Of Dual Citizenship and Allegiance: Emotive or Juridical

12715-Dualnationalitypassport-1342092104-492-640x480Apparently, there is a raging social media debate on Article 8 of the Constitution. That Article allows Ghanaians to be dual citizens. However, it bars dual citizens from holding certain public offices. For example, a dual citizen cannot become President or Vice, Ambassador or High Commissioner, Member of Parliament, Inspector-General of Police, Chief of Defence Staff, etc.

Dual Citizen

A dual citizen is a person who is a citizen of two countries. Within this context, a Ghanaian is a dual citizen if he holds the citizenship of a country in addition to that of Ghana at the same time. The beginning point of the discussion (which is also the basic rule) is that every person automatically owes allegiance to the country of which he is a citizen. This also means that a dual citizen owes allegiance to two (or more) countries. At the core of the discussion, therefore, is the question of ‘allegiance.’ Consequently, one’s understanding of ‘allegiance’ within this context is very fundamental to the discussion. I’ll be explaining ‘allegiance’ very soon; but before that let me just quickly scope out the debate.

The Debate Sides

One side of the discussion – the inclusion view – argues that there is no real gain in barring dual citizens from holding these public offices. To them, dual citizens, if allowed to hold these key offices, may well be the solution to Ghana’s endless train of problems. This is because duals have enormous talents and expertise which they could bring to bear on those offices. “Without occupying those offices,” the argument goes, “dual citizens can’t contribute sufficiently to solving Ghana’s problems.” Based on this, the inclusionists accuse the exclusionists as inward-looking folks who fear competition.

The other side of the debate – the exclusion view – defends the bar as very helpful in preventing treachery. To the exclusionists, a mono-citizen cannot or is less likely to betray his country than a dual since he owes allegiance to only one sovereign. To the treachery argument in particular, the inclusionists would retort that in a country where poverty is rife, a mono could more easily betray her country than a dual. Indeed, that may be very true, considering the way boys are hungry these days, they could sell anything. The exclusionists’ pushback is that: well, if you think dual citizenship doesn’t have a downside, then, single citizenship would also not have an advantage; so, nationality as a whole shouldn’t matter in getting people into public offices – let’s just throw all these nationality issues away and look for competence only, even for the presidency!

I, myself, am confused as to which side of the debate to belong. Therefore, the purpose of this short note is not to suggest, propose or indicate, even remotely, the better of the two sides. I only wish to, in my own small way, make the debate a little more informed.

Allegiance not an Emotive Concept

Okay; as one could already observe from these snippets of arguments, both sides of the discussion have been very creative, committed and forceful in making their case. Interestingly, these snippets of arguments also tell us that their forcefulness, though admirable, is premised on an honest misconstruction of the most critical element in the discussion – ‘allegiance.’ They seem to give ‘allegiance’ an emotive meaning only. To them, allegiance is the feeling of loyalty, fidelity or faithfulness towards a country. So, they often use football game to illustrate their arguments whether for or against. They ask questions like: how would Milovan Rajevac feel while coaching Ghana in a football match between Ghana and his country, Serbia (I think, I saw this one in the Asare v A-G case or so)? They also would ask – how did Jerome Boateng feel about playing for Germany against Ghana?

Indeed, how a person feels in these situations matters in measuring their output and commitment. However, I’m not particularly sure how that feeling translates into how ‘allegiance’ is determined in this context. I’m encouraged to say that ‘allegiance’ as used within the context of citizenship is too serious a matter to be left to feelings and emotions; not least because there is no art to find a man’s feeling on his face.

Allegiance is Juridical

‘Allegiance’ go way beyond these emotive attributes. It doesn’t simply connote a feeling of indebtedness, fidelity or loyalty. Rather, the word carries with it a bundle of well-defined legal incidents and consequences. It usually entails defined duties of a citizen to her country. It equally entails the rights of a country to punish the citizen should she fail in performing those duties. It speaks directly to the question of State protection to citizens as well. At law, it is what a citizen gives in return for the protection that her country provides her.

For instance, a citizen has a duty to defend the constitution of his country and, usually, to defend the government which is, for the time being, in place. On the other hand, the country has the right to commit the citizen for treason and punish her as such should she do anything that betrays this duty. It goes without saying, too, generally, that a non-citizen cannot commit treason – he doesn’t owe allegiance to the sovereign in question. This is a well-established rule under both domestic and international law. To this end, a person’s allegiance to a country is determined by such objective (rather than subjective or emotive) criteria as citizenship, domicile, etc.

So, in Carlisle v. US (1872) for example, a group of aliens were manufacturing and selling gunpowder to the rebel Confederate army to enable them overthrow the federal government. These guys were doing pure business. They didn’t have any special feeling towards any of the waring parties. As a matter of fact, they could and were ready to sell to both sides. The US Supreme Court held as follows:

“He who, being bound by his allegiance to a government, sells goods to the agent of an armed combination to overthrow that government, knowing that the purchaser buys them for that treasonable purpose, is himself guilty of treason or a misprision thereof.” 

Of a more current and comprehensive help is the English case of Joyce v DPP (1946). Here the accused person, an American citizen who also held British passport was caught translating English news for the Nazi during World War II. No one knew his feelings. The key issue that came before the House of Lords was whether a person who held a passport (but who is merely a naturalised citizen) owes allegiance to His Majesty, the King of England. Answering this question, Lord Jowitt LC said:

“In these circumstances, I am clearly of the opinion that so long as he holds the passport he is within the meaning of the statute a man who, if he is adherent to the King’s enemies in the realm or elsewhere commits an act of treason.”

Joyce v DPP is also the authority for saying that passport is conclusive evidence of allegiance; so that an MP who holds a passport of another country owes allegiance to that country, for which reason she should be removed from Parliament and punished for perjury.

From these 2 cases alone (and there are a litany), I’ve found that ‘allegiance’ is a juridical (rather than emotive) construct. It’s not determined by the subjective criteria of how the person really feels about a country, but rather by clearly stated objective criteria of facts, law or facts mixed with law – citizenship, holding of passport, domicile, etc, – all of which entitles a person to the protection of the sovereign. This is no brainer, the fact that a person feels great about Russia doesn’t mean that he owes allegiance to Russia. And the fact that you’re Gambian doesn’t also mean that you feel love for the Gambia; but you’re held at law, conclusively, to owe allegiance to the Gambia. How, then, may one justify the claim that ‘allegiance’ is an emotive concept?

Countries and Dual Citizenship

A dual citizen may be likened to a servant of two masters. His acts don’t really affect him. They more affect the relationship between the two masters. It also has the potential of limiting what each master may do in respect of this dual-servant. Masters don’t like that. Because of this, even the most liberal countries of the world look at dual citizenship with suspicion. It has always been the case. So, the US Department of State, for instance, would say “the U.S. Government does not encourage dual nationality … Claims of other countries upon U.S. dual-nationals often place them in situations where their obligations to one country are in conflict with the laws of the other.” In fact, other countries don’t allow it at all.

Illustration: What if your energy minister was a dual citizen – Ghanaian and American; and, then, the US (as it usually does) bars its citizens from dealing with the GNPC and Ghana Gas Limited. This, obviously, would have nothing to do with how the minister feels about Ghana or the US. Ghana would have to choose between extraditing the minister to the US (and fail in its primary duty to protect its citizen) or keep him here to continue working with GNPC (and face international sanctions from the US). This is just one of the ways in which dual citizenship may frustrate the relationship between two countries.

Okay, I have to go now. Having said this, I believe the debate could proceed.

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