament can by statute expand indications of class of
rights and obligations given by the Constitution or when the Constitution
creates a class of rights and obligations they are to be considered fully
exhaustive such that Parliament cannot by its legislative

function expand on same.”
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32. While the Plaintiff’s submission offered a little assistance in distilling
and resolving the thorny legal issue in contention, the submissions by
the Attorney General offered more perspective on the issue at hand.
33. On the back of a long list of authorities, the Plaintiff concluded on the
point as follows:
“In conclusion my Lords, we submit that Parliament can by statute expand
the class of rights and obligations as given by the Constitution because the
Constitution vests legislative power in Parliament. However, Article 93(2) of
the Constitution provides that Parliament’s legislative power is “subject to
the provisions of this Constitution and shall be exercised in accordance with
this Constitution”. Where Parliament exercises its legislative power in a
manner not in accordance with the Constitution, as in the instant case, the
resulting legislation is unconstitutional void and we pray your Lordships so
to find.”
34. In his written submissions in answer to the question posed by this
Court, the Attorney General submitted, from paragraph 6 of his
statement of case as follows:
‘Where the Constitution, in addition to the procedure by which appointments
may be made to certain offices, specifically (and deliberately) limits the
holding of the offices to persons who are qualified to be elected as members of
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Parliament. It is submitted that in such situations, by necessary implication,
such persons cannot or must not be dual citizens.
Where the Constitution, in addition to the procedure by which appointments
may be made to certain offices, states the qualifications to those offices but does
not require the holders of such offices to be persons who are qualified to be
elected as members of Parliament. By necessary implication, there is no
requirement for such persons to be dual citizens under the Constitution. A
holder of such an office will have no constitutional impediment in terms of his
status as a dual citizen or not.
Where the Constitution does not state qualifications to certain offices created
by the Constitution but only states the procedure by which the holders of the
offices shall be appointed. In such cases, it is our respectful submission that
Parliament has power to, by legislation, prescribe qualifications for the
holding of such offices.’
35. At paragraph 12, the Attorney General then submits thus:
“Whilst agreeing that Parliament may "expand the indications of class of
rights and obligations given by the Constitution", any resolution, decision or
enactment by Parliament must be consistent with the Constitution. A
demonstration of unconstitutionality with any decision or enactment of
Parliament renders such decision or enactment liable to be struck down by
this Court in exercise of its judicial review powers under article 2 of the
Constitution. In our submission, sections 16(2)(a),(h),(i), (j),(k) and (l) of Act
21

