In this article, I present equal citizenship as a fundamental principle animating the 1992 Constitution. I also argue that the principle is under imminent threat and danger. The purpose of the article is to call for a united and sustained effort to protect the principle and to avoid becoming a society of unequal citizens. I start by defining equal citizenship and describing its constitutional foundations. This is followed by a discussion of areas where equal citizenship is currently under severe attack. Briefly, the areas are: (1) some citizens are banned from holding certain unelected public offices; (2) some citizens are banned from holding certain elected public offices; (3) some citizens’ votes count more than others; (4) some voting laws are not enforced with the sole purpose of disenfranchising some citizens. I conclude with strategies that the citizens under attack must pursue to win this war on equal citizenship. WHAT IS EQUAL CITIZENSHIP? The Constitution addresses citizenship from two perspectives: In chapter 3, it focuses on citizenship as status and delineates who is a Ghanaian citizen. In chapter 7, it focuses on citizenship as a bundle of rights and delineates the rights that accrue to only and all citizens. Thus, citizenship status and citizenship rights are inseparable and represent different sides of the same coin. This is an extremely important concept because it highlights that except as severed by the Constitution itself, any actions to separate status and rights are presumptively unconstitutional. In Chapter 3, the Constitution stipulates the various ways that one can become a Ghanaian. These include grandfathered citizenship (those who were citizens before 1992), blood citizenship (anyone born anywhere to at least one Ghanaian citizen), child citizenship (children who are less than 8 years and found in Ghana or less than 16 years and adopted) and marriage citizenship (anyone married to a Ghanaian can apply to become a citizen). In Chapter 7, the Constitution stipulates that citizens have the unfettered right to vote. This right has several derivative rights, including the right to be registered, the right to participate fully and equally in the political process, the right to cast a ballot, the right for the ballot to be counted, the right for the ballot to be weighed equally, the right to run for elected office, the right to hold unelected public office, and the right to finance a candidate. In some rare instances, the Constitution itself severs status and rights. For instance, only 18 year olds can vote (but notice here that it is assumed their parent or guardians will participate on their behalf). Only those of sound mind can vote (but notice here it is because it is assumed that they lack the capacity to participate in the political process). Those who commit high crimes or tax crimes or those who are bankrupt (and have not been discharged) cannot hold certain elected and unelected public office. However, notice this is a restriction based on serious criminal actions or those that raise questions about a citizen’s ability to be trusted. Thus, equal citizenship means every citizen, as defined by Chapter 3 of the constitution, is entitled to the same rights, as defined in Chapter 7. By embracing the doctrine of equal citizenship, the Constitution and people of Ghana rejected a Caste system that varies a citizen’s rights based on social, economic, political, religious, ethnic, resident, or other citizenship status. In effect, in Ghana, except where the constitution itself curtails these political rights, the rights cannot be disturbed. Equal citizenship affirms that whatever their inequalities of wealth, status, and power in the everyday activities of civil society; citizenship gives everyone the same status as peers in the political public. It is not hard to understand why equal citizenship was such an important concept to those who framed the 1992 Constitution. The 4th Republic emerged from a period where “the Provisional National Defence Council (PNDC) had polarized Ghanaian society into “Citizens” (“the professionals,” the relatively well-off”) and “People” (the working classes, very junior officers, and the unemployed). The “citizens” were presumed to be corrupt, and many were put before the National Investigations Committee and Citizens Vetting Committee to explain how they came by their wealth. Soldiers were positioned behind such persons undergoing interrogation, and administered slaps, beatings and military drills, often under orders from civilian personnel.” Class warfare was something that the new Republic had to avoid. THREATS TO EQUAL CITIZENSHIP The doctrine of equal citizenship is being violated in four areas: (1) some citizens are banned from holding certain unelected public offices; (2) some citizens are banned from holding certain elected public offices; (3) some citizens’ votes count more than others; (4) some voting laws are not enforced with the sole purpose of disenfranchising some citizens. SOME CITIZENS ARE UNLAWFULLY BANNED FROM HOLDING CERTAIN UNELECTED PUBLIC OFFICES In 1996, Parliament repealed Article 8(1) of the Constitution, and substituted Article 8(1) Constitution, (Amendment Act), 1996 (Act 527). The substituted Article states, “A citizen of Ghana may hold the citizenship of any other country in addition to his citizenship of Ghana.” The effect of this amendment is that the Republic now extends dual citizenship to a broader class of citizens. This is not a problem. Parliament has the express power under Article 9(1) of the Constitution to make provision for the acquisition of citizenship of Ghana by persons who are not eligible to become citizens of Ghana. Further, Article 8(1) was not an entrenched provision of the 1992 Constitution. Therefore, Parliament had the power to amend it using the ordinary amendment procedure specified in Article 291 of the 1992 Constitution. At the same time, Act 527 sought to disqualify dual citizens from holding several specified public offices by inserting Article 8(2) into the Constitution. Article 8(2) states “[W]ithout 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 • Ambassador or High Commissioner; • Secretary to the Cabinet • Chief of Defense Staff or any Service Chief; • Inspector General of Police; • Commissioner, Customs, Excise and Preventive Service; • Director of Immigration Service; and • Any office specified by an Act of Parliament.” Subsequently, the Citizenship Act of 2000 expanded the number of public offices and granted the minister of interior the power to exclude more offices. The new list reads as follows: • Chief Justice and Justices of the Supreme Court; • Ambassador or High Commissioner; • Secretary to the Cabinet; • Chief of Defence Staff or any Service Chief; • Inspector-General of Police; • Commissioner, Custom, Excise and Preventive Service; • Director of Immigration Service; • Commissioner, Value Added Tax Service; • Director-General, Prisons Service; • Chief Fire Officer; • Chief Director of a Ministry; • the rank of a Colonel in the Army or its equivalent in the other security services; and • Any other public office that the Minister may by legislative instrument prescribe In addition, the Citizenship Regulation 2001 requires dual citizens to carry dual citizenship certificates. Under those regulations, the person must apply for Form 11 (Dual Citizenship certificate) by filling Form 10 at a cost of 200 GHC. She must have a Cover letter; Evidence of Ghanaian citizenship, Evidence of parents’ citizenship, Naturalization Certificate and 4 passport-sized Picture. A notary public, High/Circuit Judge or Head of Ghana’s Mission Abroad, must seal the Form. If satisfied, the Minister would issue the Dual Citizenship Certificate (Form 11), at a statutory fee, which is now 20 GHC. Act 527 is unconstitutional because it creates a class of citizens with fewer rights, in violation of the doctrine of equal citizenship and the Constitution. Specifically, by banning dual citizens from holding the specified offices, Act 527 curtails their right to participate fully and equally in the political life of the country. This recreates the caste system that the 1992 constitution sought to avoid. Further, Act 527 discriminates against dual-citizens and violates their dignity in violation of their fundamental human rights recognized in Chapter 5 of the constitution. It is easy to see how Act 527 discriminates against dual citizens. But the violation of their dignity requires additional elaboration. Based on case law from South Africa and other jurisdictions, human dignity is said to be violated where groups are marginalized, ignored or devalued; where minorities are excluded from decision-making processes that affect them; or where individuals are treated as objects. Clearly, the exclusions in Act 527 treat dual citizens as objects; devalues and dehumanizes them; and exclude them from decision-making processes that affect them. A potentially elegant but incurably flawed argument to support the ban is that Act 527 is an amendment of the Constitution; hence it cannot be constitutional. Simply stated, what is in the constitution cannot be unconstitutional! While it is apt to argue that a provision of the Constitution cannot be said to be unconstitutional, it is also true and even more important to realize that provisions must be put in the Constitution in only the constitutionally permissible ways. The constitution provides 2 different paths to its amendment. Article 290 provides the path for amending entrenched provisions and Article 291 is the path for amending provisions that are not entrenched. The Article 290 path is noteworthy because it requires that the amendments be submitted to a referendum held throughout Ghana. Further, the amendment can only pass if at least forty percent of the persons entitled to vote, voted at the referendum and at least seventy-five percent of the persons who voted cast their votes in favor of the passing of the bill. Further, the constitution identifies those provisions that must be amended only via Article 290. The right to vote (Article 42); the right participate in political activity intended to influence the composition and policies of the Government (Article 55(10)). These two are entrenched because they are the pillars of equal citizenship. In addition, the anti -discrimination clause (Article 17) and the dignity clause (Article 15) are both entrenched. Needless to say, any amendment of the Constitution that disturbs these entrenched provisions are void and of no effect unless the amendments are procured by following the path outlined by Article 290. And therein lies the problem with the argument that Act 527 is constitutional because it is in the Constitution! The argument is both too little and too much. It is too little because it fails to take into account the effect and implications of the purported amendment. It is too much because we have an ordinary amendment of the constitution, that its extraordinary in the way it extinguishes fundamental rights, sweeping in its impact on the body politic, and revolutionary in the way it sets aside the doctrine of equal citizenship in favour of a caste system that many of us spent our lives fighting against during the PNDC days. Undoubtedly, Act 527 is an amendment. The more interesting question is what is the effect of the amendment and was the amendment properly procured? This is an important question because, as discussed, some amendments can only be procured via a referendum. What then is the effect of an amendment of the constitution that creates a class of citizens who are excluded from holding certain public offices? In my opinion, the exclusions in Act 527 has the effect of amending the sections of the constitution that guarantee that all citizens can fully and equally participate in the political process. I also believe that the exclusions interfere with the right to vote, broadly and properly construed. In effect, the exclusions derail the concept of equal citizenship. Further, Act 527 has the effect of amending the anti-discrimination and dignity clauses of the constitution. All four clauses being entrenched provisions, the government does not have the power to amend them by using the ordinary amendment procedures in Article 291. It is also important to note that disqualifying dual citizens from holding the specified offices serves no legitimate purpose. In the alternative, the disqualification is disproportional. That is, assuming that the ban serves a legitimate purpose, the government could seek less restrictive ways to achieve this purpose than an outright ban on dual citizens. One such way is to ask the dual citizens to take a special oath! Author’s Email: kwakuazar@hotmail.com