Full Judgment: Why Supreme Court declared Gyakye Quayson’s election unconstitutional

On May 17, 2023, the Supreme Court of Ghana among other things, declared the election of James Gyakye Quayson as the Assin North Member of Parliament, as unconstitutional and thus ordered his name to be expunged from Parliament’s records.

This was the outcome of a case filed by Micheal Ankomah Nimfah which sought inter alia a declaration that James Quayson was not qualified at the time of filing his nomination to contest as an MP in the 2020 General election.

In a 35-page judgment in the opinion of Amegatcher(JSC), the apex court resolved the issues in the case under the broad headings of jurisdiction, qualification, allegiance, preliminary objections, and·consequential directions.

Jurisdiction and Preliminary Objection

On jurisdiction and preliminary objection, the panel disagreed with the 1st defendant’s objection to the effect that the case was merely inviting the court to make a declaration in a parliamentary election that had already been decided by the High Court in Cape Coast.

Allegiance

The Supreme Court established that as far back as 2012, it was very clear that citizenship was bound up with loyalty to the State and Allegiance to it and that there is, no ambiguity when article 94(2) (a) refers to 'owing allegiance to a country other than Ghana'.

The court also made reference to jurisdictions such as Great Britain having a similar provision in their laws bounding allegiance to Citizenship.

Also, the court stated without any equivocation that article 94 (2) (a) means that to be qualified to be a member of parliament, a citizen of Ghana must not hold any other citizenship at the time when nominations are opened by the Electoral Commission for registration of candidates for election as Members of Parliament.

The effect of the renunciation of alternate citizenship

The court established that since citizenship is a matter of law and is determined by the law and the regulatory mechanisms of states, it is not a valid legal submission that a unilateral statement of renunciation of citizenship of another country should be recognized as·severance of allegiance from that country.

Further, the apex court noted that; " In the same way that the obtaining of alternate citizenship is done through due process and by legal means, we are satisfied that without a legal record granted by the State that conferred the alternate citizenship, persons who present themselves as having renounced their alternate citizenship cannot be accepted as having done so, unless they show an official record stating so from the alternate State. 

Therefore "To accept such a proposition will make a mockery of the weight that Ghana and States place on the grant of citizenship other than through birth and the rights and obligations that go with holding allegiance to the State.”

As such, the Supreme Court reiterated its position that the qualification of holding only Ghanaian citizenship must be present at the time of nomination, and not any date thereafter - in this case by 9th October 2020.

The court held per the requirements of Article 8 as amended by Act 527, and Article 94 (2) (a), that;

 “any person, who has obtained citizenship of another country other than Ghana, and who files for nomination with the Electoral Commission to contest for election as a Member of Parliament will not be qualified to contest for elections unless and until they show a record from the alternate State that they no longer hold the citizenship of that State as at the date of filing their nominations with the Electoral Commission.”

Therefore following from the above, it was held that Mr. Gyakye Quayson was not qualified to be a Member of Parliament at the time that he filed his nomination papers, at the time he stood for elections, and at the time he was declared as elected Member of Parliament, because he owed allegiance to another country as at 9th October 2020, the date when he should have satisfied the qualification criteria.

Subsequently, the panel comprising of  Dotse(JSC), Owusu(JSC), Torkonoo(JSC), Mensa-Bonsu(JSC), Kulendi(JSC ) and Ackah-Yensu(JSC)made some consequential orders that;

Upon a true and proper interpretation of Article 94(2))a) of the Constitution, 1992 of the Republic of Ghana the 1st Defendant was not qualified at the time of filing his nomination forms between 5th and 9th October 2020 to contest the 2020 Parliamentary elections for the Assin North Constituency as a Member of Parliament.

Second, upon a true and proper interpretation of Article 94(2)(a) of the Constitution, 1992 the decision of the 2nd Defendant to permit the 1st Defendant to contest the Parliamentary Elections in the Assin North Constituency when the 1st Defendant had not shown evidence of the cancellation of his citizenship of Canada is an act that is inconsistent with and violates Article 94(2)(a) of the Constitution, 1992 of the Republic of Ghana.

Third, upon a true and proper interpretation of Article 94(2)(a) of the Constitution, 1992 of the Republic of Ghana the election of the 1st Defendant as Member of Parliament for Assin North Constituency was unconstitutional.

Fourth, upon a true and proper interpretation of Article 94(2)(a) of the Constitution, 1992 of the Republic of Ghana the swearing in of 1st defendant as Member of Parliament for the Assin North Constituency was unconstitutional, null and void and of no legal effect.

Fifth, Parliament is ordered to expunge the name of the 1st defendant James Gyakye Quayson as Member of Parliament for Assin North Constituency.

Read the full judgment on Dennislaw.