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591 imposed a burden or obligation on a citizen by requiring that he ought
not be the holder of dual citizenship before he can be appointed to the offices
specified therein. This obligation was not in the Constitution and in fact
violated the minimum standards set by the Constitution for such offices. It is
submitted that Parliament has no power to impose further obligations on the
citizenry in situations where the Constitution specifically addressed a subject
matter and imposed no such obligation. To permit same to stand on our
statute books will amount to endorsing a clear excess or abuse of Parliament's
legislative powers.”
36. While commending the display of ‘intellectual honesty’ on the part of
the Attorney General, we must yet emphasize that in considering the
matter before a Court, the mere fact of agreement between the parties
as to the position of law does not abrogate the Court's solemn duty to
diligently interpret and apply the law, particularly in matters
implicating an interpretation or enforcement of constitutional
provisions.
37. Therefore, while the convergence of views between the parties may
streamline the proceedings, it does not relieve this Court of its
obligation to meticulously examine the legal issues at hand and
scrutinize the relevant statutes and constitutional provisions. The
judiciary's sacred and sworn duty is not merely to ratify agreements
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between litigants but to uphold the rule of law and ensure justice not
only for the parties involved but also for society as a whole. Therefore,
this Court remains steadfast in its commitment to impartially assess
the legal merits of the case and render a just and equitable decision in
accordance with the provisions of the Constitution.
38. Both parties before the Court have made copious reference to the case
of Professor Stephen Asare v. Attorney-General [2012] 1 SCGLR 460
where this Court was faced with the determination of the related issue
of whether or not the prohibition in in section 1(2) of the Constitution
of the Republic of Ghana (Amendment) Act, 1996 (Act 527) and by
extension section 16(2) of Citizenship Act, 2000 (Act 591), proscribing
dual citizens from holding certain offices was inconsistent with
Articles 15 and 17 of the Constitution.
39. In the said case, this Court resolved the above in the negative, but
struck down as unconstitutional, section 16(2)(m) of Act 591, which
invested the Minister of Interior with the authority to prescribe other
offices, by legislative instrument, which could not be occupied by dual
citizens.
40. In the said Professor Stephen Asare case however, Her Ladyship
Akuffo JSC (as she then was) expressed her premonitions, albeit obiter,
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of the seeming unconstitutionality of aspects of section 16(2). The
venerable judge said as follows:
“Citizenship (whether or not on a dual or multiple basis) of a country is a
precious right which carries with it invaluable privileges. The means by which
any of these rights and privileges may be limited are normally governed by
clear legal provisions, because such limitations derogate from the incidents of
citizenship. Thus, in the case of Ghanaians with dual citizenship, the
limitations imposed on their eligibility to hold public office are set by article
8(2) of the Constitution, as amended by the Constitution of the Republic of
Ghana (Amendment) Act, 1996 (Act 527) which provides that …
Hence, dual citizens of Ghana are prohibited, by the Constitution, from
holding these listed positions. Clause (g) however, makes it possible for this
list to be expanded by an Act of Parliament, to include other positions. Since
the Constitution sets out a certain and specific list, it follows that any
addition to the list would amount to an amendment of the
Constitution. It is for this reason that, in his Statement of Case, the
Plaintiff seeks to argue that the Act of Parliament stipulated in the
clause is one that must necessarily comply with the provisions of
Chapter Twenty-Five of the Constitution, Article 289 of which
provides that …
In my view, these clear, specific and basic requirements for a valid
amendment of the Constitution were not complied with in the
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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…
Now, every provision of the Constitution is presumed to be there for a purpose
and cannot be disregarded for the sake of convenience. Whilst it may be
arguable that the Act of Parliament referred to in article 8(2)(g) of the
Constitution (as amended by Act 591) is simply an ordinary Act of
Parliament, passed in accordance with Article 106, I am fortified in the
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position I have taken to the contrary, by the well established principle that in
the construction and interpretation of a Constitution, every provision must
be given its effect. Therefore, it must be read as whole and not as though each
provision exists in isolation, oblivious of the import of any other provisions.
Yes, an Act of Parliament to add to the list of offices is referred to in
the said clause (g). Yet article 289 also states in categorical terms that
an Act of Parliament may not amend or directly or indirectly alter the
Constitution unless certain conditions are met. Doubtlessly, in
enacting the clause, Parliament was fully aware of Article 289. Hence,
if clause (g) was intended to create an exception to the requirements of
article 289 it should have been so stated therein expressly that, in
respect of the clause, the said requirements are excepted. Clearly this
was not done and, therefore, there would be no justification for
reading any such exception into the provisions of clause (g). To hold
otherwise would be very dangerous and make a mockery of
constitutional provisions such as article 8(2), which particularise
specific matters, thereby eventually reducing the Constitution to the
status of an ordinary statute, as evidenced by what Parliament has
attempted to do in section 16(2) of Act 527.
In my humble opinion, therefore, the fact that an ordinary Act of Parliament
undergoes certain levels of scrutiny before enactment is not sufficient
justification when there is clear non-compliance with the prescribed
procedures and processes stipulated, by the same Constitution that
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empowered Parliament to alter article 8(2), for the enactment of alterations to
the Constitution. For the foregoing reasons, I am of the view that the addition
of the offices of:-
Chief Justice
Commissioner, Value Added Tax Service
Director General, Prisons Service
Chief Fire Officer
Chief Director of a Ministry and the rank of a Colonel in the Army or its
equivalent in the other security services in section 16 (2) (a), (h) – (l), to the
list of proscribed positions is unconstitutional … I would, therefore, declare
those provisions null and void.”
41. This view was endorsed by Owusu JSC. in absolute terms and our
revered sister opted to rely entirely on the sentiments expressed by
Her Ladyship Akuffo JSC.
42. In this same case, the distinguished Prof. Date Bah JSC prophetically
expressed his concern for the possible implications of Article 8(2)(g) if
a restrictive view was not taken to the powers conferred on the
legislative authority to add more offices to those already designated
under Article 8(2). The distinguished judge said as follows:
“What gives me cause for concern is the power given to Parliament under
article 8(2) to specify any office from which dual citizens will then be
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disqualified from holding. In my view, the spirit of the Constitution imposes
a limit on the legislative discretion thus conferred…”
43. With the exception of His Lordship Atuguba (then the Acting Chief
Justice) in the Professor Stephen Asare case supra, it would seem that
all other justices who averted their minds to the constitutionality of
Section 16(2) vis-a vis Article 289 came to the conclusion that the said
section altered the initial list prescribed by Article 8(2) and thereby
constituted an amendment of same. However, since these issues were
not in contention in the above case, these views were expressed as
obiter.
44. Asare’s Case should be revisited with some clarity and perspective in
mind. There are two perspectives to this: the first is the issue of
substantive constitutionalism which considers the merit of cross
reading of the then impugned statutory provisions with articles 15
(dignity) and 17(equality); and the second issue is on procedural
constitutionalism whether Parliament can add to the list of offices that
dual citizens might not occupy contrary to a declared procedure.
45. On the first issue, this Court provided an apt justification to the
proposition that section 16 does not appear in effect to be inconsistent
with the provisions of the Constitution. The Court disagreed with
Professor Asare’s contention that the imposed legal disabilities on dual
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citizens were inconsistent with the dignity and equality provisions of
the Constitution. This is where the justification of the metaphors of
“loyal citizenship” and “not serving two masters” take centre stage.
46. This rationalisation appears to be the focus of Asare’s case. That is,
there was much attention to the issue of whether we, as a Republic,
should permit dual citizens to occupy certain offices. This
preoccupation was consistent with the textual history of the
Constitution, as article 8 already provided for such exclusion. But this
was not the end because there was a crucial question as to whether we
should accept that as being consistent with our long held
constitutional values of human dignity and equality. It would appear,
as the Plaintiff argued in that case, that such exclusion creates a certain
structure of citizenship and grants a certain pre-eminence to some
hence the dignity and equality controversies.
47. In this limited context, the justification of the Court would appear to
be on those original provisions as they exist in the constitution prior to
the impugned amendments. That is, the Court did not use its
interpretive power in that case to strike down the original provisions.
The Court, in fact, deployed its interpretive powers in that case to
provide an acceptable constitutional rationalisation for the exclusion
of dual citizens from such listed offices. This was basically to
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underscore the point that the provisions on dignity and equality were
not absolute and that the legal disabilities imposed on dual citizens do
not necessarily contravene such provisions.
48. Be that as it may, the issues of procedural constitutionality implicated
by the Asare case, and which was the subject of comment by the
majority of the justices therein, was not strictly speaking, addressed.
No positive and conclusive pronouncement was made on the addition
to the original list, as contained in Article 8(2), which the Plaintiff
herein alleges were smuggled in through the back door.
49. It is this lack of definite and conclusive engagement of the said issue
of procedural constitutionalism which has provided the fertile ground
for the current invitation of the Plaintiff. It is essential to underscore
the fact that this does not amount to a review of this Court’s
rationalisation of the “lack of consistency” argument. We are of the
view that the reasoning in Asare justifying the constitutional exclusion
of dual citizens from occupying the offices listed under Article 8(2), is
sound.
50. Again, we must yet emphasize that this decision is not a bid to erode
by judicial muscle, the powers of Parliament. We are not suggesting
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that Parliament is incompetent to add to the list of offices that dual
citizens may not occupy. That power is neither bruised nor paled by
this Court. We are simply, and consistent with the relevance of
procedural constitutionalism, affirming the view that in deploying the
powers and authority of Parliament to add to such a list, Parliament is
duty bound to follow the prescriptions of the Constitution. The
wisdom of Parliament, in our view, is only relevant and legally tenable
if it is deployed in accordance with the procedure laid down in our
Constitution.
51. The concept of supremacy of the Constitution does not admit of any
exception invested in any institution or person to take away or
obliterate the Constitution and its values. The prescriptions, letter,
values, conventions, and spirit of the Constitution are carried into
effect through procedure. Therefore, procedure mandated by the
Constitution cannot be negatived by any official or institutional
conduct without recourse to the clear tenets of the Constitution. The
supremacy of the Constitution is not only entailed in the substantive
values of the constitutional provisions but also in the prescribed
procedure through which such provisions are executed or amended.
52. The free hand of Parliament to amend the Constitution is also
constrained by the prescribed procedure, and in some relevant context,
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the substance. There is no power vested in Parliament to unilaterally
ignore the procedure through which the Constitution is to be
amended. If Parliament wishes to effect an amendment to the
Constitution, it must do so in accordance with what procedure the
Constitution laid down, enshrined in Chapter 25.
53. A cursory perusal of Article 8(2) against section 16(2) of Act 591
evidently reveals that seven new offices have been added to the list of
offices originally set out under Article 8(2). The first question with
which we are therefore concerned, is whether this insertion of
additional offices to the original list encapsulated in Article 8(2)
amounts to an amendment of the Constitution?
54. It is settled and trite that in interpreting constitutional provisions, the
natural and ordinary meanings must first be accorded the said
constitutional provision. On the 8th of November 2017, in Civil Appeal
No.: J1/28/2015 intituled Mathias Kofi Boateng v Attorney General,
Lands Commission and Office of the Administrator of Stool Lands,
this Court held as follows;
“In construing a constitutional provision, and same applies to other
enactments, the objective of the court is always to discover the intention of the
framers of the Constitution. In Tuffour v. Attorney-General [1980] GLR 637
Sowah JSC (as he then was) at page 659-660 of the report gave the following
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guidelines to be followed by a court in discovering the intention of the framers
of the Constitution;"We start by reminding ourselves of the major aids to
interpretation bearing in mind the goals the Constitution intends to achieve.
Our duty is to take the words as they stand and give them their true
construction having regard to the language of the provisions of the
Constitution, always preferring the natural meaning of the words involved,
but nonetheless giving the words their appropriate construction according to
the context."
55. Accordingly, the Black’s Law Dictionary (9th Edition) defines ‘amend’
as “to change the wording of; specifically to formally alter (a statute,
constitution, motion, etc.) by striking out, inserting words or
substituting words” A mutatis mutandis application of this definition
infers that where there is an addition or deletion of words to those
originally set out in a constitutional provision, then the said
constitutional provision, to the extent of that insertion or deletion, has
been amended.
56. A perusal of section 16(2) of Act 591 shows that certain offices have
been added to the list already provided by Article 8(2) of the
Constitution as offices that cannot be occupied by persons with dual
citizenship. To that extent, section 16(2) of Act 591 has invariably
amended Article 8(2) of the Constitution and we so find.
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57. Article 289 of the Constitution is clear on the nature and procedure that
an amendment of the Constitution ought to take. For ease of reference,
we shall state Article 289 which provides that
(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.
58. Section 16(2) of Act 591 with its resultant effect of amending Article
8(2) of the Constitution therefore ought to have been passed in
accordance with the mandatory procedural requirements of amending
a constitutional provision as stipulated by Article 289 and 291 of the
Constitution.
59. We agree with the Plaintiff and the Attorney General that the effect of
section 16(2)(a), which restricts dual citizens from occupying the office
of Chief Justice and Justice of the Supreme Court, amounts to an
unconstitutional amendment of Article 128(4) as it imposes a further
qualification criteria which was not contemplated or endorsed by the
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Constitution on persons who are serving as justices of the Supreme
Court. This backdoor attempt to impose a further qualification
criterion on members of the Apex falls foul of not only the principles
of procedural constitutionalism by reason of the Acts failure to be
passed in accordance with the prescriptions of Article 289 and 291; but
also of the substantive text of the constitution as it is directly
inconsistent with the scope of the criteria set out in Article 128(4). The
qualification criteria set out in Article 128(4) is exhaustive and cannot
be arbitrarily increased or reduced by Parliamentary fiat, except in
accordance with the dictates of the Constitution.
60. In the case of Justice Abdulai v. Attorney General cited supra, I
opined as follows:
“While it would have been inappropriate for the Court to answer the third
issue if it turned purely on the procedural validity or propriety of the acts of
the Speaker and the First Deputy Speaker, we must however say that in
contexts and circumstances such as those of the present case, even though
Parliament is a master of its procedure, it cannot be overemphasized that all
the House's rules, orders, procedures and practices also have a master, the
1992 Constitution of the Republic of Ghana. Specifically, the authority of
Parliament to regulate its own procedure is expressly subject to provisions of
the Constitution as provided in Article 110(1) of the Constitution in the
following terms:
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''Subject to the provisions of this Constitution, Parliament may, by
standing orders, regulate its own procedure." (emphasis added)
Consequently, parliamentary standing orders are subservient to the
Constitution and in any case, no arm of Government or agency of the State,
including Parliament, is a law unto itself because, without exception,
everyone and everything in Ghana is subject to the Constitution. As a result,
an allegation that Parliament has acted and/or is acting in a manner that is
inconsistent with, in contravention of and/or ultra vires to the Constitution,
will render Parliament, the actions, orders, rules or procedures in issue,
amenable to the jurisdiction of this Court”
61. This statement goes to underscore the supremacy and pre-eminence
of the Constitution and its prescription in a constitutional democracy
such as ours. This underscores a critical aspect of constitutional
governance: the subordination of all government institutions and
actors, including Parliament, to the Constitution. It implies that any
action taken by Parliament, whether in the form of legislation, rules,
orders, or procedures, must align with the constitutional framework.
Any deviation from this alignment renders Parliament and its actions
susceptible to judicial review.
62. The concept of constitutional supremacy conceives the Constitution’s
ability to establish a hierarchical primacy within the sources of law. In
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that light, constitutional supremacy takes the view that the
constitution stands preeminent over all other legal norms and actors
in the legal system. Consequently, the supremacy of the constitution
also entails the subordination of the legislator.
63. It is on this very same jurisprudential footing that Article 93 of the
1992 Constitution prescribes as follows;
‘Subject to the provisions of this Constitution, the legislative power of Ghana
shall be vested in Parliament and shall be exercised in accordance with this
Constitution.’
64. From its inception therefore, the lawmaking power of Parliament, is
restrained by the limitations and structure set by the Constitution.
Cases are legion to the effect that Parliament cannot exercise its
legislative mandate in a manner that is antithetical to, inconsistent
with or at variance with the Constitution and in cases where
Parliament has, whether overtly or inadvertently strayed outside the
scope set by the Constitution, such acts have invariably been struck
down.
65. There is sound legal and philosophical basis for restricting dual
citizens from occupying certain offices, and Ghana, like many other
nations, recognizes the importance of allegiance and undivided loyalty
from its public officials to safeguard national interests. This loyalty can
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be crucially maintained by imposing restrictions on dual citizens for
holding specific offices within the country.
66. The rationale behind this policy lies in the need to prevent potential
conflicts of interest and ensure that individuals entrusted with critical
roles in governance prioritize the well-being of the nation over
personal affiliations with other countries. This restriction helps to
uphold the principle of undivided loyalty and fosters a sense of
accountability among public officials, reinforcing their commitment to
the development and progress of our country.
67. These obvious benefits notwithstanding, the Constitution's meticulous
delineation of the specific offices barred to dual citizenship holders in
Article 8(2) underscores a deliberate and exhaustive attempt by the
framers to limit this restriction to just those offices mentioned.
68. On this basis therefore, the expansion of this list by Section 16(2)(a)
and 16(2)(h-l) of the Citizenship Act, 2000 (Act 591), without recourse
to the due process of constitutional amendment prescribed in Articles
289 and 291, clearly contravened the fundamental principles of
constitutional supremacy.
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69. In the circumstances we find that section 16(2)(a) and 16(2)(h)-(l),
which constituted amendments to the Constitution ought to have been
undertaken through the prescribed channels of formal amendment as
prescribed under Articles 289 and 291. Having failed to do this, we
exercise our authority under Article 2(2) of the 1992 Constitution to
strike down the said sections as being unconstitutional. Accordingly
sections 16(2)(a) and 16(2)(h)-(l) of the Citizenship Act, 2000 (Act 591)
are hereby struck down as unconstitutional, same being inconsistent
with and contravention of Article 289 and 291 of the Constitution.
70. It is for the foregoing reasons that we issued our final orders above on
Wednesday, 24th April 2024 and reserved this full judgment to be filed
on or before the 29th day of April 2024.
E. YONNY KULENDI
(JUSTICE OF THE SUPREME COURT)
M. OWUSU (MS.)
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B. F. ACKAH-YENSU (MS.)
G. K. KOOMSON
E. Y. GAEWU
CONCURRING OPINION
SACKEY TORKORNOO CJ:
Introduction
1.Article 8 the 1992 Constitution as originally promulgated made no room
for dual citizenship for Ghanaian nationals. The Constitution of the Republic
of Ghana (Amendment) Act, 1996 Act 527 repealed article 8 of the 1998
Constitution and substituted same in Act 527. It reads:
1. Article 8 of the Constitution is repealed and the following
inserted-
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8. (1) A citizen of Ghana may hold the citizenship of any other country in
(2) Without 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-
(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.” (emphasis mine)
2.Apart from introducing the right to dual citizenship into the 1992
Constitution, it is evident that the new article 8 of the 1992 Constitution,
found in Act 527, reserved certain positions in the country that that cannot
be occupied by dual citizens, by setting them out in article 8(2) (a) to (g).
3.Thereafter, the Citizenship Act, 2000, Act 591, was enacted ‘to consolidate
with amendments the law relating to the citizenship of Ghana, to state in respect of
citizenship by birth the legal conditions applicable at the given points in time, to
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bring the law in conformity with the Constitution and to provide for related
matters’.
Section 16 of Act 591 provides:
16. Dual citizenship
(1) A citizen may hold the citizenship of any other country in adition to the
citizenship of Ghana
(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
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(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.”
4.The plaintiff before this court has argued that sections 16 (2) (a), (h), (i), (j),
(k), (l), of Citizenship Act, 2000, Act 591 ought to be struck down as null
and void because to the extent that it adds to the list of offices that dual
citizens cannot hold, found in article 8 (2), they constitute an amendment of
article 8 of the 1992 Constitution. He also submits that to the extent that
these impugned sections constitute an amendment of article 8 (2) of the 1992
Constitution, they could only have been enacted after going through the
processes set out in article 289 (2) of the 1992 Constitution
5.Article 289 provides:
Amendment of Constitution
289 (1) Subject to the provisions of this Constitution, Parliament may, by an Act of
Parliament, amend an 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
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6. The fundamental question of Jurisdiction
To the extent that this matter requires a pronouncement on the very

