Since the judgment of the Supreme Court on 25th June, 2020 in the consolidated suit filed by the National Democratic Congress and Mark Takyi-Banson (as plaintiffs) against the Attorney-General and Electoral Commission (as defendants), there has been a national discussion on whether the court was right in concluding that birth certificates could not be used as proof of identification in the on-going voter registration exercise.
Whilst many have disagreed with the judgment, those who agree with it do not seem to have sufficient basis for their agreement. Having personally analysed the judgment, it is clear to me that the Supreme Court was right in holding that birth certificates could not be used as proof of identity for voter registration. This article proposes to justify the judgment of the Supreme Court, by arguing that a birth certificate is not a national identification document that is capable of establishing citizenship of all Ghanaians for purposes of voter registration.
Citizenship and the right to vote
One of the sacred rights enshrined in the 1992 Constitution is the right to vote. That right exists to be exercised and enjoyed by only citizens of Ghana. As far as the democratic principle of universal adult suffrage is concerned, the right to vote remains the most fundamental right of the citizenry. Article 42 of the Constitution provides:
“Every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda.”
The meaning of this provision is clear. For a person to qualify to be registered as a voter for the purposes of public elections in Ghana, that person must satisfy the following criteria:
- He must be a citizen of Ghana;
- He must be eighteen years of age or above; and
- He must be of sound mind.
To fully appreciate the right to vote, it is important to know the various categories of citizens who qualify to be registered as voters in Ghana. Under the constitutional arrangement of Ghana, five distinct categories of citizens are recognized. Citizenship in Ghana is governed by both the 1992 Constitution and the Citizenship Act, 2000 (Act 591). The five categories of citizens are: Citizens by birth, Citizens by foundling, Citizens by adoption, Citizens by registration and Citizens by naturalization. All these citizens qualify to be registered as voters. Now, I proceed to explain these categories of citizens one after the other.
Citizens by birth
Being born in a country is one of the acceptable means by which a person acquires the citizenship of that country. This is recognized world-wide. By law, a person born in Ghana automatically acquires Ghanaian citizenship by virtue of his birth in the country. There is no controversy about this. Importantly, citizenship by birth is evidenced by the issuance of a birth certificate. Thus, a citizen of Ghana who acquires his citizenship by virtue of birth acquires a birth certificate as proof thereof. Birth Certificates are issued pursuant to the provisions of the Registration of Births and Deaths Act, 1965 (Act 301). Specifically, the Registrar of Births and Deaths is enjoined by section 11 of Act 301 to issue a birth certificate to the parents of any person born in Ghana. The primary purpose of a birth certificate is that it serves as evidence of citizenship. Beyond this, a birth certificate has no relevance.
Citizens by foundling
The law is that a child of not more than seven years of age found in Ghana whose parents are not known is presumed to be a citizen of Ghana by birth. Thus any child below or of seven years found in Ghana without known parents automatically acquires the citizenship of Ghana. What is important to observe here is that, that child acquires citizenship as though he was born in Ghana. This means that by operation of law, the child acquires citizenship by birth, and a birth certificate must be issued to the child. It may be said that citizenship by foundling is a variant of citizenship by birth.
Citizens by adoption
A child of not more than sixteen years whose parents are foreigners may become a citizen of Ghana by adoption. Where a Ghanaian adopts a foreign child, the child acquires Ghanaian citizenship by virtue of the adoption. That child cannot be issued with a birth certificate; the evidence must be a certificate of adoption.
Citizens by registration
A foreigner may become a citizen of Ghana by registration. There are two forms of this citizenship. Firstly, a foreigner of full age and capacity may apply to become a citizen of Ghana. Secondly, a foreigner who marries a Ghanaian may apply to become a citizen of Ghana by virtue of the marriage. Citizenship acquired by marriage continues even upon the dissolution of the marriage or upon the death of the Ghanaian spouse, unless it is renounced. A person who becomes a citizen by registration is issued with a certificate of registration, and not a birth certificate.
