Electoral Commission to conduct first by-election of eighth parliament in Assin North

The Electoral Commission (EC) of Ghana is expected in the coming days to announce modalities and timelines for the first by-election of the eighth parliament of the Fourth Republic, which will be held in Assin North in the Central Region.

The by-election has been made necessary, seven months after the eighth parliament was sworn in to office, by a judgment today (28 July 2021) in the Cape Coast high court, presided over by Justice Kwasi Boakye, in the election petition case between Michael Ankomah-Nimfah (the petitioner) and James Gyakye Quayson (the first respondent) and the Electoral Commission of Ghana (the second respondent).

On 30 December 2020, Michael Ankomah-Nimfah, a private citizen, filed a parliamentary election petition at the Cape Coast high court challenging James E Quayson’s eligibility to be a Member of Parliament. The petition contended that at the time Quayson filed his nomination to contest the parliamentary elections – between 5 and 9 October 2020, when the EC opened nominations – he held Canadian citizenship in addition to his Ghanaian citizenship, in violation of Article 94 (2)(a) of the Constitution of the Republic of Ghana 1992, Section 9(2)(a) of the Representation of the People Act 1992 (PNDCL 284) as amended, as well as the Public Elections Regulations 2020 (CI 127).

James E Quayson polled 17,498 votes in the 7 December 2020 election which has now been nullified, against 14,793 by the New Patriotic Party’s Abena Durowaa Mensah, his closest challenger.

Reliefs sought by petitioner

The petitioner, Michael Ankomah Nimfah, essentially prayed the court for seven reliefs against the respondents – James Gyakye Quayson and the Electoral Commission of Ghana. The reliefs were:

1. A declaration that the filing of parliamentary nomination forms by the first respondent, when he held a Canadian citizenship at the time of filing the said nomination form between 5 and 9 October 2020, violates Article 94 (2)(a) of the Constitution of the Republic of Ghana 1992, Section 9(2)(a) of the Representation of the People Act 1992 (PNDCL 284) as amended, as well as Public Elections Regulations 2020 (CI 127), and the filing was illegal, void and of no effect whatsoever.

2. A declaration that the decision by the second respondent to clear the first respondent to contest parliamentary elections in the Assin North constituency when the first respondent was not qualified to be a candidate on account of his holding dual nationality violates Article 94 (2)(a) of the Constitution of the Republic of Ghana 1992, Section 9(2)(a) of the Representation of the People Act 1992 (PNDCL 284) as amended as well as the Public Elections Regulations 2020 (CI 127), and the decision is therefore void and of no effect whatsoever.

3. A declaration that the decision by the second respondent (the Electoral Commission) to allow the first respondent to contest the parliamentary election in the Assin North constituency, when he held a Canadian citizenship at the time of filing his nomination form, violates Article 94 (2)(a) of the 1992 constitution, the Representation of the People Act 1992 (PNDCL 284) as amended, as well as the Public Elections Regulations 2020 (CI 127) and the decision is therefore void and of no effect whatsoever.

4. A declaration that the first respondent’s election as the Member of Parliament for the Assin North constituency is null and void and of no effect whatsoever as it violates Article 94 (2)(a) of the Constitution of the Republic of Ghana 1992, Section 9 (2)(a) of the Representation of the People Act 1992 (PNDCL 284), as amended, as well as the Public Elections Regulations 2020 (CI 127), being laws regulating parliamentary elections in Ghana.

5. A declaration that the first respondent at the time of the parliamentary elections in the Assin North constituency was not qualified to contest as a candidate in the Assin North constituency in accordance with the electoral laws for the time being in force in Ghana.

6. An order of the court cancelling the parliamentary elections in the Assin North constituency and further orders directed at the second respondent to conduct fresh elections in the Assin North constituency.

7. An order of perpetual injunction restraining the first respondent from holding himself out as the Member of Parliament-elect for the Assin North constituency or presenting himself to be sworn in as a Member of Parliament.

Contention of toppled Assin North MP

The first respondent (James Gyakye Quayson) filed his answer to the petition on 21 January 2021 and amended his response with the leave of the court on 30 March. In his amended answer to the petition, he contended that the petition lacked any legal basis, was incompetent and lacked any factual basis.

He argued that it was only intended to undermine the sovereign will of the people of the Assin North constituency who validly voted for him. According to him, the petition ought to be dismissed.

Further, he said that at the time the second respondent (the Electoral Commission) opened nominations and he filed his nomination forms, he was not disqualified from standing for elections by any law in force in Ghana.

He contended that owing allegiance to another country other than Ghana within the meaning of Article 94 (2)(a) of the 1992 constitution does not and cannot mean that the person is necessarily a dual citizen as the petitioner seemed to suggest and that if the framers of the 1992 constitution intended that to be the case, they would have expressly stated so in Article 94 (2)(a).

Therefore, to him, within the intendment of Article 94 (2)(a) of the 1992 constitution, he was only required not to owe allegiance to any other country other than Ghana, which he did by disavowing his allegiance to Canada in 2019 before the commencement of the nomination processes.

Consequently, he said, at the time of filing his nomination forms to contest the parliamentary elections for the Assin North constituency, he did not hold both Canadian and Ghanaian citizenship. This was because in December 2019, he said, he had renounced his Canadian citizenship by filing an application to that effect, subject to the issuance of a certificate of renunciation, which constitutes an administrative act and serves as evidence of the fact of renunciation.