constitutionality of a provision of an Act of Parliament, including whether it
lacks validity on account of having been enacted in a manner that
contravenes the directions of the Constitution, as well as being inconsistent
with provisions of the Constitution, I am satisfied that this court is properly
seised with exclusive original jurisdiction to determine same.
7. Article 1(2) and 2 (1) provide:
Supremacy of the Constitution
(2)This constitution shall be the supreme law of Ghana and any other law
found to be inconsistent with any provisions of this Constitution shall, to the
extent of the inconsistency, be void.
8. Enforcement of the Constitution
2. (1) A person who alleges that –
(a) An enactment or anything contained in or done, under te authority of that
or any other enactment; or
(b) Any act or omission of any person;
Is inconsistent with, or is in contravention of a provision of this Constitution, may
bring an action in the Supreme Court for a declaration to that effect
9. The supporting jurisprudence developed along our constitutional journey
has been well set out in the lead and dissenting opinions of my brothers.
Despite agreeing with the final orders of the majority decision in the case at
hand, that sections 16 (2) (a), (h), (i), (j), (k), (l), of Citizenship Act, 2000, Act
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591 ought to be struck down as null and void, I must point out my point of
departure with the reasoning of the majority. In the majority opinion herein,
sections 16 (2) (a), (h), (i), (j), (k), (l), of Citizenship Act, 2000, Act 591
constituted an amendment of article 8 (2). This is where I differ. And my
reason is simple.
10. Substitution of article 8 (2)
I think that it is instructive that in re-enacting article 8 of the Constitution as
found in Act 527, Parliament, in exercising its power to amend non
entrenched provisions of the Constitution, did not leave the exclusions of