Citizens by naturalization
A foreigner of full age and capacity may acquire the citizenship of Ghana by naturalization, after fulfilling all the conditions of naturalization laid down under section 14 of Act 591. A person who acquires Ghanaian citizenship by naturalization is given a certificate of naturalization as proof thereof.
Is a birth certificate a national identification document?
The primary controversy engendered by the judgment of the Supreme Court borders on whether a birth certificate is a national identification document for purposes of voter registration. What is fundamental to note is that since 1992, all the constitutional instruments on voter registration have excluded birth certificates as proof of identification. One of the contentions of the plaintiffs in the recent case was that it was unconstitutional for the Electoral Commission to exclude birth certificates as proof of identification for voter registration for the 2020 general elections. In rejecting that contention, this is what the Supreme Court said:
“A birth certificate is not a form of identification. It does not establish the identity of the bearer. Nor does it link the holder with the information on the certificate. Quite obviously, it provides no evidence of citizenship. It therefore does not satisfy the requirements of article 42 of the Constitution. In fact, as a form of identification, it is worse than the NHI card which was held to be unconstitutional as evidence of identification of a person who applies for registration as a voter in Abu Ramadan (No. 1), supra and Abu Ramadan (No. 2), supra.” [Emphasis mine]
Having said this, the Supreme Court concluded that the non-inclusion of birth certificate as a document of identification of a person who applies for registration as a voter by C.I. 126 is not inconsistent with, or in contravention of, the Constitution, or any other law.
What should be noted about birth certificates is their limitedness in establishing citizenship in Ghana. It has already been pointed out above that the laws of Ghana recognize five different means by which a person may become a citizen of Ghana. Birth is just one of the five ways of acquiring Ghanaian citizenship. Out of the five categories of citizens in Ghana, only those who are naturally born in Ghana and those children below seven years who are found in Ghana without parents, who qualify as citizens by birth. What this means is that it is only persons born in Ghana and those presumed to be born in Ghana, who can acquire birth certificates in Ghana.
By parity of reasoning, it can be said that not all citizens of Ghana have birth certificates issued in Ghana. It is also right to say that not even all citizens of Ghana qualify to acquire birth certificates in Ghana. This is because there are many citizens of Ghana who were neither born nor presumed to be born in Ghana. All persons who became citizens of Ghana by registration (marriage), naturalization and adoption do not qualify to hold Ghanaian birth certificates. As an example, a Togolese who becomes a citizen of Ghana either by adoption, registration (marriage) or naturalization has a Togo birth certificate. The evidence of that person’s citizenship is not a birth certificate, but a certificate of adoption, registration or naturalization, as the case may be. Therefore, it is preposterous to require that all citizens of Ghana should be allowed to produce birth certificate as a document of identification for voter registration.
As far as identification for purpose of voter registration is concerned, a birth certificate is a document of limited relevance, in that it is not every Ghanaian citizen who has, or who can produce a birth certificate. Birth certificates are owned by only a cross-section of Ghanaian citizens, that is, those born in Ghana and those presumed to be born in Ghana. What we must all understand is that as far as the right to vote is concerned, the purpose of a national document of identification is to prove citizenship of the person seeking to be registered. That being so, only documents that qualify as proof of all the various categories of citizenship is acceptable. A birth certificate is not one of such documents. A birth certificate is not a national identification document that can support proof of citizenship of all Ghanaians. This is what the Supreme Court meant when it said a birth certificate “provides no evidence citizenship. It therefore does not satisfy the requirements of article 42 of the constitution.”
For purposes of public elections it is always safe and important for the means of identification of voters to be general, and not one applicable to only a cross-section of the citizenry. This would ensure that no citizen is unduly disenfranchised. It is clear that a birth certificate is not a document of general application as far as proof of citizenship is concerned. Not every citizen of Ghana has a Ghanaian birth certificate. The Supreme Court was therefore right in holding that the non-inclusion of birth certificates as document of establishing citizenship in C.I. 126 does not violate the Constitution or any other law.
The author is a legal practitioner with the Adom Legal Consult in Sunyani, an author and a lecturer. You may send your comments, questions and corrections if any to [email protected]