Therefore, neither the 1992 constitution nor PNDCL 284 as amended, nor even Act 451, which the petitioner was relying on heavily, nor indeed any other law in Ghana, states in what shape or form or manner renunciation of citizenship of another country and or allegiance owed to another country other than Ghana must take or crystallise, Quayson argued.

More precisely, he said that no law in Ghana states that renunciation of the citizenship of another country by a Ghanaian or disavowing of allegiance owed to a country other than Ghana takes effect only when a certificate of renunciation is presented to the person who seeks to renounce the said citizenship.

It was Quayson’s case that before he filed his parliamentary nomination forms with the second respondent, he met the requirement of Article 94 (2)(a) of the 1992 constitution because he had renounced his Canadian citizenship. He was only awaiting the issuance of the certificate of renunciation, which only constitutes evidence of renunciation.

Consequently, at the time the second respondent (the Electoral Commission) opened the filing of parliamentary nominations, he was eligible and qualified under the electoral laws of the country to run to become a Member of Parliament. He admitted that the certificate of renunciation was issued to him only in November 2020, just before the 7 December parliamentary elections, but contended that at the time of filing his parliamentary nomination papers with the second respondent he had renounced his Canadian citizenship.

He added that, as an applicant renouncing his Canadian citizenship, he had no control over the process of issuing the certificate of renunciation because that was the primary duty of Canadian officials and not his.

He also explained that the delay in issuing the certificate of renunciation, which is an administrative act, was caused by a two-month lockdown of administrative facilities. Quayson stated that generally, it takes between six and nine months to complete the process of renunciation and issue a certificate to certify that this has been done, but the process was derailed by the two-month lockdown of administrative facilities worldwide.

The court’s decision

The court, after establishing that it had jurisdiction to hear and determine the application before it, zeroed in on the English translation of James Gyakye Quayson’s certificate of renunciation of Canadian citizenship, issued in French by the Canadian authorities. The certificate states as follows:

Name                         :       JAMES GYEKYE QUAYSON.

Date of Birth             :       09/10/1952.

Place of birth            :       Ghana

This is to certify that the person named above has formally renounced Canadian citizenship and pursuant to the Citizenship Act will cease to be a citizen on 26/11/2020.

This information from the certificate of renunciation, and nothing more, is completely conclusive. It caused the damage and destroyed the first respondent’s case. Indeed, it settled any ambiguity surrounding when the renunciation of the first respondent’s Canadian citizenship took effect.

Therefore, the first respondent’s arguments that before the 7 December parliamentary elections and at the time of filing his parliamentary nomination forms with the second respondent he had renounced his Canadian citizenship, and that as an applicant renouncing his Canadian citizenship he had no control over the process of issuing the certificate of renunciation by the Canadian authorities, because that was their primary duty and not his, were not relevant.

The arguments that the delay in issuing the certificate of renunciation, which is an administrative act, was caused by a two-month lockdown of administrative facilities and that generally the process of renunciation and issuance of the certificate of renunciation takes six to nine months to complete but the process was derailed by a two-month-long lockdown of administrative facilities worldwide are preposterous, untenable, unacceptable, baseless and without merit.

Indeed, if the court had gone by them, it would have set a dangerous precedent and remained a cancerous tumour in our jurisprudence. Was it Quayson’s case that, like Claudio, the hero in Shakespeare’s Much Ado About Nothing, “he has borne himself beyond the promise of his age”?

Accordingly, the court in its consequential orders granted all seven reliefs the petitioner was seeking. The court ruled that:

a. The filing of parliamentary nomination forms by the first respondent when he held Canadian citizenship at the time of filing the said nomination forms between 5 and 9 October 2020 with the second respondent violates Article 94 (2)(a) of the Constitution of the Republic of Ghana 1992, Section 9(2)(a) of PNDCL 284 and CI 127.

b. The second respondent’s decision to clear the first respondent to contest the parliamentary election in the Assin North constituency when the latter was not qualified to be a candidate on account of his holding allegiance to Canada other than Ghana violates Article 92 (2)(1)(a) of the 1992 constitution, Section 9 (2)(a) of PNDCL 284 as amended and CI 127.

c. The decision by the second respondent to allow the first respondent to contest parliamentary elections in the Assin North constituency when he held Canadian citizenship at the time of filing his nomination forms violates the electoral laws of Ghana and the decision is of no legal consequence.

d. The first respondent’s election as Member of Parliament for the Assin North constituency in the 2020 parliamentary elections organised by the second respondent is null and void and of no legal effect whatsoever, as the election violates the electoral laws of Ghana.

e. At the time of the parliamentary elections in the Assin North constituency in 2020, the first respondent was not qualified to contest as a candidate in accordance with the electoral laws of Ghana.

f. The court thereby cancelled the parliamentary elections in the Assin North constituency organised in December 2020 and further ordered the second respondent to conduct fresh parliamentary elections in the Assin North constituency.

g. The first respondent was thereby restrained perpetually from holding himself out as Member of Parliament-elect for Assin North constituency and/or presenting himself to be sworn in as a Member of Parliament.

Costs

Justice Kwasi Boakye’s court awarded costs of GHC30,000 against the first respondent (the unseated MP for Assin North, James Gyakye Quayson), in favour of the petitioner.

The court further ordered an additional GHC10,000, also against the first respondent, in favour of the Electoral Commission (the second respondent).

Click on the link below to read the full decision by the Cape Coast high court

Judgment of the Cape Coast High Court on the Assin North Parliamentary Seat

Wilberforce Asare

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