offices that dual citizens cannot hold at sub clause (f). It added the
conjunctive ‘and’ to sub clause (f) and continued in sub clause (g) of article
8 (2) with the words: (g) any office specified by an Act of Parliament
11. The direction on the face of article 8 (f) and (g) of the 1992 Constitution
found in Act 527 therefore reads:
f) Director of Immigration Service; and
(g) any office specified by an Act of Parliament.” (emphasis mine)
12. Article 295 (1) defines an Act of Parliament to mean an ‘..an Act enacted by
Parliament and includes and Ordinance’. Simply, and without more. It is a
generic term of art that refers to the output of enactments by Parliament. So
what can an ‘Act of Parliament’ mean in article 8(g)? Can it be stretched
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from its generic meaning of the exercise of regular legislative power of
Parliament as provided for in article 93, or does it mean an Act of Parliament
to amend the Constitution? Contrary to the majority reasoning herein, I
think that it can only mean the exercise of the regular legislative power of
Parliament.
13. It is a trite appreciation of our constitutional order that apart from article
1 (2) already referred to, which places constitutional provisions in a
supremely separate order of law, article 11 of the 1992 Constitution further
distinguishes between the Constitution and other forms of law. It settles the
distinction between constitutional provisions as being in a higher order of
law than enactments of Parliament in Clause (1) sub-clauses (a) and (b)
Article 11 (1) of the 1992 Constitution directs:
The Laws of Ghana
11 (1) The laws of Ghana shall comprise –
a. This Constitution
b. Enactments made by or under the authority of the Parlament established by
this Constitution;
c. Any Orders, Rules and Regulations made by any person or authority under
a power conferred by this Constitution
d. The existing law; and
e. The common law.
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14. From reading article 11, it is clear that when the Constitution uses the
conjunctive ‘and’, it reflects an intention to include what follows after the
‘and’ within the group of items listed above.
Had it therefore been the intention of the framers of the Constitution to
require that the list of offices that dual citizens cannot occupy shall or may
not be expanded without the intervention of amending the Constitution
itself, it would not have made room for the expansion in article 8(f) with the
conjunctive ‘and’ and the words that followed.
15. Again, it would not have directed in article 8 (g) that the means for
expanding the preceding list should be by an Act of Parliament, if it meant
the conjunctive ‘and’ to be followed by ‘provisions of this Constitution’. The
1992 Constitution is a strident and assertive tablet of edicts. When it intends
to subject any further provision to its internally and already stated edicts, it
qualifies the permission to with the words ‘subject to the provisions of this
Constitution’. It is this language that compels a harmoniously knit thread ball
of provisions that cross reference to give strong directions for the current
democratic dispensation within the Constitution.
16. In this wise, an objective review of this language of article 8(2) (f) and (g)
will allow the appreciation of the dynamic evolution of society, and within
that anticipation, an intention not to subject the process of allowing
inclusions of new exceptions to the more strictured function of amendments
of the Constitution, rather than an Act of Parliament, which is the language
that article 8 (2) (g) clearly uses.
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Indeed, as extensively discussed in the lead judgment, this is not the first
time that sections 16 (2) (a), (h), (i), (j), (k), (l), of Citizenship Act, 2000, Act
591 have been attacked. In Asare v Attorney General [2012] 1 SCGLR 460,
the Plaintiff therein sought inter alia, declaratory reliefs that section 16 (2) of
Act 591 is null and void on account of contravening the letter and spirit of
article 15 (1), article 17, and violating the principle of equal citizenship.
17. This court, by majority decision also, found no reason to accede to the
invitation to strike down section 16 (2) of Act 591 or any part of it, except
section 16 (2) (m), which delegated the power conferred on Parliament
under article 8 (g) to specify offices from which dual nationals were
excluded, to the Minister; holding it to be a violation of the sound policy
not to delegate delegated authority embodied in the maxim delegatus non
potest delgare. The Court pointed out that the spirit of the Constitution
necessarily places legislative discretion on Parliament, along with the

power under article 8 (2) (g) to specify any office from which dual citizens
would be disqualified from holding. I absolutely align with this evaluation
that did not consider the operationalization of article 8 (2) (g) as requiring
an amendment of the Constitution through adherence with article 289, 290
and 291, but through the enactment of an Act of Parliament.
18. The caution in Ghana Lotto Operators Association and 6 Others v

National Lottery Authority {2007-2008} 2 SCGLR 1088 that a ‘more modern
approach would be to see the document (constitution) as a living organism’,
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should help to guide acceptance of the clear words of articles 8(2) (f) and (g),
as was done in Asare v Attorney General.
This objective approach to interpreting the clear words of article 8 (2) (g),
spurns an unnecessary reach for an inferred subjective intent behind the
words ‘Act of Parliament’ in article 8 (2) (g), to mean ‘Act of Parliament to amend
this Provision’. It allows this court to take the constitutional text as it is, and
interpret it to allow for Parliament providing for the changing needs of a
growing parliamentary democracy on the strength of the Constitutional

direction given in article 8 (2) (g).
Should the fossilized approach that demands an amendment of the
Constitution even when the Constitution itself provides for inclusions
through an Act of Parliament carry the day in the particular matter under
consideration, I think that this court would lose the guiding light from
Tuffuor v Attorney –General [1980] GLR 637, that has served our
constitutional journey well.
19. The 1992 Constitution has its spirit, and with the growth and
development of democracy, it has found its way clear to removing the
strictures on dual citizenship. This removal cannot be ordained as blanket
and stuck in Act 527 when the Constitution itself makes room for
Parliament to take account of the principles behind this step and bring
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considerations to bear in determining which other offices may be subject to
the exclusions directed in article 8 (2).
20. Thus, I would hold that to the extent that the Citizenship Act, 2000, Act
591 was not a statute intended to amend the Constitution, and the framers
of the Constitution had, in Act 527, provided for extension of the offices in
article 8(2) (f) and (g) through an Act of Parliament, Parliament did not
contravene article 289, and article 290 when it included sections 16 (2) (a),
(h), (i), (j), (k), (l), of Citizenship Act, 2000, Act 591 in Act 591.
21. From this premise, I am satisfied that the Plaintiff’s submission, that the
introductions of new offices excluded from dual citizenship holders, could
only have been done by amendment of article 8 itself through the processes
outlined in article 289 (2) is misconceived. I find it evident on the face of the
Citizenship Act, 2000, Act 591, that unlike the Constitution of the Republic
(Amendment) Act 1996 Act 527, Act 591 was passed to provide for matters
relating to citizenship, and the power of Parliament through an Act of
Parliament, to make provision for inclusion to the offices that dual citizens
cannot hold, was conferred on Parliament by article 8 (g) of the Constitution.
22.Inconsistency with and contravention of the Constitution.
But this is as far as I go in disagreement with the majority. I note the
submission of Plaintiff specifically, that section 16 (2) (a) includes the Chief
Justice and Justices of Supreme Court in the offices that dual citizens are
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excluded from when article 128 (4) provides for the qualification required
to hold these offices in these words:
4) A person shall not be qualified for appointment as a Justice of the Supreme
Court unless he is of high moral character and proven integrity and is of not less
than fifteen years’ standing as a law
23. It is the submission of the Plaintiff that the inclusion of these offices
within section 16 (2) of Act 591 compels an additional qualification in order
to hold these offices – that the person appointed to the office must also not
hold dual citizenship. Further, by adding this additional qualification,
article 16 (2) (a) has necessarily amended article 128 (4). This is true and
results from simple inference.
24. It is also clear that unlike article 8 (2), the Constitution makes no room
for addition to the qualifications for these offices in article 128 (4) beyond
the provision that creates the qualification – that is – article 128 (4).
Further, article 128 (4) is not an entrenched provision, and could therefore
be amended by an Act of Parliament in the same manner that article 8 was
in Act 527. But this has not been the case. In the absence of an objective
expression within the Constitution to allow an expansion of the
qualification criteria of these offices by a means other than a constitutional
amendment, and while it remains in its original and virgin form, any
51

TLP/SC/2024/145
change to the said qualifications undeniably constitutes an amendment of
the Constitutional provisions in article 128 (4) and would need to comply
with article 289, article 291, and article 292.
25. The mandatory edict that creates the Parliament of Ghana in Article 93,
is an entrenched provision, and Parliament is well guided to constantly bear

in mind the provision in article 93 (2) that
2) Subject to the provisions of this Constitution, the legislative power of Ghana shall
be vested in Parliament and shall be exercised in accordance with this Constitution
26. Conclusion
For these reasons, I see that the issue of whether section 16 (2) constituted
an amendment of the Constitution should be dealt with in two layers. First,
on a consideration of whether, all of section 16 (2) constitutes a
constitutional amendment on account of it adding the list of officers set out
in article 8 (2), the answer ought to be no. However, on the issue whether
section 16 (2) (a) constitutes a constitutional invalidity on account of being
an amendment of article 128 (4) without the audit of the necessary
constitutionally mandated process, the answer is yes. And this entitles the
plaintiff to his relief (a), and an order striking down section 16 (2) (a).
Again, to the extent that the facts of this case reveal no support of a
meticulous attention to any constitutional measures applicable to the
52

TLP/SC/2024/145
Commissioner Value Added Tax Service, Director-General Prisons Service,
Chief Fire Officer, Chief director of a Ministry, or the rank of a Colonel in
the Army or its equivalent in the other security services who are the subject
offices included in sections 16 (h) – (l) of Act 2000, I find no merit in
disagreeing with the conclusions of the majority.
G. SACKEY TORKORNOO (MRS.)

(CHIEF JUSTICE)
DISSENTING OPINION
PWAMANG JSC:
My Lords, the fourth republican Constitution of Ghana that came into force
on 7th January, 1993 provided under article 8 thereof, sub-titled “Dual
Citizenship”, as follows;
(1) 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.
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By this provision it was generally prohibited for a Ghanaian to maintain dual
citizenship. However, on 31st December, 1996, this provision of the

Constitution was amended by the Constitution of the Republic of Ghana
(Amendment) Act, 1996 (Act 527). It repealed the original article 8 and
inserted a new article 8. The new article 8 is as follows;
(1) A citizen of Ghana may hold the citizenship of any other country in
(2) Without 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-….
Clause (2) lists a number of public offices that a Ghanaian dual citizen is
prevented from holding and then adds a general provision in the following
words; “(g) any office specified by an Act of Parliament.”
Following the amendment, the legislature passed a general law on Ghanaian
citizenship, the Citizenship Act, 2000 (Act 591) and it included provisions
on dual citizenship. Under section 16(2) of Act 591 the legislature lists a
number of public offices that a Ghanaian with dual citizenship is prohibited
from occupying. However, this new list of offices a dual citizen is
disqualified from occupying differs from the list in clause (2) of article 8, in
that it has added to the prohibited offices the offices of Chief Justice and
Justices of the Supreme Court; Commissioner, Value Added Tax Service;
54

TLP/SC/2024/145
Director-General, Prisons Service; Chief Fire Officer; Chief Director of a
Ministry and the office of the of a Colonel in the Army or its equivalent in
the other security services. These offices were not mentioned in article 8 as
amended. Nonetheless, apart from the office of Chief Justice and Justice of
the Supreme Court, the other offices added by section 16(2) appear to be
substantially similar to offices prohibited under article 8.
Although section 16(2) of Act 591 has been on the statute books for more
than twenty years, the plaintiff, a lawyer, has now decided to challenge the
constitutionality of the part of the section that added to the list of prohibited
offices. It must be noted that the grievance of the plaintiff is not in respect of
the policy justification for these additional restrictions on Ghanaian dual
citizens. His concern is about the validity of the legal processes by which the
new limitations have been added. He filed a writ in the Supreme Court on
10th July, 2023 and claimed for the following reliefs;
1. A declaration that Section 16(2)(a) of the Citizenship Act, 2000 (Act 591),
is null and void on account of having been passed in a manner that is
Constitution.
2. A declaration that Sections 16(2)(h) - (l) of the Citizenship Act, 2000 (Act
591), are null and void on account of having been passed in a manner that is
Constitution.
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TLP/SC/2024/145
3. An order striking down Sections 16(2) (a) and (h)-(l) of the Citizenship Act,
2000 (Act 591) as being unconstitutional.
4. Any further orders and/or directions as the Court may deem fit.
On 12th July ,2023 the plaintiff filed a statement of case in which he argued
his case but he did not accompany it with an affidavit verifying the facts
stated in his statement of case as required by Rule 46(2) of the Rules of the
Supreme Court, 1996 (C.I.16). I intend to waive this non-compliance which
the defendant did not raise, but as will soon be explained in this opinion, the
plaintiff has committed other fundamental breaches that go to the
jurisdiction of the court and these I shall take up.
The gravamen of the case of the plaintiff is captured in the following passage
in his statement of case;
“Although neither described as a constitutional amendment nor (as with
section 1 of Act 527) as repealing and replacing Article 8 of the Constitution,
section 16(2) of Act 591 clearly “amended” or “altered” the list of offices that
dual citizens cannot hold. Specifically, it adds these offices: Chief Justice and
Justices of the Supreme Court; Commissioner, Value Added Tax Service;
Director-General, Prisons Service; Chief Fire Officer; Chief Director of a
Ministry; the office of the of a Colonel in the Army or its equivalent in the
other security services.”
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TLP/SC/2024/145
The defendant filed a statement of case in answer on 26th July, 2023 with an
accompanying verifying affidavit. The defendant in his statement of case did
not object to the plaintiff’s non-compliance with Rule 46(2) of C.I.16 and even
supported the case of the plaintiff that section 16(2) of Act 591 was passed in
a manner inconsistent with article 289(2) of the Constitution. In the opening
sentence of the plaintiff’s statement of case he asserted that he brings this
action pursuant to article 2(1)(a) of the Constitution, 1992 and in reaction to
that the defendant affirms that claim by the plaintiff of properly invoking
the original jurisdiction of the court under article 2(1)(a). The defendant goes
further to add article 130(1) of the Constitution as additional jurisdictional
foundation for this suit. He argued as follows in his statement of case;
“Respectfully, the Constitution of Ghana confers on the Supreme Court
exclusive original jurisdiction in relation to the Constitution, which includes
enforcement jurisdiction, interpretative jurisdiction, and the jurisdiction to
declare an enactment as void on grounds of unconstitutionality. Of
relevance to the instant suit is the interpretative and enforcement jurisdiction
of the Supreme Court. Regarding interpretation and/or enforcement, under
Article 2(1) of the Constitution, a person who alleges that an enactment or
anything done by a person under the authority of an enactment is
unconstitutional may bring an action in the Supreme Court for a declaration
to that effect. Further, Article 130(1) generally provides for the exclusive
original jurisdiction of this Court in all matters relating to enforcement and
57

TLP/SC/2024/145
interpretation….. In the instant case, it is humbly submitted that the
Supreme Court’s jurisdiction has been properly invoked to determine these
two important questions:
i. whether section 16(2)(a), (h), (i), (j) (k) and (l) of Act 591 effected a proper
constitutional amendment of the list of offices in respect of which dual
citizens are prohibited by Article 8 of the Constitution from holding.
ii. whether the process of enacting section 16(2) (a), (h),(i),(j), (k) and (l) of
Act 591 complied with the constitutionally prescribed processes specified in
Articles 289, 290 and 291 of the Constitution to amend.”
My Lords, notwithstanding the symbiotic posturing of the parties in this
case, there arises on the face of the plaintiff’s writ and his statement of case
a substantial doubt as to whether this action raises a real constitutional
controversy for adjudication and whether the original jurisdiction of the
court has been properly invoked. The issue whether the original jurisdiction
of the Supreme Court is properly invoked in any suit is a preliminary
question that if none of the parties brings up must be taken by the court sua
sponte. In the case of Bimpong-Buta v General Legal Council [2003-2004]
SCGLR 1200, the defendant initially filed an objection to the plaintiff’s action
arguing that the original jurisdiction of the Supreme Court had not been
properly invoked. The defendant later withdrew his objection but when the
court came to consider its judgment, it suo moto took up the question of
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TLP/SC/2024/145
jurisdiction. At p.1215 of the report, Sophia Akuffo, JSC (as she then was)
explained as follows;
“Since by his suit the plaintiff has sought to invoke the original jurisdiction of the
court, we must, of necessity, ascertain whether or not our jurisdiction under articles
2(1) and 130(1)(a) has been properly invoked, even though the fourth defendant (at
that time in the person of Hon Papa Ovusu Ankumah per his counsel, Hon Mr
Ambrose Dery, the Deputy Attomey-General) withdrew at the hearing of the action
on 20 January 2004 (with the approval of the court), a notice of preliminary objection
to our jurisdiction, which he had earlier filed. In other words, does the plaintiff’s writ
properly raise any real issues of interpretation or enforcement of the Constitution
that can only be resolved by this court exercising its original jurisdiction?
Jurisdiction is always a fundamental issue in every matter that comes before any
court and, even if it is not questioned by any of the parties, it is crucial for a court
to advert its mind to it to assure a valid outcome. This is even more so in respect of
the Supreme Court's original jurisdiction, which has been described as special.”
Articles 1(2), 2(1) &(2), and 130(1) of the Constitution, 1992 which are
respectively sub-titled “Supremacy of the Constitution”, “Enforcement of
the Constitution” and “Original Jurisdiction of the Supreme Court” provide
the cause of action and jurisdictional foundation for suits challenging the
constitutional validity of enactments. They provide respectively as follows;
Supremacy of the Constitution
Article 1(2);
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TLP/SC/2024/145
The Constitution shall be the supreme law of Ghana and any other law
found to be inconsistent with any provision of this Constitution shall, to
the extent of the inconsistency, be void.
Enforcement of the Constitution
Article 2(1).
A person who alleges that -
(a) an enactment or anything contained in or done under the authority of
that or any other enactment; or
(b) any act or omission of any person; is inconsistent with, or is in
contravention of a provision of this Constitution, may bring an action in
the Supreme Court for a declaration to that effect.
(2) The Supreme Court shall, for the purposes of a declaration under
clause (1) of this article, make such orders and give such directions as it
may consider appropriate for giving effect, or enabling effect to be given,
to the declaration so made.
Original Jurisdiction of the Supreme Court.
Article 130
(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
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TLP/SC/2024/145
Constitution, the Supreme Court shall have exclusive original jurisdiction
in -
(a) all matters relating to the enforcement or interpretation of this
Constitution; and
(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 accordance with the above provisions, where a plaintiff challenges the
constitutional validity of an enactment in the Supreme Court, the settled
practice is for her to invoke articles 2(1)(a) and 130(1) of the Constitution,
1992 and to allege that the impugned enactment is inconsistent with or is in
contravention of a stated provision of the Constitution and to pray the
Supreme Court for a declaration to that effect. When the case is presented
that way, the approach of the court is to match the impugned enactment
against the constitutional provision relied on and to answer the question
whether there is inconsistency or contravention. Thus, it is a strict
requirement for invoking the original jurisdiction of the Supreme Court in
these types of cases for the plaintiff to indicate in his writ and statement of
case the specific provision of the Constitution that has been contravened by
the enactment under challenge. In Asare-Baah III v Attorney-General &
Electoral Commission [2010] SCGLR 463 this court dismissed a writ that
sought to invoke the original jurisdiction of the court to challenge the
61

TLP/SC/2024/145
constitutional validity of an enactment and the court at p 470 per Georgina
Wood CJ explained as follows;
“A court’s duty is to determine the real matters in controversy between parties
effectively. It is therefore imperative in actions of this kind, as indeed, in other civil
causes or matters, that all alleged acts of statutory and constitutional invalidity,
breaches or violations, inconsistencies or non-compliance be identified with
sufficient particularity, with nothing being left to chance or conjecture.”
In Danso v. Daaduam II & Anor. [2013-2014] SCGLR 1570, at p. 1575, the
Supreme Court, per Anin Yeboah JSC (as he then was), upheld a preliminary
objection challenging the invocation of the jurisdiction of the Court and
stated as follows:-
“The Plaintiff has invoked our original jurisdiction for the reliefs stated above. It is
therefore the duty of the Plaintiff to demonstrate to this court that our jurisdiction
has been properly invoked. This he can do by showing as per his writ and reliefs
sought that his case presented to this court raises a real or genuine issue for
interpretation or enforcement.”
From the reliefs the plaintiff endorsed on his writ as set out supra, the
provision of the Constitution that the plaintiff alleges has been transgressed
by section 16(2) of Act 591 is article 289(2) of the Constitution. That provision
is as follows;
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289(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.
To buttress the nature of the case brought by the plaintiff and supported by
the defendant, the following issues were jointly agreed by the parties for
determination by the court;
1. Whether or not Chapter 25 of the 1992 Constitution provides the
exclusive procedures for amending directly or indirectly the 1992
Constitution.
2. Whether or not section 16(2)(a) of the Citizen Act, 2000 (Act 591) was
passed in a manner that is inconsistent with and in contravention of
Article 289(2) of the 1992 Constitution.
3. Whether or not section 16(2)(h)-(i) of the Citizenship Act, 2000 (Act
591) was passed in a manner that is inconsistent with and in
contravention of Article 289(2) of the 1992 Constitution.
But, the foremost question that begs for an answer from these issues is,
whether by the impugned provisions of Act 591, the legislature sought to
amend or alter, directly or indirectly, the 1992 Constitution? The basic
assumption on which this case is built is that Act 591 needed to be passed in
conformity with article 289(2) but that would have been the case if the Act
was for the amendment of the Constitution. If Act 591 was not meant to
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TLP/SC/2024/145
amend the Constitution then it was not required to be passed in accordance
with article 289(2) of the Constitution. In the passage from the statement of
case of the plaintiff I quoted above, he said that Act 591 on its face was not
stated to be an amendment of the Constitution. He nevertheless alleges that
the Act “clearly ‘amended’ or ‘altered’ the list of offices a dual citizen cannot
hold.” How can Act 591 validly amend or alter the Constitution when the
Act was not stated to be an amendment and, secondly, when it was not
passed in accordance with article 289(2)? The plaintiff himself puts the
words amended or altered in quoted marks meaning he is aware that the Act
did not and could not have amended the Constitution. The purpose of
Parliament for enacting Act 591 is stated in its long title as follows;
“AN ACT to consolidate with amendments the law relating to the
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 and to provide for related matters,”
Being an ordinary Act of Parliament, Act 591 was legally required to be
passed in accordance with article 106 of the Constitution which provides for
the mode of exercising the legislative power. So if the manner of passage of
Act 591 is to be questioned, then the issue ought to be whether it was passed
in accordance with article 106. It is Acts of Parliament intended to amend or

alter the Constitution that would need to conform with article 289(2) and not
an ordinary Acts of Parliament which both parties say Act 591 is. In the locus
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TLP/SC/2024/145
classicus of what constitutes a genuine question for constitutional
enforcement and interpretation in Ghanaian Law, Republic V Special
Tribunal, Ex parte Akosah [1980] GLR 592, Anin JA, in the Court of Appeal
sitting as the Supreme Court, identified the types of circumstances that call
for the Supreme Court to exercise its exclusive jurisdiction of interpretation
of the Constitution. He said as follows at p. 604 of the Report;
“From the foregoing dicta, we would conclude that an issue of enforcement or
interpretation of a provision of the Constitution under article 118 (1) (a) arises in
any of the following eventualities:
(a) where the words of the provision are imprecise or unclear or ambiguous.
Put in another way, it arises if one party invites the court to declare that
the words of the article have a double-meaning or are obscure or else mean
something different from or more than what they say;
(b) where rival meanings have been placed by the litigants on the words of
any provision of the Constitution;
(c) where 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 shall prevail;
(d) where on the face of the provisions, there is a conflict between the operation of
particular institutions set up under the Constitution, and thereby raising problems
of enforcement and of interpretation.”. (Emphasis supplied).
65

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In this case, it has not been argued that any party or authority has contended
that Act 591 was passed in accordance with article 289(2) and that it was
intended to amend or alter the Constitution. Therefore, there is no basis for
the plaintiff to argue with himself that Act 591 was not passed in accordance
with article 289(2) of the Constitution when no one contended otherwise.
The defendant agrees with the position that Act 591 was not enacted in
accordance with article 289(2) of the Constitution, and that was to be
expected because, as earlier pointed out, Parliament never said they were
amending the Constitution. In fact, they said they were passing the Act to
bring the citizenship laws of Ghana in line with the Constitution. In Bilson
v Attorney-General [1993-94] 1 GLR 104, the Supreme Court unanimously
dismissed the case of the plaintiff for failure to raise a controversy for
adjudication. Adade, JSC said as follows at 107;
“I read the plaintiff's writ and statement of case, and I ask myself a simple question:
has any occasion arisen to necessitate the call for interpretation? Does the writ, or
the writ and statement of case together, disclose any occasion? Take, for instance,
the declaration sought under paragraph (b) of the writ. The plaintiff wants the court
to declare that: "(i) all persons in Ghana are equal before the law" and he himself
says that that statement is in article 17(1) of the Constitution, 1992. I agree that
article 17(1 ) of the Constitution, 1992 says so. But does the court have to declare
that the article says so? In any case, where will such a declaration take the plaintiff
or anyone else?”
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At 110-111 Hayfron-Benjamin, JSC added as follows;
“The plaintiff invites this court to give him judgment upon proof of axioms. The
answers to his plaints are obvious, self-evident and unambiguously stated in the
various articles of the Constitution, 1992 to which the plaintiff himself has referred.
This court cannot accede to sterile claims in which the defendant is bound to agree
with the plaintiff. I will also dismiss the writ.”
For instance, by issue 1 set out in the Memorandum of Issues reproduced
supra, the parties want the court to declare that Chapter 25 of the
Constitution provides the exclusive procedure for amending the
Constitution. That is plain on a reading of article 289 of the Constitution and
it does not require a declaration by the Supreme Court for it to be so. The
other issues whether section 16(2) of Act 591 was passed in a manner
inconsistent with article 289(2) are non-issues because no one has contended
otherwise. Therefore, all the substantive declarations being sought by the
plaintiff in this suit are sterile and do not raise genuine controversies so as
to excite the original jurisdiction of the Supreme Court. As these
declaratory reliefs prayed for are incapable of invoking the original
jurisdiction of the court, the ancillary relief stated as relief (3) will have no
foundation to rest on. Relief (3) which prays for an order striking down
section 16(2) of Act 591 for contravening article 289(2) may only be
considered under article 2(2) of the Constitution but the jurisdiction of the
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Supreme Court under article 2(2) does not accrue unless a declaration is first
made by the court under article 2(1). Article 2(2) is as follows;
(2) The Supreme Court shall, for the purposes of a declaration under
clause (1) of this article, make such orders and give such directions as it
may consider appropriate for giving effect, or enabling effect to be given,
to the declaration so made.
I do not find any legal justification to make a declaration that section 16(2)
of Act 591 was passed in a manner inconsistent with article 289(2) when
neither Parliament nor any other person contends that it was intended to
amend any provision of the Constitution. Since Act 591 did not say it was
seeking to amend the Constitution, it was not required to conform to article
289(2) so failure to so conform does not render it void. It is preposterous for
anyone to say that section 16(2) of Act 591 has amended article 8(2) of the
Constitution while submitting that Act 591 was not passed as a
constitutional amendment and also it was not passed in accordance with
article 289(2). Article 8(2) contained in the Constitution, 1992 as amended
has been the law from 1996 unaffected by section 16(2) of Act 591 and
although the two provisions may appear contradictory in some respects, that
is not the issue presented to the court by the parties in their pleadings. The
reliefs sought by the plaintiff are premised on the mode of passage of Act
591 by Parliament and not on the content of the Act. Therefore, the case as
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filed by the plaintiff does raise a real constitutional controversy so there is
nothing for the court to determine.
The Supreme Court does not take delight in dismissing cases filed on
grounds of procedure, but the court has over the years jealously policed the
invocation of its exclusive original jurisdiction such that no matter how
beneficial a pronouncement by the court on the merits of a case may appear,
the court has stood firm in insisting on the proper invocation of its
jurisdiction. See; Gbedema v Awoonor Williams (1970) 2 G&G 438; Tait v
Ghana Airways Corporation (1970) 2 G&G 527, Edusei v Attorney-General
[1996-97] SCGLR 1; and Adumoa II and Others v Adu Twum II [2000]
SCGLR 165. In the very recent case of Child Rights International v
Attorney-General; Suit No; J1/16/2022, the Supreme Court in the
unreported judgement dated 28th February, 2024, dismissed an action in
which the plaintiff, a civil society organisation dedicated to the welfare of
children, prayed the court to make orders to protect street children who the
plaintiff claimed were neglected by the authorities. The court did not
consider the merits of the case but unanimously dismissed it. Speaking
through Mensa-Bonsu, JSC, the court said as follows;
“The plaintiff has failed to demonstrate that the jurisdiction of the Supreme Court
has been properly invoked towards obtaining reliefs that could resolve issues for
children who are the beneficiaries of the plaintiff’s concern. The constitutional
provisions the plaintiff relies on to make its case are of doubtful utility. So also are
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the very many foreign cases which the plaintiff has cited. Although these may
demonstrate the depth of research undertaken on the law of other jurisdictions, they
do little to advance issues pertaining to the provisions raised by the plaintiff under
the Constitution of Ghana. The plaintiff’s action is hereby dismissed.”
My Lords, I am of the firm opinion that to determine the plaintiff’s claim of
unconstitutionality of section 16(2) of Act 591 on grounds other than those
stated by the plaintiff himself would be for the court to construct a case for
the parties that is at variance with their pleadings. No matter how popular
it may sound for the court to locate a provision of the Constitution other than
article 289(2) that may be inconsistent with section 16(2) of Act 591, such an
approach would set a dangerous precedent that may come back to hunt the
court in the future and I do not wish to be part of it. If we dismissed a case
concerning the welfare of street children without delving into the merits,
why should I make a case for a lawyer plaintiff who is represented by
another lawyer and has sued on a matter that has not been shown to have
occasioned any injustice.
In conclusion, I hereby strike out the suit for failing to properly invoke the
original jurisdiction of the Supreme Court.
G. PWAMANG
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TLP/SC/2024/145

SUIT NO. J1/18/2023 24th APRIL, 2024

thelawplatform.online The Law Platform @DeLaw_Platform the_law_platform @thelawplatform

1. The Plaintiff, a legal practitioner and a citizen of Ghana, on the 10 th of

July, 2023 invoked our original jurisdiction pursuant to Article 2(1) of

the Constitution praying for the following reliefs:

i. A Declaration that Section 16(2)(a) of the Citizenship Act, 2000 (Act

is inconsistent with and in contravention of Article 289(2) of the 1992

inconsistent with and in contravention of Article 289(2) of the 1992

that the original formulation in the Constitution rendered the holding

of dual citizenship by individuals 21 years and older, unconstitutional

unless the said status was procured by reason of marriage.

The said provision, which was captured under Article 8 provided as

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“(1) 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.

(2) A person who becomes a citizen of Ghana by registration and immediately

Second Schedule to this Constitution and made and registered such

declaration of his intentions concerning residence as may be prescribed by law,

extended period has not expired.

acquisition or possession of the citizenship of a country other than Ghana

shall, on the renunciation of his citizenship of that other country, become a

marries a citizen of that country to renounce the citizenship of his own

country by virtue of that marriage, a citizen of Ghana who is deprived of his

citizenship of Ghana by virtue of that marriage shall, on the dissolution of that

thelawplatform.online The Law Platform @DeLaw_Platform the_law_platform @thelawplatform

marriage, if he thereby loses his citizenship acquired by that marriage, become

3. This position was however subsequently amended by the

Constitution of the Republic of Ghana (Amendment) Act, 1996 (Act

527) which reversed the general prohibition of dual-citizenship, with

allowed to occupy certain public offices which were enumerated

within the said Act.

Section 1 of the said Act provided as follows:

1. Article 8 of the Constitution is repealed and the following

addition to his citizenship of Ghana.

(2) Without 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-

(a) Ambassador or High Commissioner;

(b) Secretary to the Cabinet;

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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.”

therefore, validly amended the initial terms of the constitution, to

usher in a new dispensation under which Ghanaians could validly

hold dual citizenship. This shift in the constitutional position was

however subject to the condition that such holders of dual citizenship

were ineligible to occupy the offices specified in Article 8(2) above.

591) which received presidential assent on the 19 th of December, 2000,

in section 16(2)(a) and 16(2)(h)-(l) purported to replace Article 8 of the

Constitution, by amending or altering the list of offices that dual

citizens could not legally hold.

The impugned section states as follows: